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REUBEN SCHOFOLUWE
V.
THE KING
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
12TH DAY OF OCTOBER, 1951
2PLR/1951/59 (WACA)
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OTHER CITATION(S)
2PLR/1951/59 (WACA)
(1951) XIII WACA PP. 264-265
LEX (1951) – XIII WACA 264 – 265
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BEFORE THEIR LORDSHIPS:
VERITY, Ag. P.
DE COMARMOND, J.
ROBINSON, J.
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BETWEEN:
REUBEN SCHOFOLUWE – Appellant
AND
THE KING – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR.APP.3535
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REPRESENTATION
A. O. Lapite for Appellant
Adams, Crown Counsel, for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Deposition of witness wrongly admitted in evidence – Requirements of section 34 of the Evidence Ordinance (Cap. 63) not fulfilled – Witness not public officer and evidence on oath to establish foundation for admission of deposition essential – Submission by Crown that under section 225(1) of Evidence Ordinance evidence wrongly admitted could not reasonably be held to have affected the decision not upheld.
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CASE SUMMARY
Section 34 of the Evidence Ordinance provides for the admission of depositions in certain circumstances. Except in the case of a public officer, evidence on oath is required to provide a foundation for admission of such deposition. The witness was not a public officer. Evidence on oath was not adduced and the Crown conceded that deposition was wrongly admitted, but argued that the decision of trial Court should not be reversed, because deposition wrongfully admitted could not reasonably be held to have affected-the result.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. Evidence on oath by some witness who can be cross-examined is essential to establish foundation for admission of deposition.
2. The deposition was wrongly admitted. The deposition was that of a witness who gave material evidence and also produced books of account which, in the absence of the witness, were also wrongly admitted.
3. The decision of the trial Judge was affected by this evidence wrongly admitted, and the conviction could not be upheld. Conviction quashed.
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MAIN JUDGMENT
THE FOLLOWING JUDGMENT WAS DELIVERED:
VERITY, Ag. P.
In this appeal from conviction on four counts in an information for stealing by a servant, there is but one ground of appeal on a question of law, that is to say, that the deposition of witness who gave evidence before the Magistrate but who was not called at the trial was wrongly admitted in evidence thereat.
Section 34 of the Evidence Ordinance Cap. 63 provides for the admission of such depositions in certain circumstances, but it is clear that the particular circumstances upon which the admission of the deposition is based must be shown to exist. This can only be done by evidence upon oath, unless there is special statutory provision to the contrary. By sub-section (3) of section 34, provision is made whereby the facts necessary to provide a foundation for this admission of such evidence may be established in the case of public officers by means other than testimony upon oath.
In the present case the witness concerned was not a public officer, but the method adopted to establish the reason for his absence was the production of a certificate signed by a district manager of the firm by whom he had been employed to the effect that the witness had left the firm’s service and entered upon his retirement in the United Kingdom. Such a certificate by a private individual, whether he be a high official in a commercial firm or an individual employer, is not such evidence as is required to establish a fact required to be proved. It is necessary that evidence be given upon oath by some witness who can testify to the fact of his own knowledge and who may, if necessary, be cross-examined in regard thereto. It is for the trial Judge, then, to determine whether the evidence so tendered is sufficient to satisfy him as to the existence of the material facts and whether upon the facts so proved the deposition is admissible but it is essential that the facts should be proved by legal evidence upon oath.
The certificate in the present case is not such evidence and the learned. Judge erred therefore in admitting this deposition at the trial.
Counsel for the Crown was not prepared to contend that the deposition was legally admissible, but he submitted that having regard to the provisions of section 225(1) of the Evidence Ordinance the decision of the Court below should not be reversed in that the evidence wrongly admitted “cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted “.
Without entering into a detailed examination of all the evidence, it is necessary to bear in mind that the witness whose deposition was wrongly admitted was a district manager of the firm under, whom the appellant was employed, that he it was who conducted certain investigations which led to the discovery of the shortages the basis of the present charges, and who called upon the appellant for an explanation and testified u to certain admissions made by the appellant. It was this witness also who produced before the Magistrate a number of books of account and other documents upon which the prosecution relied.
At the trial, as appears from the record, these documentary exhibits were admitted without further proof than the deposition which was in itself in admissible, and were themselves, therefore, not properly admitted in evidence and must be held, therefore, to be inadmissible also.
There can be no doubt that the decision of the learned Judge was affected by this wrongly admitted evidence. In the course of his judgment he not only makes frequent reference to the documents, but also specifically accepted certain of the evidence on the deposition as corroboration of the testimony of a witness whose evidence he stated he would have hesitated to accept without corroboration.
While it is possible that the decision might, in view of other evidence, have been the same if the inadmissible evidence had not been admitted, it is impossible for us to hold that it would have been the same and, in view of the terms of this judgment quite impossible to say that it cannot reasonably be held to have affected the decision.
We deplore the fact that the proper foundation for the admission of the deposition was not laid, and that the learned Judge did not require that it be laid, for had the deposition been properly admitted there could, in our view, have been no doubt as to the appellant’s guilt. We cannot for this reason, however, uphold a disregard of the rules of evidence which may have resulted in serious prejudice to the accused person and the appeal must, therefore, be allowed.
The conviction is quashed, the sentence is set aside, and a verdict of acquittal is directed to be entered.
Appeal allowed.
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