Jonathan Ajijola & ANOR v. The State (1976) LLJR-SC

Jonathan Ajijola & ANOR v. The State (1976)

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C. O. MADARIKAN, J.S.C.

The charges preferred against the Appellants in the High Court, Kano, were as follows: –

“CHARGE ONE

That you JONATHAN AJIJOLA on or about the 5th day of August, 1973 at Kano in the Kano State of Nigeria Judicial Division intentionally deceived HADIZA DAUDA to sell to you, N1.40 worth of boiled eggs without intention to pay and thereby committed an offence punishable under section 322 of the Penal Code.

Charge two

That you JONATHAN AJIJOLA on or about the 5th day of August, 1973 at Kano in the Kano State of Nigeria Judicial Division committed rape on HADIZA DAUDA and thereby committed an offence of rape punishable under section 283 of the Penal Code and triable by the High Court.

Charge three

That you ISHAYA MUSA in the month of August, 1973 at Kano in the Kano Judicial Division committed an act of gross indecency upon the person of HADIZA DAUDA without the consent of the said HADIZA DAUDA and thereby committed an offence punishable under section 285 of the Penal Code.

Charge four

That you ISHAYA MUSA in the month of August, 1973 at Kano in the Kano Judicial Division threatened HADIZA DAUDA with death with intent to cause the said HADIZA DAUDA not to do an act to wit to tell someone that she was raped by JONATHAN AJIJOLA or yourself and thereby committed an offence punishable under section 397 of the Penal Code.”

At the trial of the case, five witnesses testified for the Prosecution and each of the Accused gave evidence in his own defence. The 1st Appellant was discharge on the 2nd charge of rape, and convicted on the 1st charge of cheating. The 2nd Appellant was also discharged on the 4th charge of criminal intimidation, and convicted on the 3rd charge of attempted rape.

In the course of the trial the deposition of the complainant (Hadiza Dauda), and that of her father (Hamidu Abdullahi Dauda) were admitted in evidence and marked as Exhibits 5 and 6 respectively. The relevant portion of the record reads as follows: –

“Minjibir (Senior State Counsel):

The father of complainant is in Mecca. Prosecutrix is married in Ilorin, address unknown. Only her father knows where she is. I ask for the depositions of these two witnesses to be tendered, under section 239 C.P.C.

Odina: I oppose application of section 239 C.P.C. I reserved examination of prosecution P.W.1 at P.I. where I represented both accuseds.

Ruling: Counsel for Accused had an opportunity to cross-examine witnesses at the P.I. The two missing witnesses, the father and the Prosecutrix cannot be obtained; as to the prosecutrix her whereabouts are unknown, and cannot be discovered without undue delay. The father is in Mecca obtained without undue delay, originally the Magistrates failure to bind over the witnesses to attend at a certain specified date, despite repeated instructions to do so, has caused this difficulty. I do not feel therefore that the Prosecution is entirely to blame. I bear in mind the case of M.S. Jimeta v. Commissioner of Police (1969) NNLR 29, and Alhaji Baba Doka and others v. The State (1967) All NLR 334, but I think this application in all the circumstances is well within the ambit of section 239 C.P.C. and I grant it. the depositions may be tendered direct from the Bar: Isibor v. The State (1970) 1 All NLR 248.

Minjibir: I tender deposition of the Prosecutrix, P.W. 1 Hadijatu Dauda, and of her father P.W. 5 Hamidu Abdullahi Dauda both at P.I.

Court: Admitted Exh. 5 (Hadijatu) and Exh. 6 (Hamidu).

Exhibit 5 and 6 read to court.”

Before us on appeal, it was contended on behalf of the Appellants that these exhibits were wrongly admitted in evidence.

Now section 239 of the Criminal Procedure code provides as follows:-

“239. (1) 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, expense 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 if the witness is a witness for the Prosecution, the Accused had the right and opportunity to cross-examine the witness.

(2) If a witness is produced and examined in any judicial proceeding under this Criminal Procedure code, his evidence given on oath and duly recorded in writing at any like proceeding previously held against the same Accused in which the questions in issue were substantially the same or in a previous stage of the same judicial proceeding may be read out after his evidence in chief has been given and he may be examined and cross-examined upon it and it may be accepted as evidence by the court.

(3) The court may, when it thinks that a witness has told the truth at a previous stage and is lying before it, ignore the evidence given before it and rely on the evidence given previously.”

Before the evidence given at a preliminary inquiry can be accepted as evidence in any subsequent proceedings under section 239, the circumstances under which its admission is based must be shown to exist, and this can only be done by evidence on oath unless there is statutory provision to the contrary. (See The State v. Odu (1965) 1 All N.L.R. 25 at page 31). In the instance case, there was clearly no evidence on oath to justify the admission of Exhibits 5 and 6 in evidence under section 239. Learned counsel for the Respondent has therefore, rightly in our view, conceded that Exhibits 5 and 6 were wrongly admitted and that their contents ought to be disregarded.

The proposition on which the case for the Prosecution stands is contained in Exhibits 5 and 6.Apart from hearsay evidence which was admitted in the hope that the complainant and her father would in the course of the trial give evidence for the Prosecution, none of the Prosecution witnesses gave any evidence incriminating the 1st Appellant on Count 1. For example, it is clear from the record that Tajudeen Adeleke (P.W.1) was allowed to give evidence about what the complainant had told him on the strength of the undertaking of learned counsel for the prosecution who informed the court that “she (i.e. the complainant) will give evidence ” (page 2 lines 33 and 34). But it transpired that the complainant did not give evidence in the High Court and that her deposition (Exhibit 5) relied upon by the prosecution was wrongly admitted.

The case against the 2nd appellant suffers a similar fate on the ground that Exhibit 5 was wrongly admitted and that at best the evidence of Harna Kofa Wamba (P.W.3) is insufficient to support the conviction on Count 3.

In these circumstances, we think that the learned counsel for the respondent was justified in conceding that the evidence was not sufficient to support the convictions of the appellants.

It was for the foregoing reasons that we allowed the appeals of the appellants on the 6th of May, 1976, set aside their convictions and sentences, and entered a verdict of acquittal and discharge in respect of each appellant.

Other Citation: (1976) LCN/2276(SC)