THE QUEEN V. ONYEDIRE

• Pages: 277-280

THE QUEEN V. ONYEDIRE.

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been brought out in court at the hearing but were not. In doing this, the

magistrate was not trying the ease he was investigating it."

"A trial is not an investigation, and investigation is not the function of a court.

A trial is the public demonstration and testing before a court of the cases of the

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contending parties. The demonstration is by assertion and evidence, and the

testing is by cross examination and argument. The function of a court is to

decide between the parties on the basis of what has been so demonstrated and

tested. What was demonstrated in court at this trial failed to support the

prosecution case, and the magistrate should have dismissed the case. It was

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no part of his duty to do cloistered justice by making an inquiry into the case

outside court - not even by the examination of documents which were in

evidence, when the documents had not been examined in court and the

magistrate's examination disclosed things that had not been brought out and

exposed to test in court, or were not things that, at least, must have been noticed

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in court."

We respectfully agree with these observations and consider that the course pur-

sued by the learned Judge in regard to Exhibit "M" was not correct. Nevertheless,.

since there was, apart from this, abundant evidence to support the learned Judge's

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findings, and since we are satisfied that had he ignored Exhibit "M" he would have

come to the same decision, we ti link that this is a proper case to apply the provi-

so to Section 26(1) of the Federal Supreme Court Ordinance, as no substantial

miscarriage of justice has actually occurred; the appeal is accordingly dismissed.

Appeal dismissed.

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THE QUEEN V. ONYEDIRE.

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THE QUEEN

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RESPONDENT

V

CHRISTOPHER ONYEDIRE

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APPELLANT

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SUIT NO. FSC 356/1961

FEDERAL SUPREME COURT.

DE LESTANG,

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C.J. LAGOS

BRETT,

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F.J.

TAYLOR,

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F.J.

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30th October, 1961.

Criminal Law - trial - Defence application for adjournment to call witnesses -

reficsal - discretion of trial judge - Criminal Procedure Ordinance, Cap 43,

section 186(1).

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ISSUES:

1.

When will the refusal of a trial Judge to exercise his discretion to grant an

adjournment be question on appeal.

2.

Whether the refusal of a trial Judge to grant a late application for adjournment

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will be disturbed on appeal.

FACTS:

The Appellant was charged with and convicted of Murder. During the Prelimi-

nary Investigation before a Magistrate he stated that he had no witness to call at

his trial. In the course of his evidence before the High Court, the appellant pleaded