Lucie-Smith ,C.J. The four appellants herein were convicted of the murder of one Ekpo Ntuon. The accused were tried jointly and one of the Crown witnesses, Adiaha Atat, who was sworn on the Bible stated, “First accused is my husband”. The first accused himself was also sworn on the Bible.
Sections 160 and 161 of the Evidence Ordinance deal with the competency and compellability of husband and wife.
There have been cases before this Court where it has been laid down that, where a husband or wife of an accused person is called by the Crown and is sworn on the Koran or the Bible, a presumption arises that such husband or wife was the husband or wife of a Mohammedan or Christian marriage respectively (Rex v. Momodu Laoye (1) and Rex v. Ajiyola of. Ors. (2)). In the first case the appeal was allowed on the ground of failure of identification of the body examined by a medical witness.
In the judgment of the Court we find the following passage:- “Another minor point is that the wife of the second accused was called as a witness for the prosecution without it being definitely given in evidence that she was not the wife of a monogamous marriage. It is true that she was sworn on the Koran and was therefore presumably a Mohammedan; but a point of this importance should not be left to presumption.”
In the second case the material part of the judgment reads as follows:- 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 Rex v. Mount and . Another, 24 C.A.R., p. 135, is an authority deciding that in such circumstances the conviction cannot stand.” In that case we would stress the fact that the conviction of the appellant “rested” upon the evidence of the woman.
A more recent decision of this Court is that in the case of R. v. Ajibola Afonja (3). There it is laid down that it is necessary that the prosecution should show that the marriage is monogamous and that this cannot be presumed. The present case is-clearly distinguishable from that of Rex v. Ajiyola (2) and is more on all fours with that of R. v. Ajibola Afonja (3).
We hold that, in the circumstances, the evidence of Adiaha Atat was inadmissible against any of the accused who were tried jointly. It does not appear, however, that the testimony which she gave was such as to have led to any miscarriage of justice and, expunging her evidence entirely, there was ample evidence upon which the learned trial Judge could have reached the conclusion that the appellants did the act in respect of which they were charged with murder.
The appeals are dismissed.
Appeals dismissed.