ANTHONY AKADILE (APPELLANT)
THE STATE (RESPONDENT)
(1971) All N.L.R. 19
Division: Federal Supreme Court
Date of Judgment: 22nd January, 1971
Case Number: SUIT NO. S.C. 197/1970.
Before: Coker, Madarikan, Sowemimo, JJ.S.C.
Appeal from the High Court (South-East).
(1) On the facts of this case, what the trial Judge had to consider was whether the deponents were incapable of giving evidence at the time it was sought to put in their depositions and not whether they were incapable of giving evidence at a time in the remote past. The trial Judge was in error in admitting the depositions as there was no evidence on which he could have come to the conclusion that the deponents were incapable of giving evidence at the time it was sought to put them in.
(2) But having regard to the provisions of section 226(1) of the Evidence Act, the Supreme Court was unable to find any justification for interfering with the judgment of the lower court on the ground of wrongful admission of evidence as the evidence by the depositions thus wrongly admitted could not reasonably have affected the decision and that the decision would have been the same if the depositions have not been admitted.
(3) Having regard to the views expressed by the trial Judge in his judgment, it must be regarded as untenable the argument of Counsel that the exhumation order was made because the trial Judge was in doubt as to the guilt of the accused.
Law referred to:
Evidence Act s. 54; 226(1).
APPEAL from the High Court (South-East).
SUIT NO. S.C. 197/1970.
Akinrele for the Appellant.
Madarikan, J.S.C. (delivering the judgment of the court):-The appellant was tried and convicted of the murder of one Osong Abang by Bassey J. in the High Court, Calabar.
The facts relied upon by the prosecution were that the deceased who was a hunter was seen carrying a gun in the morning of the 11th of March, 1969, and walking in the direction of the bush. Shortly afterwards, he was followed by the accused who was also carrying a gun. As the deceased did not return home in the evening, search parties were organised to look for him, and some three days later, his corpse was found in the bush in an advanced stage of decomposition. The accused who was present at the scene then took to his heels. He was pursued and when he was overtaken, he was caught and brought back to the scene where he confessed that he had killed the deceased.
In his statement to the police (exhibit 1) the accused said as follows:
"I saw a big animal standing. I began running with it, after a short time I found it standing again near a tree. Then I fired my gun to it. I was going to see it there, I found a human body lying. I started shouting Wo-Wo-Wo-Wo to our village saying I have killed a person."
and at the trial, he testified that:
"I went to where we usually killed apes where I heard some making noise and I pursued them. As I was pursuing them I saw one big one and I shot at it. As I drew nearer I found that it was a person I had shot and I started to cry."
In a reserved judgment, the learned trial Judge adequately considered the defence of accident put forward by the accused, and rejected it as he was satisfied that the accused had deliberately shot the deceased. He therefore convicted the accused as charged and sentenced him to death. This is an appeal against that conviction.
The first point urged on us by learned Counsel for the appellant, Mr Akinrele, was that the learned trial Judge erred in law in admitting the depositions of Maria Aria and Abang Ochanyia. These depositions were admitted by the learned trial Judge under section 34 of the Evidence Act, and in so doing, he relied solely on the evidence of Francis Tiku (P.W. 3) given on the 14th April, 1970. The relevant portion of his evidence reads as follows:
"I last saw Mary Aria when we were served with subpoenae on 2nd March, 1970. I also saw Abang Ochanyia last on the same day. She was ill with boils on several parts of her body. She was unable to walk. Abang Ochanyia was having a pain on the knee, and was unable to walk."
Commenting on the evidence in his ruling, the learned trial Judge said:
"I have sufficient evidence to show that the two persons were ill when they were last seen."
and as stated earlier, he admitted both depositions in evidence.
Mr Akinrele had argued, and we agree with him, that on the facts of this case, what the learned trial Judge had to consider was whether the deponents were incapable of giving evidence at the time it was sought to put in their depositions and not whether they were incapable of giving evidence at a time in the remote past.
We are clearly of the view that the learned trial Judge was in error in admitting the depositions as there was no evidence on which he could have come to the conclusions that the deponents were incapable of giving evidence at the time when it was sought to put them in.
But having regard to the provisions of section 226(1) of the Evidence Act, we are unable to find any justification for interfering with the judgment of the lower court on the ground of wrongful admission of evidence as we are satisfied that the evidence by the depositions thus wrongly admitted could not reasonably have affected the decision and that the decision would have been the same if the depositions had not been admitted.
After abandoning the 2nd ground of appeal, Mr Akinrele proceeded to argue the 3rd ground of appeal which reads as follows:
"That the learned trial Judge failed to resolve all reasonable doubts in favour of the accused and thereby came to a wrong conclusion on the proof of the charge against the accused."
In his testimony at the trial, the accused stated that when the corpse of the deceased was recovered from the bush, he chewed a portion of the hand of the deceased because P.W. 2 had compelled him to do so, and that the remaining portion of it was buried with the corpse. Both P.W. 1 and P.W. 2 had earlier on at the trial denied these allegations under cross-examination. On the 16th April, 1970, commenting on the evidence in this respect, the learned trial Judge said:
"Court: I cannot conclude this case properly without a post mortem examination. I will therefore order exhumation of the body of the deceased. The doctor is to examine particularly whether any part of the body of the deceased was severed from the parent body.
This last sentence to be communicated to the doctor."
Thereafter, the case was adjourned from time to time to enable the exhumation order to be served on the doctor, and as there was no proof of service, the learned trial Judge stated as follows on the 29th May, 1970:
"Court: The order for exhumation was made on 16th April, 1970 and there have been several adjournments, but the doctor has not appeared, for reasons which cannot be attributable to neglect on his part. There is no evidence that the order has been served on him. In the circumstances I do not think any useful purpose will be served in delaying this case any further."
and adjourned the case for judgment after hearing the addresses of Counsel.
It was Mr Akinrele's contention that on the 16th April, 1970, when the learned trial Judge indicated that he could not conclude the case properly without a post-mortem examination, he must have entertained some doubt as to the guilt of the accused. Counsel then argued that the doubt could not have been resolved as a post-mortem examination was never in fact carried out.
We think that a complete answer to the points raised by Mr Akinrele is to be found in the judgment of the learned trial Judge in which he explained why he made the exhumation order. He stated as follows in the judgment:
"At one stage, I ordered the body of the deceased to be exhumed and examination conducted, particularly as to whether the hand of the deceased was severed, in order to throw light on accused's assertion that the hand was severed and he was forced to chew it.
Accused never put forward such an important allegation in his statement to the police, exhibit 1. However, the fact that I asked it to be clarified or that further evidence should be led on the point is indicative that I had some doubt on that point. If I am in doubt, the doubt is to be resolved in favour of the accused. But the question is: doubt as to whose statement? The answer, I think, is doubt as to the allegation accused was making.
One can argue that if I resolve the doubt in accused's favour, it is equivalent to my not believing the prosecution witnesses on their denial that they did not give deceased's hand to accused to eat.
Even if I am to accept that accused was given deceased's hand to eat which I very much doubt, that was done after accused had killed deceased. Did that influence accused to confess to the killing of the deceased: was that duress? Accused said he was told if he did not eat the hand, he would be shot. This is different from saying if you do not confess that you killed the deceased, you will be shot."
Having regard to the views expressed by the learned trial Judge in the portion of his judgment quoted above, we regard as untenable the argument of Counsel that the exhumation order was made because the learned trial Judge was in doubt as to the guilt of the accused. The 3rd-round of appeal must therefore fail.
In the result, this appeal fails on both grounds and it is hereby dismissed. The conviction of and sentence passed on the appellant are affirmed.