The appellant is facing a charge of murder contrary to the provisions
of S.319(1) of the Criminal Code CAP 32 Laws of Lagos State 1994 at the
Lagos State High Court. Information was filed in the High Court in 2001
and plea was taken before the present trial judge on 19th September 2002.
On 8th February 2005, unable to accept the tardiness of the prosecution, the
trial court compulsorily closed the case for the prosecution. The defence
commenced its case thereafter and closed its case on 18th March 2005.
Parties thereafter addressed the court and judgment fixed for 30th September
2005. On 21st June 2005 the prosecution filed an application at the trial
court brought pursuant to S.200 of the Criminal Procedure Law of Lagos
State seeking the leave of that court to call two witnesses listed in the proof
of evidence before the final judgment. Affidavits were exchanged by the
parties and the application rigorously argued. In a considered ruling the
lower court held thus:-
“Accordingly, the court in the interest of justice hereby
grants leave to the prosecution to call the 2 witnesses, Professor
Elesha and DSP Obono to testify in respect of their findings in this
case. To ensure that the right of the accused person to fair hearing is
not infringed, the accused shall have the right to cross-examine the
said witnesses or adduce evidence in rebuttal of the additional
evidence.”
The appellant, not satisfied with this ruling, filed this interlocutory
appeal. The 5 grounds of appeal are set out hereunder:
“1. The learned trial judge erred in law in granting the application
of the prosecution dated the 21st day of June, 2005 for leave to
call two witnesses after the case had been slated for judgment.
2. The learned trial judge erred in law in granting the prosecution
leave to call witnesses by placing reliance on Section 200 of the
Criminal Procedure Act.
3. The lower court erred in law in granting the application of the
prosecution to call more witnesses,
WHEN,
i) The same court had earlier closed the case of prosecution
when the prosecution was unable to procure its witnesses.
ii) There was no appeal against the ruling of the lower court
closing the case of the prosecution.
iii) The prosecution had inter alia sworn to affidavit evidence that
all the witnesses were ready prior to the closing of its case.
3
iv) The learned trial judge by its decision went into the arena of
conflict on the basis of Section 200 of the Criminal Procedure
Act.
4. The learned trial judge erred in law when she held that calling
fresh witnesses will not be tantamount to taking the defence
unawares.
5. The lower court erred in granting the application of the
prosecution under Section 200 of the Criminal Procedure Act.
From these grounds of appeal, except ground 5, the appellant distilled two
issues for determination to wit:-
“i. Whether it was proper for the learned trial judge to grant
the application of the respondent to call other witnesses
after the appellant gave his evidence, was cross-examined,
addresses delivered and the case slated for judgment.
ii. Whether the learned trial judge was right to invoke the
provisions of Section 200 of the Criminal Procedure Act in
granting the respondent’s application having regard to the
circumstances of this case.”
The respondent from these same grounds of appeal distilled only one ground
of appeal to wit:-
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN
GRANTING THE RESPONDENT’S APPLICATION FOR
LEAVE TO CALL 2 WITNESSES LISTED IN THE PROOFS
OF EVIDENCE BEFORE THE DATE FIXED FOR
JUDGMENT.”
The issue as encapsulated by the respondent is the most apposite and its on
that basis that I shall determine this appeal.
The appeal revolves around the interpretation to be given to S. 200 of
the Criminal Procedure Law CAP C 18 Laws of Lagos State 2003. I
reproduce hereunder the said provision:
“200 Power to call or recall witnesses
The court at any stage of any trial, inquiry or other proceedings
under this Law may call any person as a witness or recall and reexamine
any such person if his evidence appears to the court to be
essential to the just decision of the case.”
The argument of the appellant is that the prosecution i.e. the respondent did
not meet the basic requirements of the law to entitle them to the discretion
exercised in their favour by the trial court. He argued that the exercise of the
powers of the court under S.200 Criminal Procedure Law avails the
prosecution only when the evidence sought to be led arises from facts
introduced in evidence by the defence which facts arose ex – improviso i.e.
to say a fact arising “out of the blues”, totally unanticipated and unknown to
the prosecution. He relied on Tiwani Ltd vs. C.T.M.B. (1997) 8 NWLR
(pat 515) 140, R. vs. Dora Harris (1928) 20 C.R. APP.R 86 and Sunday
Onuora & Anr vs. The State (1989) 2 NWLR (pt 101) 23.
The respondent argued that the basic principle that determines
whether or not a court exercises it powers under S.200 of the Criminal
Procedure Law is whether or not justice demands that the witness be called.
He relied on Ayub-Khan vs. The State (1991) 2 NWLR (pt.172) 127. This
is the interpretation on which the trial court based its ruling the subject
matter of this appeal.
