PETER ABIOLA AND OTHERS (APPELLANTS)

                                                                                                           v.

COMMISSIONER OF POLICE (RESPONDENT)

(1961) All N.L.R. 844

Appeals from Magistrates' Court.

The appellants were tried and convicted at the Magistrates' Court of unlawfully assaulting one Victoria Obadiya. Although Victoria Obadiya gave evidence at the trial, the appellants did not cross-examine her to the effect that she was a habitual drunkard and was in the habit of quarrelling with people, nor was it suggested to her that there had been many complaints made against her to the police in the past and that a little less than two months before the trial, she had pleaded guilty to a charge of affray and was sentenced to a fine of £25 or 3 months imprisonment with hard labour. The appellants appealed against their conviction and sentence and applied to the Appellate Court for leave to adduce that evidence. They subsequently also made two successive applications for leave to file additional grounds of appeal; the first application, which was granted, sought leave to include the ground that the sentences passed were excessive. The second application, which was filed by the same Counsel, alleged misdirection and non-direction on the part of the trial court. The reason Counsel gave for his lateness in making the second application was that he had thought the appeal would not come before the court until the following session.

HELD:

(1) An Appellate Court will not grant leave to adduce additional evidence unless the evidence sought to be adduced was not available at the trial and is relevant to the issue before the court.

(2) An Appellate Court will not hear fresh evidence when to do so would amount to a re-hearing.

(3) Application to file additional grounds of appeal should be made at the earliest opportunity.

Appeals dismissed.

Cases referred to:-

R. v. Greenberg, 17 Crim. App. R. 106.

R. v. Robinson, 12 Crim. App. R. 226; (1917) 2 K.B. 108; 86 L.J.K.B. 773; 117 L.T. 160; 81 J.P. 152; 25 Cox. 762; (1916-17) All E.R. Rep. 376.

R. v. Patel, 35 Crim. App. R. 62; (1951) W.N. 258; (1951) 1 T.L.R. 1018; 115 J.P. 367; 95 S.J. 354; (1951) 2 All E.R. 29.

R. v. Matthew Udo Oton, 12 W.A.C.A. 212.

R. v. Rowland, 32 Crim. App. R. 29; (1947) K.B. 460; (1947) L.J.R. 331; 63 T.L.R. 156; 91 S.J. 177.

APPEALS from Magistrates' Court.

Haastrup (for Olowofoyeku) for the Appellants.

Awofolaju, Crown Counsel (with him Apala, Crown Counsel) for the Respondent.

Quashie-Idun, C.J.:-The appellants were convicted by Gomes, Magistrate at Ife on a charge of having unlawfully assaulted the complainant Victoria Obadiya and causing her harm.

The first and second appellants were each sentenced to a term of imprisonment with hard labour for six months. The third appellant (a woman) was fined £45 or in the alternative, sentenced to four months imprisoinment with hard labour and the fourth appellant (a school girl) was ordered to be placed under Probation and to be of good behaviour for one year.

The appellants have appealed against their convictions and have sought leave (a) to file further additional grounds of appeal and (b) to adduce fresh evidence. The Affidavit sworn to in support of the applications contains the following allegations:-

(1) That the Solicitor Mr B. Olowofoyeku now acting for us never represented us in the court below.

(2) The Solicitor has told me and I verily believe that it is necessary to file additional grounds of appeal and to adduce further evidence by Affidavit.

The grounds of appeal sought to be filed contained allegations of misdirection and non-direction against the learned trial Magistrate's Judgment and also a ground that the sentences passed on the first and second appellants were excessive. Attached to the application is an Affidavit sworn to by the second appellant containing allegations that the complainant Victoria Obadiya is a woman who habitually drinks and quarrels with people; that before and after the trial of the appellants there have been many complaints against her at the police station and that on the 31st August, 1961 she pleaded guilty to a charge of affray and was sentenced to a fine of £25 or three months imprisonment with hard labour.

The applications were opposed by Mr Awofolaju who appeared for the respondent.

