IN THE SUPREME COURT O NIGERIA
On Friday, the 15th day of February 1963
MBAM IZIOGO ..................................................... APPELLANT
THE QUEEN ........................................................... RESPONDENT
Appeal by convicted person:
The appellant killed the deceased, and the only point on appeal related to the reception of the doctor's deposition on the strength of a letter signed by the Permanent Secretary of the Ministry of Health, that the doctor was abroad on a training course. For the appellant the objection was that the letter was not signed by the doctor's Head of Department, as required by section 4(3) of the Evidence Act; the respondent relied on section 42 of the Constitution of Eastern Nigeria, which provides that subject to the Minister's direction and control, the Department shall be under the supervision of a Permanent Secretary.
A letter purporting to come from the Permanent Secretary in the usual course of business is a letter to which the Minister has subscribed and which emanates from him.
The Queen v. Ijoma  1 All N.L.R. 402
APPEAL from the High Court of Eastern Nigeria.
A. Obi Okoye for the appellant.
F. O. Offiah, Crown Counsel, for the respondent.
Taylor, F.J.-The deceased made a report to the police about the theft of his goat, and a result he went to the house of the appellant in the company of two police constables where they saw a goat tethered by the barn of the accused. The accused at first denied, when asked, that he was the owner of the goat but subsequently admitted ownership, saying that he had purchased it at the market. The accused was then invited by the Constables to the house of a Councillor, whereupon he uttered these words to the deceased:
"You are the person who called the police to arrest me. We are going to settle it face to face. It is good."
Accused then rushed into his house; came out with a dagger, and stabbed the deceased in the right arm. He then seized the deceased's hatchet and struck the deceased in the neck and other parts of the body. The evidence of prosecution witness 1, the landlord of the accused, reads thus at this point:-
"I did not hear accused say anything to the deceased before he stabbed. After I ran away I came back shortly afterwards to the front of accused's house and saw the deceased Iying on the road, he was already dead."
The evidence of the 4th prosecution witness, one of the police constables who accompanied the deceased to the house of the accused, was also definite on the point that the deceased was dead when they conveyed this corpse to the police post and that before the attack there was no struggle between the deceased and the accused. Further there is the evidence of prosecution witness 5, the brother of the deceased, who identified the body to the doctor, to the effect that the accused rode past him on his cycle saying that he (the accused) had killed his (the witness's) brother.
Mr Obi Okoye, learned Counsel for the accused, did not in arguing the appeal challenge the findings of the learned trial Judge but sought to challenge the verdict on the point that the depositions of the Medical expert were wrongly received in evidence as the conditions laid down for its reception had not been satisfied; that in the absence of the medical evidence there was no evidence as to the cause of death of the deceased.
Section 34(1) of the Evidence Act Cap. 62 states that:-
"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 of 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 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."
Subsection 3 is also relevant for the purposes of this judgment and arguments raised by learned Counsel. It reads thus:-
"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 pre-sentenced 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."
Mr Obi Okoye in addition to the submission contained in an earlier part of this Judgment as having been made by him also submitted that:-
(i) There was nothing in the evidence to show that the proceedings in which the depositions of the medical expert were taken was the same as the preliminary Investigations into the offence for which the accused stood charged.
(ii) That further exhibit C' the letter of notification of the absence of the medical expert from Nigeria did not comply with section 34(3) of the Evidence Ordinance.
The evidence leading to the tendering of the Depositions of the medical expert reads thus:-
"PW2 Dada Joseph sworn
1st Class Clerk, Ministry of Health, Abakaliki. I know Dr Nebuwa Nwozo Acquaye. She was M.O. Abakaliki up till September, 1962. To the best of my knowledge she is now in the United Kingdom on Government Course of Study. From communication we have received from her she is expected by next year.
XXD: Eze: None.
Crown Counsel applies for deposition of Dr Acquaye in the case of the death of Ofoke Oyiba to be tendered."
The Registrar of the court was then called and an endeavour was made to tender the depositions but the trial Judge upheld the objection that sufficient foundation had not then been laid for the admission of the depositions. After other witnesses had been called, Michael Chuka Ejiofor, prosecution witness 9 gave evidence and tendered exhibit `C' without objection being raised. The Registrar of the court was recalled and the depositions of Dr Acquaye was tendered, also without objection. Exhibit 'C' reads as follows:-
High Court Session,
Criminal Charge at Abakaliki
E/64c/62: The Queen v. Mbam Iziogo
I am directed to inform you that Dr (Mrs) N.N. Acquaye, Medical Officer, left Nigeria for the United Kingdom on an in-service training Course by the M.V. "Aureol" which sailed from Lagos (Apapa) on 18th September, 1962.
(Sgd.) S. E. Onwu,
Ministry of Health.
Mr Obi Okoye's main objection is that exhibit 'C' was signed by the Permanent Secretary to the Ministry of Health and that there fore the letter was not one purporting to emanate from the Head of the Department. The argument is wholly met by section 42 of the Constitution of Eastern Nigeria which provides that:-
"Where any Minister of the Government of the Region has been charged with responsibility for any department of government, he shall exercise general direction and control over that department; and, subject to such direction and control, the department shall be under the supervision of a permanent secretary, whose office shall be an office in the public service of the Region"
It seems to us that a letter purporting to come from the Permanent Secretary of a Ministry in the usual course of business is a letter to which the Minister has subscribed and which emanates from him.
As to the other point raised, when one reads the evidence of the Registrar of the sessions before his recall together with his evidence when recalled, as well as exhibit 'D', the deposition of the Medical expert made it abundantly clear that it was the deposition taken.
(1) At the Preliminary Investigation into the murder of Ofoke Onyiba.
(2) That such Preliminary Investigation was held by Magistrate B.C. Nwosu on 29th June, 1962.
(3) That the body was identified by Nwibodo Awoka described in exhibit 'D' as the 2nd prosecution witness and who at the hearing of the case on appeal was also the 2nd prosecution witness.
In passing it should be pointed out that the effect and meaning of this section of the Evidence Act was fully dealt with in the Queen v. Ijoma FSC 309/1961, and it is therefore unnecessary for us to say any more than is contained in this Judgment on the point. For these reasons we dismissed the appeal on the 11th February, 1963.