OBADENEJI OMOHODION (APPELLANT)

                             v.

COMMISSIONER OF POLICE (RESPONDENT)

                 (1961) All N.L.R. 619

Division: Federal Supreme Court

Date of Judgment: 26th October, 1961

Case Number: FSC 246/1961

Before: Ademola, C.J.F.

              Unsworth, F.J.J.

                                         Taylor, F.J.J.

Appeal from the High Court (West).

The appellant was charged before a magistrate and convicted of Assault occasioning Bodily Harm, contrary to section 355 of the Criminal Code.

The victim of the assault, who was the first prosecution witness, swore that the appellant "pushed his left eye" with a walking stick. The second prosecution witness, in his evidence, stated that he did not see it happen.

In his Judgment the trial Magistrate held, inter alia, that he believed the evidence of both the first and second prosecution witnesses; that there was a slight variation in their evidence as to how the injury to the eye was sustained but that one was an "amplification" of the other. He also found that the appellant got hold of the walking stick "and applied it to the head of the first prosecution witness, and dealt more blows on him resulting in the receipt by him of an injury to the left eye."

The evidence of the first and second prosecution witnesses was clearly irreconcilable as to whether the appellant pierced the left eye of the first prosecution witness with a stick; And there was no evidence whatsoever to support the finding that the appellant "dealt more blows" than one on the victim.

The Magistrate convicted as charged.

On appeal to the High Court the conviction was affirmed; the Judge holding, inter alia, that the findings of fact made by the trial Magistrate were justified and that in such circumstances the appellate Court should not disturb the findings.

The appellant appealed to the Federal Supreme Court.

HELD:

(1)     Where a trial court declares that it accepts the evidence of certain witnesses in support of the finding of a material fact, and the record shows the testimony of those witnesses to be irreconcilable on the fact as found, an Appellate Court will disregard the finding.

(2)     Where the record discloses no evidence to support a finding of the trial court, such finding will be disregarded on appeal.

Appeal allowed: Conviction of Assault under Section 351 of the Criminal Code substituted.

Ordinance referred to:-

Criminal Code, Cap. 42, sections 355, 351.

APPEAL from the High Court (West).

Akpata for the Appellant.

Eboh, Senior Crown Counsel, for the Respondent.

Taylor, F.J. (delivering the Judgment of the court):-The appellant was convicted, at the trial held in the magistrate's court, Benin, of unlawfully assaulting one Omigie Akhimien, contrary to section355 of the Criminal Code, and sentenced to a term of nine months' imprisonment with hard labour.

On appeal to the High Court, the learned Judge confirmed the conviction, holding, inter alia, that the findings of fact made by the trial Magistrate were justified and that in such circumstances the appellate court ought not to disturb the findings.

Learned Counsel for the appellant, in this Court, has argued six grounds of appeal, which may be shortly summarised into two heads as follows:-

1.        That there being evidence on record of provocation, the trial Magistrate erred in law in holding that the appellant was not provoked by the complainant. Consequently the Judge on appeal erred in confirming the conviction.

2.      That the trial Magistrate erred in law in convicting the appellant on evidence which was not on record and which amounted to his own belief as to what took place. Similarly the Judge erred in upholding the Judgment.

As to the first of these contentions, it is without substance and must fail. Learned Counsel, in arguing the other ground, has attacked the following passage in the Judgment of the trial Magistrate, which reads thus:-

I believe the evidence of the first and second prosecution witnesses. I have no cause to doubt their veracity....

There is a slight variation in the evidence of the first and second prosecution witnesses as to how the injury to the eye was sustained. I hold that the evidence of the first prosecution witness that the accused pushed his left eye with exhibit "A" is an amplification of what happened.

We are unable to understand what the trial Magistrate meant, in that context, by the use of the word "amplification", for on the evidence on record it is clear that the evidence of these two witnesses as to whether the appellant pierced the left eye of the complainant with a stick is irreconcilable. Either this took place or it did not: a statement that it did cannot under any circumstances be an amplification of a statement in which the deponent says he never saw it happen. The trial Magistrate then went on to say that:-

I believe on the evidence before me that the accused got hold of the walking stick of the first prosecution witness and applied it to the head of the first prosecution witness and dealt more blows on him resulting in the receipt by him of an injury to his left eye.

Nowhere on record is there a shred of evidence in support of this finding that the appellant "dealt more blows" on the complainant. The evidence of the two eye witness goes no further than to show that the appellant hit the complainant once on the head apart from the controversial point about the piercing of the eye.

Another unsatisfactory aspect of the trial was the absence of evidence of the medical expert, who treated the