Patrick Osoba Vs The Queen (1961)

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BRETT, FJ

The applicant was tried and convicted in the High Court of Lagos on charges under Sections 390 and 435 of the Criminal Code. He appealed against his conviction and applied unsuccessfully for leave to adduce additional evidence in this court. The judgment of this court dismissing his appeal was delivered on the 9th January, 1961, and on the 12th April, 1961 he filed notice of the motion which we are now considering.

In it he asks the court to order a retrial on the grounds set out in his affidavit, which amount in effect to this, that at his trial his defence was never properly put to the High Court. He does not, for the purpose of this application, allege any misconduct on the part of the counsel who appeared for him in the High Court and on the hearing of his appeal in this court, but he says that his counsel was aware of and failed to adduce certain documentary evidence which tended strongly to show his innocence, and that this failure has led to a substantial miscarriage of justice which this court can and should put right.

The application appears to be without precedent, and as far as authority goes Mr. Khambatta has confined himself to three reported decisions of the English courts, none of which affords a parallel. In Flower v. Lloyd (1877) 7 Ch. D. 297, the members of the Court of Appeal expressed the view that if a procedure had not already existed by which a judgment of the Court of Appeal obtained by fraud could be set aside the court would have had power itself to set the judgment aside on a motion by the aggrieved party. In R. v. Haddy (1944) 1 KB 442 the Court of Criminal Appeal considered what amounted to a substantial miscarriage of justice. In R. v. Ball (1911) AC 72 the Court of Criminal Appeal held that it was empowered to set aside its own order so as to make an order in conformity with the decision of the House of Lords given on a further appeal.

We do not consider that the motion can be entertained. The power of this court to order a re-trial in a criminal case is derived from Section 26(2) of the Federal Supreme Court Ordinance, 1960 and can only be exercised where the court has allowed an appeal and set aside a conviction, but in this case the court has already heard and determined the applicant’s appeal and is now functus Officio. Mr. Khambatta has suggested that as a result of Section 110 of the Constitution of the Federation the court has an inherent power to prevent a miscarriage of justice by making whatever order justice may require even at this stage, but the court is not entrusted by the Constitution with any general supervisory functions, and in the exercise of its appellate jurisdiction it is bound by the ordinary restrictions on the setting aside of a judgment once pronounced and perfected. We will decide what powers the court possesses in relation to a judgment obtained by fraud, such as was said to have occurred in Flower v. Lloyd, when the case arises. This is not such a case, and no circumstances are alleged which would justify the court either in treating its previous decision as a nullity or in assuming power to set it aside.

The application is dismissed on these grounds and we reserve to some other occasion the question whether an error of judgment on the part of defending counsel can ever be a reason for quashing a conviction.

(Sgd.) L. Brett,

Federal Justice.

Other Citation: (1961) LCN/0947(SC)