(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: -  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
Absent witness Paras. 1 ,2