In respect of the first application Counsel for respondent submitted that on the 17th April, 1961 this Court granted leave to file additional grounds of appeal which contained a ground that the sentences passed were excessive and that the present application should have been filed a long time ago. The reason given by Counsel for the appellants as to why the application was not made before was that he thought that the appeal would come before the next session at Ife. The court took note of the fact that the present Counsel for the appellants was the one who obtained leave on the 17th April, 1961 to file the additional grounds of appeal. After hearing submissions of Counsel I refused to grant the leave as I am of the view that that application should have been filed at the earliest opportunity and that it would not be setting a good precedent by entertaining applications of this kind filed very late.

In respect of the application for leave to adduce fresh evidence learned Counsel for the appellant has referred to the following cases:-

(1) R. v. Joseph Greenberg, 17, Crim. App. R. at 107

(2) R. v. James Robinson, 12, Crim. App. R. at 226 and

(3) R. v. Patel, 35, Crim. App. R. at 62.

As the point raised is of some interest I propose to deal with each of the authorities referred to. In the case of Joseph Greenberg the appellant was convicted of the offence of indecent assault on a woman who had been described by the learned trial Judge in his summing-up as a moral woman. The court of Criminal Appeal allowed evidence which was not available at the trial, that the assumption that the prosecutrix was a moral woman was false.

In deciding to allow the fresh evidence to be given, the court of Criminal Appeal stated that the evidence sought to be adduced was of such a nature that the jury would not have convicted if it had been available at the trial. In the case of Robinson the appellant who had appealed against his conviction for murder had alleged in his grounds of appeal that the verdict was against the weight of evidence. The Crown then sought leave to adduce fresh evidence in the form of a letter written by the appellant, after his conviction, to another person, admitting that he did the act. The court allowed that evidence to be adduced. In the case of Patel the appellant was convicted of conspiracy and fraud and it was held that other evidence of fraud committed by him was relevant and admissible against him as it was relevant to the issue before the trial court.

It is clear from the three cases referred to that the evidence sought to be adduced after the trial was in each case relevant to the issue before the court and was not available at the trial. In the present case no suggestion was made to the complainant under cross-examination that she was a person of the character described in the Affidavit sworn to by the second appellant and referred to earlier in this Judgment. I can find no authority to support the application that the Affidavit sworn to can be used as additional evidence or the submission that the conviction of the complainant after the trial can be used as relevant evidence against the complainant. I would also refer to the case of Rex v. Matthew Udo Oton, 12 W.A.C.A. at 212 in which the West African Court of Appeal relying on the authority of R. v. Rowland, 32, Crim. App. R. at 29 stated that it would not hear fresh evidence where to do so would mean a re-hearing.

For the above reasons the application for leave to adduce fresh evidence is also refused.

Learned Counsel for the appellants has argued the original ground of appeal namely-that the decision of the learned trial Magistrate is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence and the additional ground namely, that the sentences imposed are too excessive. It has been submitted that it was the complainant who was the aggressor and who started the fight which resulted in appellants being prosecuted. The evidence adduced by the prosecution was that the complainant was accosted and attacked by the appellants who according to the complainant was accosted and attacked by the appellants who according to the complainant were angry because the complainant had allocated a stall, in which the mother of the first appellant was interested, to another person. There was evidence before the learned trial Magistrate from other witnesses who saw the attack on the complainant. The appellants gave evidence and denied having assaulted the complainant. The third appellant stated in her evidence that while she was walking with the fourth appellant, they met the complainant and other persons with her. The complainant said "This is one of the persons" whereupon the complainant slapped her. She fell into the gutter and the complainant jumped on her. The people who were with the complainant started to beat both the third appellant and the complainant. The third appellant sustained injuries and was bitten by the complainant on the left arm and thigh. The learned trial Magistrate gave careful and adequate consideration to the evidence, accepted the evidence of the prosecution and rejected the defence put up by the appellants. He came to the conclusion in effect, that if the third appellant was bitten by the complainant she did so in self-defence. The court also found as a fact that the assault was premeditated and cleverly and ruthlessly carried out. It is my view that there was ample evidence to support the decision of the learned trial Magistrate. The first ground of appeal argued therefore fails.