Evidence 1

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(1) ABSENT WITNESS

1. Depositions in previous proceedings.

The next attack upon the judgment was that the deposition of Dr. J.S. Kholi which

was tendered in evidence by J. Ubboe was wrongly admitted in evidence because it

did not comply with the provisions of S. 34 of the Evidence Act (Cap. 62) and that the

learned Justices of the Court of Appeal erred in failing to declare it inadmissible.

Counsel submitted that compliance with the provisions of the relevant law made it

incumbent upon the registrar of the Court who was called to produce the deposition

as evidence at the trial to read out the charge, as laid against the accused before the

examining magistrate, before the trial Judge to enable him to see whether this charge

was substantially the same as the count in the information. Indeed, a look at the

deposition shows that no reference was made therein to the charge in respect of

which the deposition was taken, nor is the suit number of the charge before the

examining magistrate mentioned therein.

In the case of R. v. Ijoma, to which our attention was called by learned

counsel for the appellant, the Federal Supreme Court held per curiam in a judgment

delivered on July 7th, 1962 by Ademola, C.J.F., as follows: - [1962] 1 All N.L.R. at

403-404): - “(1) When the Registrar of a Court is called upon to produce a Prelimi-

nary Enquiry deposition in evidence at a trial, he should be asked to read out the

charges which were taken before the Examining Magistrate, so that the trial Judge

may see whether those charges were substantially the same as the counts in the

Information. If the Judge admits the deposition, the Registrar should read it out, and,

where necessary, it should be interpreted to the accused. (2) The Registrar should

attach to a deposition he is putting in evidence a certified copy of the caption to the

Magistrate’s proceedings; showing the name of the Court, the parties to the proceed-

ings, and the charges. In that way, the Federal Supreme Court will have a copy of

the initial charges when the case comes up on appeal.”

In view of the above, I hold that there is substance in the learned counsel’s

submission on this ground and that the deposition of Dr. Kholi was not properly ad-

mitted in evidence because of the Registrar’s failure to comply with the procedure as

stated above, which had deprived the trial Judge as well as the justices of this Court

of the chance of having a copy of the initial charge, the deposition in respect of which

was taken by the examining magistrate.” - Per Eboh, J.C.A. in Utie v. State (1980)

(2) N.C.R. 69 at 75 - 76.

2. In admitting depositions of previous proceedings, in another proceeding

issues must substantially be the same in both proceedings as provided un-

der S. 34 (1) Evidence Act (Cap. 62).

“As regards the deposition of Dr. Kholi, the statutory condition precedent to its ad-

missibility under S.34 (1) of the Evidence Act was not satisfied since the charge in

the case in which the doctor gave the evidence was not tendered in evidence in this

EVIDENCE 1

Absent witness Paras. 1 ,2

Paras. 2-4 Vol. 10 Pt. I: EVIDENCE 1 2

case. This being so, it cannot be said that the questions in issue were substantially the

same in this case as in the previous proceedings where Dr. Kholi testified. For this

reason his deposition, too, was clearly inadmissible: see R. v. Ijoma (1962) 1 All

N.L.R. 402.” - Per Agbaje, J.C.A. in Utie v. State (1980) (2) N.C.R. 69 at 84.

(2) ACCOMPLICE

3. Accomplice’s evidence and risk involved in accepting it.

“For there are two risks which have to be considered: the first is that a corrupt person

may invent an offence and accuse someone of committing it, the second is that he

may be falsely accusing someone of an offence, that was committed. In the majority

of cases, the first risk of an imagined offence is easily overcome. In a charge of

murder for example, the body of the deceased bears marks of violence, which pre-

supposes or confirms the story that he was unlawfully killed. Or in a charge of bur-

glary and stealing, evidence that the door was tampered with and evidence by the

owner of the house that goods were taken away both confirm the story that the

offence of burglary had been committed. In effect this is the proof that an offence

has been committed. It is the second risk, however, that is commonly in the forefront

of the trial, and usually the emphasis in the cases is on the second risk. In R. v.

