(1963) All N.L.R. 210


Division: Federal Supreme Court

Date of Judgment: 10th June, 1963

Case Number: (FSC 58/1963)

Before: Ademola, C.F.J. ; Brett and Taylor, F.J.J.

Appeal against conviction:

In Northern Nigeria a medical officer's or registered medical practitioner's deposition on oath at the preliminary investigation made in the presence of the defendant may be put in as evidence at the trial under section 249(1) of the Criminal Procedure Code, without proving that he had left the country or was not available to give evidence; and under subsection (3) the court has a discretion to admit in evidence written report by such officer or practitioner of the injuries or physical cause of death of a person he examined.

Appeal dismissed.1

APPEAL, from the High Court of Northern Nigeria.

J.A. Cole for the Appellant

Thomas, Senior Crown Counsel, for the Respondent.

Ademola, C.J.F. (giving the reasons for the judgment of the court):-We now give our reasons for dismissing this appeal on the 24th May, 1963.

The appellant, who was charged with culpable homicide punishable by death under section 221 of the Penal Code, was, on the 12th January, 1963, convicted of that offence. The case against him which the learned Judge accepted was that he cut his wife's throat when she was trying to run away from his house. Earlier, the deceased, who had four children by the appellant, had left him to live with another man. Since this man was unable to refund the appellant's dowry, the deceased was ordered by the local court to return to the appellant who took her home. Later that night cries were heard from the direction of the appellant's house. The appellant was found hiding in the bush about one mile from his house whilst his wife (the deceased) was found dead, her throat cut, and her body lying by the entrance to her house. A knife was lying a few yards from the dead body.

In a statement made to the police by the appellant, which was properly admitted as evidence, the appellant stated that he killed the deceased because she told him that night that she would run away from his house.

In his evidence before the learned trial Judge the appellant said that after he brought the deceased home from the court, she ran away that night: he pursued and brought her back. She wanted to run away a second time later that night: he held her, they both struggled, and he tried to throw his knife away which he was afraid she might get hold of. She held him and they both struggled for the knife. During the struggle the knife entered her neck and she sustained a major injury with blood gushing out of her neck.

The learned trial Judge disbelieved the story which the appellant gave on oath, and particularly so on account of the description by the doctor of the wound in the neck of the deceased.

The question of provocation was also considered by the learned Judge and, in our view, rightly dismissed.

Before us, Mr Cole for the appellant argued that the deposition of the Medical Officer, Francis Walter Gales, who had carried out the post mortem on the deceased and gave evidence at the Preliminary Investigations before the magistrate and had since left the country, was wrongly admitted by the learned trial Judge in that evidence was not given on oath that the Medical Officer had left the country and would not be returning, although there was a letter to that effect before the learned trial Judge. Counsel also objected to the written report made by the doctor being put in evidence with his deposition.

Counsel's attention was called to section 249(1) of the Criminal Procedure Code under which it was competent for the court to read the deposition of a registered medical practitioner without proving that he had left the country or was not available to give evidence. Also subsection (3)(a) of the same section allows a written report of a registered medical practitioner to be admitted in evidence at the discretion of the court for the purpose of proving the nature of injuries received by any person who had been examined by him.

There was no other substantial ground argued and we dismissed the appeal.