KORGBA V. THE STATE

• Pages: 72-74

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NIGERIAN SUPREME COURT CASES

[1968] N.S.C.C.

KORGBA V. THE STATE

5

AMACHIGH KORGBA

V

THE STATE

APPELLANT

RESPONDENT

SUIT NO. SC 332/1967

10

SUPREME COURT, NIGERIA

BRETT,

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J.S.C.

COKER,

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J.S.C.

MADARIKAN,

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J.S.C.

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15

28th March, 1968.

Criminal Law - Mischief by fire - Whether depositions may be received without

evidence on oath - Criminal Procedure Code N.N. s.239(1) - Section 34 of

the Evidence Law, N.N.

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ISSUE:

1. Whether depositions may be received in evidence under the S.239(1) of

Criminal Procedure Code, N.N. without evidence on oath by the witness

producing them justifying the absence of the makers of the depositions.

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FACTS:

The appellant was convicted in the High Court of Northern Nigeria on a charge

of committing mischief by fire contrary to s. 336 of the Penal Code. The damaged

property was a shed in which goods were stored, belonging to one U. At the trial,

the court clerk produced the depositions made by U. and one M.N. who had both

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given evidence at the preliminary investigation but were not called at the trial. One

B.A. also testified for the prosecution that he had seen the appellant running away

from the burning shed. The accused person had opposed the application to ten-

der the depositions on the grounds that he wanted the makers in court but the

learned trial Judge gave weight to the reasons proffered by the State Counsel that

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the two witnesses being Ibo there would be a lot of expense and delay in produc-

ing them because of the on going civil war and he gave leave that the depositions

be tendered under section 239(1) of the Criminal Procedure Code. The Judge in

his judgment made it clear that he based his decision on U.'s deposition and on

the oral evidence of B.A. The issue on appeal to the Supreme Court was whether

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the necessary foundation had been laid for receiving the deposition in evidence.

HELD:

1.

Although the wording of s.239(1) of the Criminal Procedure Code is not identical

with that of s.34(1) of the Evidence Law, the differences are not such as to make

the decision in

Shofoluwe

distinguishable, and that the depositions in this case

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ought not to have been received in evidence without evidence on oath to justify

2.

This was not a case in which the Supreme Court could say, in the words of

s.226(1) of the Evidence Law, that the evidence wrongfully admitted could not

reasonably be held to have affected the decision, and so the conviction and

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sentence must be set aside; but the case came within the rule of practice stated

in

R. v. Abodundu

(1959) 4 F.S.C. 70, and it was ordered that the appellant be

retried on the first count of the charge by another Judge of the High Court.