The Queen Vs Adiaha Nwa Ikpe (1960)

LawGlobal-Hub Lead Judgement Report

TAYLOR, F.J

The appellant was convicted of murder contrary to s.319 of the Criminal Code at the trial held in the High Court of the Calabar Judicial Division and from that conviction she has appealed to this Court.

At the hearing of the appeal learned Counsel for the appellant sought and obtained leave to argue three additional grounds of appeal and abandoned the original grounds filed with the notice of appeal. After hearing Counsel for the appellant we did not call on the Counsel for the Crown to reply and dismissed the appeal, intimating that we would give our reasons for so doing later. We now do so.

The evidence for the prosecution put in a nutshell was that the accused, the wife of the 2nd Prosecution witness, was not on a happy terms with the deceased, her mother-in-law, and resented the latter staying with her husband and herself. On the day in question when matters came to a head, she matchted the deceased, who succumbed to the injuries she received.

Mr. Cole for the appellant sought to urge firstly that the learned trial Judge erred in admitting the depositions of the medical expert without a consideration of the factors contained in s.34(1) of the Evidence Ordinance. Particular emphasis was laid on the evidence adduced at the trial to the effect that the medical expert would be back to Nigeria towards the end of July, 1960, and, argued learned Counsel for the appellant, since the trial in the High Court began in June, 1960 it cannot be said that any delay or expense would be involved in awaiting the arrival of such witness. It must however be borne in mind that this is a capital case and one in which the appellant had been in custody since the 13th September 1959. In view of these factors we feel that the learned trial Judge was fully justified in the steps he took and more so when one looks at the vagueness of the evidence before him as to the date of arrival in Nigeria of the witness in question. Such evidence adduced by P.W.1 is as follows:-

“He left Nigeria in February, 1960 …….. He may come back perhaps above the last week in July, I am sure.

This ground of appeal must in our view fail.

On the second ground as amended, learned Counsel argued that the learned trial Judge erred in admitting the depositions of the medical expert, with which I have already dealt, and the depositions of the Police Constable who investigated the case, arrested the accused and took his statement this Constable having died before the hearing began. It was contended by learned Counsel for the appellant that the Registrar who tendered the latter should have given evidence that the signature of the Magistrate on the deposition was familiar to him, which was not done. The 8th prosecution witness was the Registrar of the High Court Sessions to whom these depositions are, in the course of his duties as such, sent from the Court of Committal. He tendered the deposition without objection. While it should be pointed out that it is desirable that such evidence of identification of the deposition should be given, yet in the circumstances of this case we do not feel that any miscarriage of justice was occasioned by its absence. This ground of appeal too must fail.

The last ground of appeal is bound up with the first, for once the deposition of the medical expert is adjudged rightly received in evidence, then the arguments put forward in support of this ground of appeal as to the absence of a postmortem examination and evidence of cause of death, cannot be sustained. We therefore dismissed this appeal

Appeal dismissed.

Other Citation: (1960) LCN/0853(SC)