UMOREN V. THE QUEEN

• Pages: 293-295

UMOREN V. THE QUEEN

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293

UMOREN V. THE QUEEN

5

ESSIEN OKON UMOREN

V

10 THE QUEEN

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

TAYLOR,

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J.S.C.

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BAIRAMIAN,

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J.S.C.

6th December, 1963

APPELLANT

RESPONDENT

SUIT NO. FSC 244/1963

Legislation - Evidence Act, Section 34(3).

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Criminal Appeals - Evidence wrongly admitted at trial - Remaining evidence

leaving no doubt.

Criminal Law - Deposition of absent witness - Medical Officer abroad -

Requirements.

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ISSUE:

1. Whether the wrongful admission of a doctor's deposition due to

non-compliance with Section 34(3) of the Evidence Act would justify the setting

aside of a conviction where the other evidence on its own would justify

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conviction.

FACTS:

Briefly, Section 34(3) of the Evidence Act provides that the absence of a pub-

lic servant required to give evidence in a judicial proceeding is sufficiently ac-

counted for by the production of a Gazette, or a telegram or letter purporting to

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emanate from his head of department sufficiently explaining his absence to the

court's satisfaction.

In the trial of the appellant for murder Counsel for the Crown told the trial Judge

that the doctor was on leave, and that he was cross-examined before the Magis-

trate; counsel for the accused person said he did not object to the deposition being

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put in; and it was received in evidence. The other evidence left no doubt that the

mortal injury was caused by a blow on the head given by the accused person.

HELD:

Pursuant to Section 34(3) of the Evidence Act counsel for the Crown should at

least have produced a Gazette, or a telegram or letter from the doctor's head of

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department about the doctor's being abroad on leave; the doctor's deposition was

wrongly admitted; but as on the other evidence the trial court would certainly have

found the appellant guilty, the appeal would be dismissed.

F.A.

Cole, for the Appellant.

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F.I. Emembolu, Senior State Counsel,

for the Respondent.

BAIRAMIAN, J.S.C.

(Delivering the Judgment of the Court) The appellant was

tried with another man in the High Court of Eastern Nigeria on a count of murdering

one Ndarake Essien Akpan on 2nd June, 1962, at Ikot Obong Itu in the Calabar