ONYENANKEYA V. THE STATE

• Pages: 117-120

ONYENANKEYA V. THE STATE

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It is clear that these two provisions of the Code relate to trials in the High Court

and the Magistrates Courts and have no reference whatever to Native Courts. So,

they are not applicable in this case. Sec. 391, however, refers specifically to trials

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in the Native Courts. The relevani sub-sections are (1) and (2), and are as follows:-

"391. (1) In taking evidence in any criminal matter a native court may test the

credibility of any wiiness by examination.

(2) Notwithstanding the provisions of this Criminal Procedure Code or of

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any other written law, a native court may in its discretion invite any

witness to take an oath as to the truth of his evidence or any part there-

of either before he gives such evidence or at any subsequent stage

of the proceddings and if such witness refuses to take any such oath

the court may draw such inference from such refusal as it thinks just."

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Counsel for the appellant submitted that the correct interpretation to be applied

to sub-section (2) above is that it is obligatory on the part of the Native Court to

administer the oath to witnesses before it, but that the oath need not necessarily

be administered before or at any subsequent stage of the proceedings.

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We are unable to agree with Mr Cole's view of the interpretation of Sec. 391(2)

of the Criminal Procedure Code. The section in our view, gives a discretion to the

Native Court to invite a witness, "either before he gives his evidence or at any sub-

sequent stage of the proceedings" to take an oath as to the truth of what he was

going to say or what he had said: again a witness may be invited to take an oath

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as to a particular portion of his evidence only. It is not obligatory on the part of

the Court to do so; it is a matter cf discretion for the Court whether or not it will in-

vite the witness to take an oath. 11 must be made clear, however, that the matter is

not left to the whims of the Court, but ft is a discretion to be exercised in appropri-

ate cases.

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This ground of appeal must therefore fail and the appeal before us is hereby

dismissed.

Appeal dismissed.

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ONYENANKEYA V. THE STATE

40 FRANK ONYENANKEYA

V

THE STATE

SUPREME COURT OF NIGERIA

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ADEMOLA,

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C.J.N.

TAYLOR,

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J.S.C.

BAIRAMIAN,

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J.S.C.

9th April, 1964.

APPELLANT

RESPONDENT

SUIT NO. SC 59/1964

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Criminal Law - Homicide - Cause of death, whether act of accused - Onus on

prosecution.