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F.S.C. 244/1963








SIR VAHE BAIRAMIAN, J.S.C. (Read the Judgment of the Court)



CRIMINAL LAW AND PROCEDURE – Evidence relied on wrongly admitted – Other available evidence sustaining conviction – Effect.

CRIMINAL LAW AND PROCEDURE – Evidence wrongly admitted at trial -Remaining evidence leaving no doubt – Effect.

PRACTICE AND PROCEDURE – EVIDENCE – Admissibility of doctor’s deposition – S.34(3) Evidence Act – Breach of – Effect.

PRACTICE AND PROCEDURE – EVIDENCE – Wrongful admission – Reliance thereon – Other available evidence sustaining conviction – Effect.



J.A. Cole -for the Appellant.

J.I. Emembolu, Senior State Counsel -for the Respondent.


BAIRAMIAN, J.S.C. (Delivering the Judgment of the Court): The appellant was tried with another man in the High Court of Eastern Nigeria on a count of murdering one Ndarake Essien Akpan on 2nd June, 1962, at Mot Obong Itu in the Calabar Division. The case was heard at Uyo by Balonwu, J., who acquitted the other man and convicted the appellant on 12th June, 1963.


About 7 p.m. on the day in question the deceased was riding a bicycle carrying one Ndarake Jackson (p.w. 3); and Asibong Akpan (p.w. 2) was following behind. They rode past two other cyclists, namely James Ekop Udofia and Accused No. 2 (the man who was acquitted). These two caught up and rode past them, and James collided with the deceased, whose bicycle got bent, and who asked James to stand the cost of repairing it. Angry words were exchanged, and James carrying up the deceased knocked him down and pressed him down. The deceased fell head downwards. Accused No. 2 ran into a house near by, whilst Jackson (p.w. 3) was trying to separate James and the deceased. Accused No. 2 returned with a matchet, followed by the appellant, who was holding a big stick. Jackson pleaded with them not to join James in the fight, but the appellant struck the deceased on the head, whereupon he cried out in pain that he had been killed. Neighbours came. The deceased was covered with blood. James helped in taking him to hospital, where he died. P. W. 5 identified the body to the doctor who made the post-mortem.


The appellant’s defence was that he saw James holding the deceased on the ground and, in order to part them, he hit James on the hand, and the deceased he knew not where; later he discovered that the deceased was injured and bleeding and begged his pardon because he did not know the stick would injure him. As for the stick, he had thrown it away.


Balonwu J. accepted the version of p.w.2 and p.w.3 that, in the course of the fight between James and the deceased, the appellant struck the deceased a blow on the head with a big stick, and that the blow caused profuse bleeding. The learned Judge also referred to the medical evidence that the post-mortem showed internal damage to the brain and brought about the death of the deceased.

The learned Judge deals with the defence suggestion that the death of the deceased might have been caused by James when he threw the deceased headlong to the ground: the judgment states that –


“The evidence of Asibong (PW 2) and Jackson (PW 3) shows quite clearly that it was only after the first accused had delivered the blow on the head of the deceased that the latter cried out aloud in great pain and distress. What is more, it was after this blow, and not before, that the deceased began to bleed. I had, therefore, no difficulty in rejecting the suggestion.”


The learned Judge formed the view that the appellant wilfully struck the blow, either to cause death or grievous harm, and convicted him of murder. The first ground of appeal complains that the doctor’s deposition was wrongly received in evidence. Counsel for the Crown told the trial Court that the doctor was on leave, and that he was cross-examined before the Magistrate; Counsel for the defence said he did not object to the deposition being put in; and the trial Court received it in evidence. Mr. Cole has argued for the appellant that section 34 of the Evidence Ordinance was not complied with: either someone ought to have testified on oath that the doctor was on leave abroad, or Counsel for the Crown should have produced a Gazette or telegram or letter from the doctor’s head of department stating that he was abroad on leave and was not expected back until such and such a date.


Section 34 provides for the reception of a deposition in evidence in cer­tain circumstances, which should be borne in mind. There are a number of decisions, which can now be easily traced through paragraph 853 of Brett and Mclean’s Criminal Law and Procedure of Lagos etc. Here, for the purposes of the argument, it is enough to quote subsection (3) of s. 34; it reads:­”(3) In the case of a person employed m the public service who is required to give evidence for any purpose connected with a judicial proceeding, it shall be sufficient to account for his non­attendance at the hearing of the said judicial proceedings if there is produced to the court, either a Gazette, or a telegram or letter purporting to emanate from the head of his department, sufficiently explaining to the satisfaction of the court his apparent default.”


It was a mistake to receive the doctor’s deposition in evidence merely on the statement of counsel for the Crown that he was on leave. It must be discarded, and the question arises whether, without it, the trial Judge would inevitably have come to the same conclusion.


The second ground of appeal is bound up with that question; it is that the Judge – “erred by failing to consider evidence that the deceased could have died as a result of the act of James Ekop Udofia who knocked the head of the deceased on the ground”.


As already stated, the Judge considered the suggestion of the defence that it might have been so, and rejected it. It has been argued before us that in the dark one could not have known whether the deceased’s head had not been grievously and mortally injured when he was tossed on to the tarred road. There are two items of evidence which make it certain that his head was not so injured then: one is that James was pressing him down on the ground; the other is that when the appellant struck him, he cried out in pain that he had been killed. There is no suggestion that, when the deceased was thrown down by James, he uttered any cry; and the fact that James was pressing him down goes to show that he still had the energy to struggle. It was when the appellant struck him on the head that he uttered that cry that he had been killed, which brought people to the scene. In his evidence in chief the appellant said it was a bamboo stick from which the hard part had been removed; when asked why he threw it away, he said he did not know the police would come. He knew he had done the damage, and when the deceased was raised up and he saw blood on his head, he says he begged pardon because he did not know the stick would injure him.


The evidence leaves no doubt that the mortal injury was caused by the blow on the head with the big stick given by the appellant. That is the conclusion that we feel sure the Court below would have come to without the doctor’s deposition, so there is no reason to disturb its judgment.


The appeal is dismissed.


BRETT, J.S.C.:       I concur.


TAYLOR, J.S.C.:   I concur.


Appeal Dismissed.


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