The Queen V. Enebiene Ijoma (1962)

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ADEMOLA JSC

The appellant was in the High Court of Lagos on 28th day of July, 1961, convicted on an indictment in nine counts of various offences’, that is to say, 5 counts of forgery contra Section 467 of the Criminal Code, 2 counts of uttering contra Section 468 of the Criminal Code, one count of procuring registration by false representation contra Section 26 of the Medical Practitioners and Dentists Ordinance, and one count of possession of poison for illegal purposes contra Section 59 of the Pharmacy Ordinance. He was sentenced to a term of 2 years imprisonment with hard labour. He has appealed against his conviction.

It would appear that in 1959 the appellant took steps to have himself registered according to Law as a Medical Practitioner in Nigeria by producing certificates issued by the Society of Apothecaries in London that he was fully qualified to practise Medicine in England. They purported to have been signed by one Dr. Critchley as Master of the Society and one Ernest Busby as the Registrar. As he was required to produce testimonials that he had had a year’s post call experience before he could be allowed to practise as Medical Practitioner in Nigeria, he also produced two Certificates of which one purported to have been signed by Dr. Salmon, a Consultant Physician to Queen Mary’s Hospital, London.

The case for the Crown was that the Certificate, Exhibit 1, as well as the testimonial, Exhibit 2, which the appellant produced and handed to the Registrar (Medical Registrar) who enrolled him, were forged in that the names on the Certificate, Exhibit 1, were not signed by Dr. Critchley and Mr. Busby respectively, and the name on the testimonial was not signed by Dr. Salmon.

The following grounds of appeal were filed:-

1. The learned trial Judge erred in law in admitting the depositions of Messrs. Busby, Critchley and Salmon in evidence when the prosecution failed to satisfy the requirement of the law to make such documents admissible.

2. The learned trial Judge misdirected himself in the evidence in law by not rejecting and discountenancing the depositions of Messrs Busby, Critchley and Salmon when the whole case of the prosecution in proving the forgery of which the accused was charged was the evidence contained in the aforesaid depositions.

3. (a) The learned trial Judge erred in law in convicting the accused/appellant on counts 3 and 7 of the offence when such counts did not charge the accused/appellant with any offence under law.

(b) The learned trial Judge erred in law in convicting the accused/appellant on counts 1, 2, 5, 6, 8 and 9 when the accused/appellant cannot be convicted under counts 3 and 7.

4. The judgment of the learned trial Judge was unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.

The last ground of appeal filed was not, however, argued.

Mr. Kayode, arguing the fast ground of appeal, attacked the evidence of the 4th witness for the Crown, namely Daniel Adesanya, the Registrar of the High Court who was called to put in evidence the original depositions of three witnesses, namely Emest Busby, MacDonald Critchley and Harold William Salmon on two grounds: the first is that the depositions of these witnesses were not admissible and should not have been admitted as evidence at the trial before the Judge because the men who were called from the United Kingdom to make a deposition before the learned Magistrate during the preliminary investigations should have come to give evidence at the trial in the High Court.

The question is, whether the procedure laid down under Section 34 of the Evidence Act was followed correctly before the depositions of these witnesses were admitted in evidence, and if it was, whether as a matter of discretion the Judge ought to have declined to allow the depositions to be read.

Section 34 of the Evidence Act reads:

(1) 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 expense which, in the circumstances of the case, the Court considers unreasonable: Provided-

(a) that the proceeding was between the same parties or their representatives in interest;

(b) that the adverse party in the fast proceeding had the right and opportunity to cross-examine; and

(c) that the questions in issue were substantially the same in the fast as in the second proceeding.

(2) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

(3) In the case of a person employed in 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 non-attendance 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.

Counsel argued that when the core of the evidence against an accused person is in the deposition of a particular witness, that witness must be called to give evidence and his deposition should not be admitted as evidence. He cited the case R. V Linley, mentioned in Criminal Law Review, 1959, page 123, and the case R. V Collins, 26 Crim. App. R. 117. It is accepted that, prima facie, depositions should not be admitted in evidence and the witnesses themselves should be called at the trial, but Section 34 of the Evidence Act was enacted to admit such depositions in a number of cases, as already enumerated (supra).

The case R. V Collins (supra), cited to us, differs from the present case. In that case where an accused person had indicated his wish that he would be pleading guilty at the trial, the prosecution made no attempt to bring witnesses to Court. When the accused changed his mind, instead of the Judge granting an adjournment for the witnesses, who were available, to be called, he allowed the depositions of all the witnesses to be read and admitted them as evidence upon which he convicted the appellant.

In the instant case, the three witnesses whose depositions were read out were brought from a distant country, at great expense, from the United Kingdom for the preliminary enquiry. Counsel for the accused were warned they would not be available at the subsequent trial and every opportunity was given for them to b

Other Citation: (1962) LCN/1018(SC)