Anthony Akadile Vs The State (1971)

LawGlobal-Hub Lead Judgment Report

MADAKIRAN JSC 

The appellant was tried and convicted of the murder of one Osong Abang by Bassey J. in the High Court, Calabar.

The facts relied upon by the prosecution were that the deceased who was a hunter was seen carrying a gun in the morning of the 11th of March, 1969, and walking in the direction of the bush. Shortly afterwards, he was followed by the accused who was also carrying a gun. As the deceased did not return home in the evening, search parties were organised to look for him, and some three days later, his corpse was found in the bush in an advanced stage of decomposition. The accused who was present at the scene then took to his heels. He was pursued and when he was overtaken, he was caught and brought back to the scene where he confessed that he had killed the deceased.

In his statement to the police (exhibit 1) the accused said as follows:

“I saw a big animal standing. I began running with it, after a short time I found it standing again near a tree. Then I fired my gun to it. I was going to see it there, I found a human body lying. I started shouting Wo-Wo-Wo-Wo-to our village saying I have killed a person.”

and at the trial, he testified that:

“I went to where we usually killed apes where I heard some making noise and I pursued them. As I was pursuing them I saw one big one and I shot at it. As I drew nearer I found that it was a person I had shot and I started to cry.”

In a reserved judgement, the learned trial judge adequately considered the defence of accident put forward by the accused, and rejected it as he was satisfied that the accused had deliberately shot the deceased. He therefore convicted the accused as charged and sentenced him to death. This is an appeal against that conviction.

The first point urged on us by learned counsel for the appellant, Mr. Akinrele, was that the learned trial judge erred in law in admitting the depositions of Maria Aria and Abang Ochanyia. These depositions were admitted by the learned trial judge under section 34 of the Evidence Act, and in so doing, he relied solely on the evidence of Francis Tiku (P.W. 3) given on the 14th April, 1970. The relevant portion of his evidence reads as follows:

“I last saw Mary Aria when we were served with subpoena on 2nd March, 1970. I also saw Abang Ochanyia last on the same day. She was ill with boils on several parts of her body. She was unable to walk. Abang Ochanyia was having a pain on the knee, and was unable to walk.”

Commenting on the evidence in his ruling, the learned trial judge said:

“I have sufficient evidence to show that the two persons were ill when they were last seen.” and as stated earlier, he admitted both depositions in evidence.

Mr. Akinrele had argued, and we agree with him, that on the facts of this case, what the learned trial judge had to consider was whether the deponents were incapable of giving evidence at the time it was sought to put in their depositions and not whether they were incapable of giving evidence at a time in the remote past.

We are clearly of the view that the learned trial judge was in error in admitting the depositions as there was no evidence on which he could have come to the conclusions that the deponents were incapable of giving evidence at the time when it was sought to put them in.