Joseph v. R., Crim. App. 465-D-70, 25/11/70, Onyiuke, J.

 

Joseph v. R., Crim. App. 465-D-70, 25/11/70, Onyiuke, J.

The appellant was convicted of causing grievous harm contrary to section 225 of the Penal Code and sentenced to one year’s imprisonment. The facts are accepted by the learned trial magistrate were that the appellant, on returning home found that his son, Petro, aged between nine and ten years, had cooked and eaten an egg he found in the house. The appellant became angry, tied the child’s hands together, put them in a heap of dried grass, poured paraffin over the grass and set it on fire. The fingers of the child’s right had except the index finger were completely charred and the three fingers on his left hand were equally badly burnt. The evidence of the child was unsworn and unaffirmed and the magistrate recorded that he did not understand the meaning of an oath.

            Held: (1) “It is a condition of the reception for such evidence that the trial magistrate must not only be satisfied that the child understands the duty of speaking the truth but that he must manifestly appear to be so satisfied because section 127 (2) requires him to record such fact in the proceedings. The

position in this case was retrieved by the learned magistrate’s recording the fact in his judgment that ‘on being examined by the court the child proved not to understand the meaning of oath but he understood the duty to speak the truth’. It is my view that such examination and record of the court’s satisfaction of the child’s understanding of the duty to speak the truth should precede the reception of his evidence and should appear as part of the proceedings relating to the child’s evidence.” (2) “In this case, Petro Florian must be regarded as a child of tender years and his evidence being unsworn or unaffirmed requires corroboration as a matter of law. I am of the view that the learned magistrate was right to regard the appellant’s conduct in this case as amply corroborating the child’s testimony.” (3) “The facts of this case show that the sentence imposed by the learned magistrate was manifestly inadequate. That the child was not burnt to death was due to the fortuitous circumstance of a stranger happening to be passing nearby during the child’s ordeal.” (4) Appeal against conviction dismissed. Sentence increased to four years.