Civil Procedure - review under Order XLIV rule 1 of the Civil Procedure Rules - appeal against an order of the High Court dismissing an application for review - application having been brought twenty years after the judgment and order sought to be reviewed were made - an applicant has to show that there has been discovery of new and important matter or evidence which after due diligence,was not within his knowledge or could not be produced at that time or he must show that there is some mistake or error apparent on the face of the record or that there was any other sufficient reason. And most importantly,the applicant must make the application for review without unreasonable delay - whether the appellants could invoke the review procedure when they had previously filed a notice and record of appeal (though it was later struck out by consent).

Appeal-criminal appeal-robbery with violence-evidence-whether evidence of recognition is held to be more firm and reliable than identification of a mere stranger-Criminal Procedure Code (cap.75), Section 296(2)

Criminal law - defence of provocation - section 208 of the Penal Code - meaning of provocation - An unlawful killing in circumstances which would constitute murder would be reduced to manslaughter,but only if the act which causes death is done in the heat of passion caused by sudden provocation - whether the defence of provocation was available to the appellant - It is a question of fact whether the accused in all the circumstances of the particular case,was acting in the heat of passion caused by grave and sudden provocation when the killing was done - accused person aged 13 years - The standard used in section 208 of the Penal Code is that of “ an ordinary person” - whether a 7 year-old (as the victim in this case was) is capable of provocation - Section 14(1) and (2) of the Penal Code

Criminal law - charge of murder reduced to manslaughter contrary to Section 202 as read with Section 205 of the Penal Code - one year old child defiled to death - accused person convicted on his own plea of guilty and sentenced to 15 years imprisonment - appeal against sentence on the ground that the appellant that is a young unmarried man; has young brothers and sisters depending on him; and had stayed in custody for a lengthy period before his trial appellant aged 17 at the time of the commission of the offence - whether the appellant should have been sentenced to a term of imprisonment for the offence - Children and Young Persons Act (repealed)- the inclusion of the sentence for the offence of defilement which was not part of the offence charged was clearly erroneous. The act of defilement was the cause of death and is subsumed in the substantive charge for manslaughter - In all the circumstances of the case,a sentence of 15 years imprisonment is neither harsh nor excessive - appeal dismissed.

Criminal law - robbery contrary to Section 296(1) of the Penal Code - accused person tried and convicted and sentenced to 5 years imprisonment,six strokes of corporal punishment and hard labour - conviction and sentence enhanced to death for robbery with violence under section 296(2) on first appeal - second appeal - state not supporting the conviction because the main witnesses had contradicted themselves and there was no positive identification - the first appellate court failed to reconsider the evidence,to evaluate it and draw its own conclusions in deciding whether the judgment of the trial court should be upheld - conviction unsafe - appeal allowed.

Criminal law - charge of robbery with violence contrary to section 296(2) of the Penal Code - that there is no law to the effect that in every case the arresting officer must come and testify. Such cases are confined to their peculiar facts and circumstances - at least one of the arresting officers ought to have been called to testify - the failure to call all or any of the three police officers who arrested the appellant some two months after the offence left an unbridgeable gap in the prosecution’s case and the appellant must have the benefit of that gap - conviction was unsafe and ought not to be allowed to stand.

Criminal law - charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code - two accused persons tried,convicted and sentenced to five years imprisonment - second appeal - failure by the prosecution to call certain witnesses - where a party fails to produce certain evidence,a presumption arises that the evidence,if produced,would be unfavourable to that party; this presumption is not confined to oral testimony but can also apply to evidence of tape recording which is withheld - allegation that the superior court denied the appellants their constitutional right to be represented by an advocate of their choice - no merit in the issues raised by the appellants - appeals dismissed.

[RULING] Civil procedure - Application for stay of execution pending the hearing and determination of the lodged and filed appeal - applicant having failed to comply with a condition imposed by the High Court upon granting a stay of execution - decree having already been executed - motion dismissed.

[RULING] Civil Procedure - application for stay of execution in an intended appeal from the judgment and decree of the High Court brought under rule 5(2) (b) of the Court of Appeal Rules - in the circumstances of this case it would be proper to order for the status quo to be maintained until the appeal is heard and determined.

Criminal law - robbery with violence contrary to section 296(2) of the Penal Code - accused convicted on two counts and sentenced to death - first appeal to the High Court dismissed - second appeal - doctrine of recent possession - courts relying on the evidence of recent possession of stolen goods - Since those goods were not included in the charge sheet as having been stolen from the first complainant,their recovery is immaterial and the first appellant cannot legally have been in possession of recently stolen goods - the two courts below erred in law in relying on the evidence of recent possession of stolen goods and in drawing an inference on such evidence. That evidence should have been discounted - lapses in the execution of parade forms were minor and did not affect the quality of the evidence of the identification of the appellants at the identification parades. The lapses were irregularities curable under Section 382 of the Criminal Procedure Code - Before the court can rely solely on the evidence of identification to implicate an accused person,such evidence must be absolutely watertight to justify a conviction.