MIKA V. THE QUEEN

• Pages: 187-190

MIKA V. THE QUEEN

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187

Brett, F.J.

I concur.

Appeal struck out.

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MIKA, V. THE QUEEN

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YERIBA MIKA

V

THE QUEEN

FEDERAL SUPREME COURT

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ADEMOLA,

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C.J.F.

BRETT,

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F.J.

TAYLOR,

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F.J.

19th June, 1963.

APPELLANT

RESPONDENT

SUIT NO. FSC 11

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/

1

963

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Evidence - Evidence Act s.96(1)(c) - confession reduced to writing - Oral evidence

of it - Statement of a suspect in presence of another suspect undesirable.

ISSUE:

1. Whether it is necessary for the exhibits clerk of the trial Court to be called to

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testify of the loss of an accused's written confession before oral evidence of

the confession can be admitted under s.96(1)(c) of the Evidence Act by the

appeal court.

FACTS:

Section 96(1)(c) of the Evidence Act (1958 Laws of Nigeria Cap.62) provides

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that secondary evidence may be givers of the existence, condition and contents of

a document when the original has been destroyed or lost and in the latter case all

possible search has been made for it.

The conviction rested mainly on a statement said to be a confession made by

the defendant to a constable through an interpreter and reduced to writing. It was

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not produced at the trial. It had been tendered before the Magistrate; it was said

that it got lost, but his exhibits clerk was not called to testify that it was lost and that

all possible search had been made for it. Oral evidence was given of what the ap-

pellant had stated; but the testimonies of those who spoke to it varied substantially.

The interpreter interpreted for several suspects, all of whom were together.

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HELD:

1.

The exhibits clerk of the Magistrate's Court ought to have been called to testify

that the writing had got lost and could not be found after all possible search

had been made, before oral evidence of the confession was admitted.

2.

In any event the oral evidence of what the appellant had stated was unreliable.

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PER CURIAM:

It is most undesirable to take the statement of an accused person or suspect in

the presence of other accused persons or suspects.

J.A. Cole

for the Appellant.

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A.R.H. Thomas

for the Respondent.

TAYLOR, F.J.

(Delivering the Judgment of the Court) The appellant was

convicted of causing the death of one Samvo Kolenya with the intention of so doing

contrary to s.220 of the Penal Code of the Northern Region of Nigeria.