Baskerville (supra) at page 667, the Court said: – “Corroborative evidence is evi-

dence which shows or tends to show that the story of the accomplice that the ac-

cused committed the crime is true, not merely that the crime has been committed, but

that it was committed by the accused. The words “not merely that the crime has

been committed” are important because they remind us that corroborative evidence

ought also to extend to the story that there was a crime committed, which fact elimi-

nates the first risk aforementioned, namely that the crime alleged may be mere in-

vention; but it may well be that the same piece of evidence covers the two points -

that an offence was committed and that it was the accused who committed it.” - Per

Ademola, C.J.N. in Bello v. The State Suit No. S.C. 282/66; (1966) 4 N.S.C.C. 268

at 273.

4. Accomplice.

(1) “Who then is an accomplice? The Supreme Court in the case of R. Ezechi v. The

Queen (1962) 1 All N.L.R. 113 defines the term as including (I) Participes Crimi-

nis, i.e. participants in the actual crime charged including accessories before and

after the fact; (2) receivers of the property which the accused is charged with steal-

ing and (3) participants in other crimes alleged to have been committed by the ac-

cused where evidence of such other crimes is admissible to prove system or intent or

to negative accident. This is in line with English Authorities. Lord Simonds, L.C.

dealing with the question of accomplice in the case of Davies v. D.P.P. (1954) A.C.

378 said at 399: - “The remaining questions therefore are (b) and (c) who is an

‘accomplice’ within the rule? And has the rule, on the proper construction of the

3 Accomplice Para. 4

word ‘accomplice’ contained in it any application to Lawson in the present case?

There is in the authorities no formal definition of the term accomplice, and Your

Lordships are faced to deduce the meaning of the word from the cases in which X, Y

and Z have been held to be or held liable to be treated as accomplices. On the cases,

it would appear that the following persons, if called as witnesses for prosecution,

have been treated as falling within the category: - (1). On any view, persons who are

participes criminis in respect of the actual crime charged whether as principals or

accessories before or after the fact (in felonies) or persons committing, procuring or

aiding and abetting (in the case of misdemeanours). This is surely the natural and

primary meaning of the term ‘accomplice’.

But in two cases persons falling strictly outside the ambit of this category

have, in particular decisions, been held to be accomplices for the purpose of the rule;

viz: 2. Receivers have been held to be accomplices to thieves from whom they re-

ceived goods on a trial of the latter for larceny (Rex. v. Jennings (1912) Cr. App. R.

242; Rex v. Dixon (1925) 19 Cr. App. R. 36). 3. When X has been charged with a

specific offence on the particular occasion, and evidence is admissible, and has been

admitted, of his having committed crimes of this identical type on other occasions, as

proving system and intent and negativing accident, in such cases, the Courts have

held that in relation to such other similar offences, if evidence of them were given by

parties to them, the evidence of such other parties should not be left to the jury

without a warning that it is dangerous to accept it without corroboration (Rex v.

Farid (1945) 30 Cr. App. R. 168)…… The primary meaning of the term accomplice

then has been extended to embrace these two anomalous cases. In each case, there

are special circumstances to justify and at least excuse the extension. A receiver is

not only committing a crime intimately allied in character with that of theft; he could

not commit the crime of receiving at all without the crime or theft having preceded it.

The two crimes are in relationship of one-sided dependence. In the case of ‘system’

the requirement of warning within the special field of similar crimes committed is a

logical application within that collateral field of the general principle, though it in-

volves a warning as to the evidence of persons not accomplices to the substantive

crime charged.” - Per Obaseki, Ag. J.S.C. in Wanchi v. State (1976) 9-10 S.C. 107

at 115.

(2) “Learned counsel for appellants urged that the fifth and seventh prosecution

witnesses were accomplices whose evidence required corroboration; and he submit-

ted that the learned trial Judge erred in not adverting to this issue. We are unable to

accept the contention of learned counsel. Persons are accomplices who are participes

criminis in respect of the actual crime charged whether as principals or accessories

before or after the fact in the case of felonies or misdemeanours.” 10 Halsbury’s

Laws of England 549, Art. 844; 3rd ed.” - Per Onyeama, J.S.C. in Idahosa & Ors.

v. Queen Suit No. S.C. 188/64; (1965) N.M.L.R. 85 at 87.