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F.S.C. 413/1962

15TH FEBRUARY, 1963.

3PLR/1963/18  (FSC)



SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided and Read the Judgment of the Court)




CHILDREN AND WOMEN LAW:- Child-Killing – Murder – Three children killed by own father and mother wounded – Whether claim that wife told him the children were not his is sufficient provocation – How treated

CRIMINAL LAW AND PROCEDURE: – Murder – Proof thereof – Admission of depositions of two witnesses without following procedure – Whether conviction sustainable on other evidence recorded in notes of trial judge – How treated by appellate court

CRIMINAL LAW AND PROCEDURE: – Deposition of witness – Admis­sion under Section 34(1) Evidence Act – Proper way of doing same – Duty of Court

PRACTICE AND PROCEDURE – EVIDENCE: – Admissibility – Deposition of witness – S.34 (1) Evidence Act – Duty of trial court to adhere thereto – When failure to adhere to same is deemed not to have occasioned miscarriage of justice



  1. A. COLE – for the Appellant.
  2. OMO EBOH, Asst. D.P.P. (West) – for the Respondent.




ADEMOLA, C.J.F. (Delivering the Judgment of the Court):

We now give our reasons for dismissing this appeal on 1st February, 1963.

The facts which led to the conviction of the appellant are at no time in dispute. He himself confessed that he killed his three children (he was charged in respect of the death of one of them known as Alice) because his wife told him that he was not the father of any of them. He also killed one Agbarhrai whom he found in his wife’s house and wounded the wife, who luckily escaped being killed. There was really no defence to the charge of murder nor in fact was any defence known to law put forward.

The only point taken on appeal before us by Counsel for the appellant was that before the learned Judge admitted in evidence depositions of wit­nesses at the Preliminary Investigation who were not present at the trial, he did not take formal evidence why the witnesses were not called. It is worth recording the notes of the learned Judge. They read as follows:

”Ogwuazor applies for leave to tender the depositions of the 1st and 2nd deponents, Ejesemeuhia Okifo and America Mohumiakpo, who cannot be found in spite of several efforts made by Police.

Application granted.”

We cannot but express our concern at the perfunctory method adopted in this case by the learned Judge and we are constrained to draw attention to the provisions of Section 34 of the Evidence Ordinance which deals with the admission of the evidence of a witness in previous proceedings at a sub­sequent trial in his absence and the circumstances surrounding his absence at the trial. Section 34(1) reads:­

“34(1). Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the ad­verse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable: . . . . . . . . . . . “

In the appeal of The Queen v. Enebiwe Ijoma, [1962] 2 S. C. N. L. R.157 decided by this Court on 7th July, 1962, we laid down the procedure to be followed strictly under Section 34 of the Evidence Ordinance before the de­positions of witnesses are admitted in evidence. We draw attention to our judgment in that appeal, and we only have to add that it is the duty of the Judge to hear evidence why the witness was absent at the trial and what ef­forts have been made to secure his attendance. It is only after hearing such evidence that the Judge can exercise his discretion whether or not he would decline or allow the deposition of the witness to be read and admitted as evi­dence.

It is obvious that in the present appeal the learned trial Judge did not hear such evidence before admitting the depositions of the two witnesses. It therefore became necessary for us, in the circumstances, to examine the whole case before the learned Judge and to satisfy ourselves whether if the depositions of these two witnesses were excluded, there was enough evi­dence on which the appellant could rightly be convicted of the offence charged.

We were satisfied after reading the record that there was ample evi­dence, independent of the depositions of the two witnesses upon which the learned Judge could have convicted. In the circumstances, we dismissed the appeal.


TAYLOR, F.J.: I concur.


BAIRAMIAN, F.J.: I concur.


Appeal Dismissed.


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