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REX
V.
MUSA DAMAGUDU JAMES DAMAGUDU
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS
10TH DAY OF AUGUST, 1938
2PLR/1938/54 (WACA)
OTHER CITATION(S)
2PLR/1938/54 (WACA)
(1938) IV WACA P. 116
LEX (1938) – IV WACA P. 116
BEFORE THEIR LORDSHIPS
DONALD KINGDON, C.J., NIGERIA
CAREY, J.
GRAHAM PAUL, J.
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BETWEEN:
REX — Respondent
AND
MUSA DAMAGUDU JAMES DAMAGUDU — Appellants
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ORIGINATING COURT(S)
APPEAL FROM CONVICTION BY HIGH COURT.
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REPRESENTATION
C. N. S. Pollard — for Crown
Appellants in person
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Murder, contrary to section 319 of Criminal Code — Weight of evidence — Identification by an unsworn witness — When would invalidate a conviction
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Visit to locus in quo — Material/relevant action by a witness before being sworn — Pointing out a location — Propriety of — Whether amounts to substantial miscarriage of justice
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. The Court was not correct in allowing, at the view of the locus in quo, a witness to point to a particular site before he had given evidence in Court. The persons who pointed things out should have been sworn as witnesses before being allowed to do so. That could have been done on the spot, if necessary. However, no substantial miscarriage of justice occurred on account of this incorrect procedure.
2. The finding was not against the weight of evidence.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, CAREY AND GRAHAM PAUL, JJ.
In this case the trial Judge certified it as a fit case for appeal on the following grounds:
1. Whether the Court was correct in allowing, at the view of the locus in quo, a witness to point to a particular site before he had given evidence in Court.
2. Whether the finding was against the weight of evidence.
As to the first, we are of opinion that the procedure was not correct and that the persons who pointed things out should have been sworn as witnesses before being allowed to do so. That could have been done on the spot, if necessary. We are however of opinion that no substantial miscarriage of justice occurred on account of this incorrect procedure, and consequently do not allow the appeal on that ground.
As to the second, we are of opinion that the finding was not against the weight of evidence.
The appeals of both appellants are dismissed.