Fabina Edmund vs The Republic, Criminal Appeal No 540 of 2019.

This case is about issue of procedures of tendering exbhit and witness statements in crimina case that failure to adhere procedures is fatal and the court ha this to say:

The other complaint relating to Exh. P4 is that it was not properly admitted because the provisions of section 34B (2) (f) requiring the same to be read over and signed by the maker and recorder was not complied with. 

Both learned counsel urged us to expunge it from the record.It is cardinal principle of law that, in order for a statement made by a person who cannot be called or be found to give evidence in court to be admitted in evidence, such statement must meet the requirements set out under section 34B (2) (a) to (f) of the Evidence Act cumulatively. 

Paragraph (f) of section 34B (2) of the Evidence Act provides for the witness statement to be read over to the maker and signed by both the maker and recorder.

In the matter at hand, we agree with both counsel that, indeed, in the impugned Exh. P4, at page 39 to 49 of the record of appeal, the requirement under section 34B (2) (f) of the Evidence Act was not met since it does not feature in the record of appeal if it was read or caused to be read over to the maker and signed by both the maker and recorder as required by the law. 

Pendo Emmanuel did not indicate that it was read over to her. Neither did PW3 explain that it was read over and none of them signed it. As was prayed by both learned counsel, failure to do so rendered it to be invalidly or improperly admitted and it is liable for expungement.

From the foregoing, since the said documents were tendered and admitted in evidence in contravention of the provisions of section 34 B (2) (H) of the Evidence Act and sections 246 (2) and 289 (4) of the CPA, they 

were not properly received as exhibits. We, thus, expunge them from the record of appeal.

Ultimately, in view of what we have discussed above, we agree with the learned counsel that if Exh. P2 and P4 are expunged from the record there remains no other evidence to sustain the conviction. This, therefore, leads us to answer the issue we had raised earlier on, that the prosecution failed to prove the case beyond reasonable doubt.

In the event, we allow the appeal, quash the conviction and set aside the sentence meted out against the appellant.