Amachigh Korgba V The State (1968)
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The appellant was convicted in the High Court of Northern Nigeria by Hague J. sitting at Makurdi on a charge of committing mischief by fire, contrary to section 336 of the Penal Code. The property damaged was a shed belonging to Ignatius Ikoli Ugwu, in which beniseed and other goods were stored. The prosecution called three witnesses. Bayongo Ayagwa, a buyer employed by Ugwu, testified that the appellant and Ugwu had had a quarrel over beniseed in the course of which the appellant uttered threats to Ugwu, and that during the same night he had woken to find the shed on fire, and had seen and chased someone who was running away and whom he recognised by the light of the moon as being the appellant.
A police officer gave evidence of the arrest of the appellant and produced a statement made by the appellant: it does not advance the prosecution’s case. Finally the clerk of court produced the depositions made by Ignatius Ugwu and Matthew Nwachukwu, who had given evidence at the preliminary investigation but were not called at the trial. The appellant gave evidence denying the charge and called five witnesses to support an alibi and disprove the story of a quarrel. In his judgment the judge referred to the evidence of Bayongo Ayagwa as corroborating in all material particulars that of Ugwu and he made it clear that he based his decision on the deposition of Ugwu as well as on the oral evidence of Bayongo Ayagwa. What is in issue in this case is not the weight to be attached to evidence given by deposition, but whether the necessary foundation had been laid for receiving the deposition in evidence.
The record reads:-
The depositions of the remaining two (Ibo) witnesses are sought to be tendered (section 239(1) Criminal Procedure Code) on the ground of delay expense and inconvenience because of the present state of war between the Federation and Eastern Nigeria.
Accused – I oppose the application. I want them to be here.
By the Court:-
In the present circumstances it is apparent that undue delay and inconvenience will result H the State’s request is not granted.
Ruling – Leave to tender the depositions of the missing witnesses given.”
Section 239(1) of the Criminal Procedure Code provides that:-
“The evidence of a witness given on oath and duly recorded in writing in any judicial proceeding under this Criminal Procedure Code may in the discretion of the court be read and accepted as evidence in any subsequent proceedings concerning the same cause or matter against the same accused or in a later stage of the same proceedings, If the witness is dead or cannot be found or is incapable of giving evidence or if his presence cannot be obtained without an amount of delay, expenses or inconvenience which the court considers unreasonable in the circumstances of the case, provided that the questions in Issue are substantially the same on each occasion and that ff the witness is a witness for the prosecution, the accused had the right and opportunity to cross-examine the witness.”
In Shofoluwe v. The King (1951) 13 W.A.C.A 264 the court had to consider whether a deposition had been rightly admitted under section 34(1) of the Evidence Ordinance (now the Evidence Law in Northern Nigeria) which reads:-
“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 expenses which, in the circumstances of the case, the court considers unreasonable:
(a) that the proceeding was between the same parties or their representatives In Interest;
(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) that the questions in issue were substantially the same in the first as in the second proceeding.”
The court said:-
“Section 34 of the Evidence Ordinance cap. 63 provides for the admission of such depositions in certain circumstances, but it is clear that the particular circumstances upon which the admission of the deposition is based must be shown to exist. This can only be done by evidence upon oath, unless there is special statutory provision to the contrary. It is necessary that evidence be given upon oath by some witness who can testify to the fact of his own knowledge and who may, if necessary, be cross-examined in regard thereto It is for the trial judge then, to determine whether the evidence so tendered is sufficient to satisfy him as to the existence of the material facts and whether upon the facts so proved the deposition is admissible but it is essential that the facts should be proved by legal evidence upon oath.”
Mallam Belgore agreed that although the wording of section 239(1) of the Criminal Procedure Code is not identical with that of section 34(1) of the Evidence Law the difference are not suchas to make the decision in Shololuwe distinguishable, and that the depositions in this case ought not to have been received in evidence without evidence on oath to justify it.
This is not a case in which we could say, in the words of section 226(1) of the Evidence Law that the evidence wrongfully admitted cannot reasonably be held to have affected the decision, and the conviction and sentence are set aside, but the case comes within the rule of practice stated in R. v. Abodundu (1959) 4 F.S.C. 70, and it is ordered that the appellant be retried on the first count of the charge by another judge of the High Court.
The appellant will remain in custody pending the retrial unless admitted to bail by a Judge of the High Court.
Other Citation: (1968) LCN/1611(SC)