"Where a witness gives evidence in proceeding whether after Examination-in-Chief or in the course of Cross Examination and died without completing his evidence under any of the two situations, the fact of his death will not render his evidence useless or irrelevant in that proceeding.

The Court depending on the circumstances can still accord the evidence of a deceased witness some weight or value.

See MAFIDOH OKWA vs. IYERE IWEREBOR & ORS (1969) NSCC 73 at 75 per ADEMOLA, CJN of blessed memory who held thus:

"The law as to the position of a witness who died before cross-examination of his evidence in chief appears to be settled. It is clear that it is accepted that such evidence is legal but the weight to be attached to such evidence should depend upon the circumstance of each case. In Rex v. Doolin: Jebb C.C. 123 where a prosecution witness was taken seriously ill whilst under cross-examination, his evidence was taken into consideration, and the conviction based on it was held good. And in Davies v. Otty (1865) 34 LJ. Ch 252 where a witness gave evidence on 28th August and she died two or three days afterwards so that it was not possible to cross-examine her on her evidence, Lord Romily Master of the Rolls said:-

"..but as there was no impropriety and nothing wrong in examining her, and as she was not kept out of the way to prevent cross-examination, I must receive her evidence and treat it exactly as is should the evidence of any other witness who, from any other cause whatever, either had not been or could not have been cross-examined."

All English authorities as well as Indian authorities on this point were referred to in the Indian case Kuer v. Rajab, All I.R (1936) Patna 34.
 

In our judgment therefore, the Learned Judge was in error when he held that it was fatal for the Plaintiff's case that the learned Magistrate relied on the evidence in chief."

I am of the view that the lower court was misled into expunging the evidence of the original DW1 by both the learned counsel to the Respondent and the learned counsel to the Appellants. The court cannot be blamed. The Appellants as well as their respected Learned Counsel are bound by the order expunging the evidence on pages 75-78 of the Record.

The net effect is that it is as if DONATUS I. ONYUKWU now late, never testified in the action. His evidence thus becomes otiose, irrelevant and no longer of any moment in this Appeal.

Per PETER OLABISI IGE, J.C.A in CHRISTIAN ONYENWE V. CHIEF GODWIN ANAEJIONU (CA); (2014) LPELR-22495(CA)