3PLR – DAJA WAGGA V. THE QUEEN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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DAJA WAGGA

V.

THE QUEEN

 FEDERAL SUPREME COURT OF NIGERIA

FSC.58/1963

10TH JUNE, 1963.

BEFORE THEIR LORDSHIPS:

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

SIR LIONEL BRETT, F.J.

JOHN IDOWU CONRAD TAYLOR, F.J.

REPRESENTATION:

1. A. COLE – for the Appellant.

THOMAS, Senior Crown Counsel – for the Respondent.

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE:- Murder – Proof of – Deposition of medical practitioner – Medical report – Admissibility in evidence – Section 249(1) and (3) of the Criminal Procedure Code – Whether it was competent for the Court to read the deposition of a registered medical practitioner without proving that he had left the country or was not available to give evidence – Effect

CHILDREN AND WOMEN LAW:- Wife-Killing – Women and Customary Law – Return of bride price on leaving husband – Women and Justice administration – Mother of 4 children who had left husband to move in with another man ordered by local court to return to 1^st husband as current lover was unable to pay back bride price – woman’s throat slit on the night of the day she returned home – How treated

MAIN JUDGMENT

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

We now give our reasons for dismissing this appeal on the 24th May, 1963.

The appellant, who was charged with culpable homicide punishable by death under section 221 of the Penal Code, was, on the 12th January, 1963, convicted of that offence. The case against him which the learned Judge accepted was that he cut his wife’s throat when she was trying to run away from his house. Earlier, the deceased, who had four children by the appellant, had left him to live with another man. Since this man was unable to refund the appellant’s dowry, the deceased was ordered by the local court to return to the appellant who took her home. Later that night cries were heard from the direction of the appellant’s house. The appellant was found hiding in the bush about 1^1/2 miles from his house whilst his wife (the deceased) was found dead, her throat cut, and her body lying by the entrance to her house. A knife was lying a few yards from the dead body.

In a statement made to the Police by the appellant, which was properly admitted as evidence, the appellant stated that he killed the deceased because she told him that night that she would run away from his house.

In his evidence before the learned trial Judge the appellant said that after he brought the deceased home from the Court, she ran away that night: he pursued and brought her back. She wanted to run away a second time later that night: he held her, they both struggled, and he tried to throw his knife away which he was afraid she might get hold of. She held him and they both struggled for the knife. During the struggle the knife entered her neck and she sustained a major injury with blood gushing out of her neck.

The learned trial Judge disbelieved the story which the appellant gave on oath, and particularly so on account of the description by the doctor of the wound in the neck of the deceased.

The question of provocation was also considered by the learned Judge and, in our view, rightly dismissed.

Before us, Mr. Cole for the appellant argued that the deposition of the Medical Officer, Francis Walter Gales, who had carried out the post mortem on the deceased and gave evidence at the Preliminary Investigations before the Magistrate and had since left the country, was wrongly admitted by the learned trial Judge in that evidence was not given on oath that the Medical Officer had left the country and would not be returning, although there was a letter to that effect before the learned trial Judge. Counsel also objected to the written report made by the doctor being put in evidence with his deposition.

Counsel’s attention was called to section 249 (1) of the Criminal Procedure Code under which it was competent for the Court to read the deposition of a registered medical practitioner without proving that he had left the country or was not available to give evidence. Also subsection (3) (a) of the same section allows a written report of a registered medical practitioner to be admitted in evidence at the discretion of the Court for the purpose of proving the nature of injuries received by any person who had been examined by him.

There was no other substantial ground argued and we dismissed the appeal.

BRETT, F.J:           I concur

TAYLOR, F.J:       I concur.

Appeal Dismissed.