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.

Appeal dismissed.