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REX
V.
DANIEL AJIYOLA AND OTHERS
RE MUSA ANIMASHAUN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
7TH DAY OF JANUARY, 1943
2PLR/1943/44 (WACA)
OTHER CITATION(S)
2PLR/1943/44 (WACA)
(1943) IX WACA P. 22
LEX (1943) – WACA P. 22
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
FRANCIS, J.
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BETWEEN:
REX – Respondent
AND
DANIEL AJIYOLA AND OTHERS RE MUSA ANIMASHAUN – Appellant
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REPRESENTATION
S. A. McKinstry — for Crown
Appellant present
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Trite law that Wife of co-accused not competent witness for prosecution — Proof of nature of marriage – Presumption of Christian marriage where husband and wife both sworn on bible — Legal effect
FAMILY LAW — MARITAL STATUS:- Presumption of Christian marriage — How ascertained — Competency of the spouse of an accused person to give evidence in his criminal trial — Evidence given by spouse against a co-accused person — When would be deemed incompetent
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CASE SUMMARY
One of the witnesses called by the prosecution described herself as the wife of appellant’s co-accused. She was sworn on the Bible. Appellant’s co-accused gave evidence in his own defence but described her as his wife, and was also sworn on the Bible.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
(1) That there was a presumption that the woman witness and co-accused were wife and husband of a Christian marriage, and
(2) That the wife therefore was not competent as a witness other than upon the application of her husband, appellant’s co-accused.
Conviction and sentence quashed.
Case referred to:-
R. v. Mount & anor. (24 Cr. App. R., 135).
MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND FRANCIS, JJ.
There is only one point of substance in this appeal and that is that the conviction of the appellant rested upon the evidence of a woman named Eunice Adeye who is the wife of a co-accused named Daniel Ajiyola. Both the woman and the co-accused in giving evidence were sworn on the Bible. She said “the first accused is my husband”, and he described her as his wife. It must be taken that they are the husband and wife of a Christian marriage and the woman was only a competent witness if called upon the application of the person charged. She was not so called and consequently was not a competent witness. The case of R v. Mount & anor. (24 Cr. App. Rep. p. 135) is an authority deciding that in such circumstances the conviction cannot stand.
The appeal is allowed, the conviction and sentence are quashed and it is directed that in the case of the appellant a judgment and verdict of acquittal be entered. The appellant is discharged.