Before going into the argument proper, I want first of all state that I
completely agree with the respondent where he argued that the appellant did
not formulate any issue in respect of ground 5 of the grounds of appeal and
that the ground is deemed abandoned and ought to be struck out. That is the
true position of the law – See Ojo vs. Kamalu (2005) 18 NWLR (pt 958)
523. The appellant specifically tied his two issues for determination to
grounds 1,2,3 and 4. I must note however that ground 5 is a replication of
ground 2. Having abandoned ground 5, it is hereby struck out.
The core of this appeal seems to be the purported difference of
interpretation in Onuora vs. The State supra and Ayub-Khan vs The State
supra. In Onuora vs. The State issue no. 1 for determination was
“Whether the calling of witnesses by the trial court after
the close of the case of both the prosecution and defence, when
there was nothing arising ex-improviso in the case presented
by the defence, was proper and did not occasion a miscarriage of
justice.”
The Supreme Court as per Oputa JSC provided the answer thus:-
“Under the Adversary System which operate in Nigeria,
parties alone take issues with one another. The court
as the judex cannot and does not. The need to call witnesses
arises from the onus on a party to establish its own side of any
given issue. Since the court does not take issues with either
party, the court has no business calling witnesses except as,
and where so provided by any written law.
Is there any such law in criminal cases?
The answer appears to be yes.”
He then identifies S.200 of the Criminal Procedure Law Caps 31 Laws of
Eastern Nigeria as the applicable law. The said S.200 is in pari materia
with S.200 of the Criminal Procedure Law Laws of Lagos State 2003, the
contentious provision in this appeal. Oputa JSC proceeded further
“This Section 200 CP.L – has been the subject of many judicial
decisions explaining the need for this judicial interference and also
setting them as follows:
After the close of the case for the defence, the trial judge can call a
witness proprio motu or suo motu if, and only if, the defence has set
up a case ex improviso, which no human ingenuity can foresee. But
even here it should be made quite clear that the evidence is not such as
is only calculated to do an injustice to the accused but one essential to
a just decision of the case: R. vs. Dora Harris (1927) CR. APP. R.
86.
The point being made here is that when the prosecution has been
closed the prosecution stand or fall by the evidence its has adduced.”
The respondent has argued strenuously that this case is inapplicable to the
decision being appealed against. I fail to see how counsel came to that
conclusion. Respondent’s application at the court below was brought
pursuant to S.200 of the Criminal Procedure Law of Lagos State. The trial
court clearly acted pursuant to S.200 of the Criminal Procedure Law of
Lagos State. However both the respondent and the court below anchor the
decision of the lower court on a later decision of the Supreme Court – Ayub7
Khan vs. The State supra. The respondent has argued that Ayub-Khan vs
The State interpreted S. 237(1)(a) of the Criminal Procedure Code
applicable in Bauchi State which provision is in pari materia with the
provision of S. 200 of the Criminal Procedure Law of Lagos State. In the
said case, the Supreme Court expressly held that the importation of the eximproviso
qualification of the common law into the interpretation of a clear
statutory provision cannot be sustained. But that is not the end of the matter.
The same court held in construing the said section as per Karibi Whyte JSC
at page 144 said thus – “It seems to me that the words of Section 200 of
the CPA are limited and circumscribed by the exercise by the court
alone of the power to examine and re examine the witnesses so
summoned. It does not appear to provide for the cross examination of
such witnesses by the prosecutor or the accused. In this respect Section
237 is wider and more comprehensive. The latter provides for all the
parties in the case.”
The court came to this conclusion after construing the whole of S.237 of the
Criminal Procedure Code as opposed to limiting itself to S.237(1)(a).The
said construed provisions are set out hereunder:
“237(1) Any court may at any stage of any inquiry, trial or other
judicial proceeding under this Criminal Procedure Code
summon any person as a witness or call as a witness any
person in attendance though not summoned as a witness,
and shall summon or call any such person –
(a) if his evidence appears to the court to be essential to the
just decision of the case; or
(b) x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
(not relevant)
(2) The court may examine or allow the prosecutor or
complainant or the accused, as the case may require, to
examine any person summoned or called under paragraph
(b) of subsection (1).”
(3) Any person summoned or called as a witness under the
provisions of this section may –
(a) if examined by the prosecutor or complainant be
cross-examined by the accused and then reexamined
by the prosecutor or complainant;
(b) if examined by the accused be cross-examined by
the prosecutor or complainant and then be reexamined
by the accused.
(4) Notwithstanding anything contained in section 222 of the
Evidence Law, any person summoned or called as a
witness under the provisions of this section who is
examined by the court may be cross-examined by the
prosecutor or complainant and by the accused.
(5) The powers conferred by this section may be exercised
whether or not the person to be summoned or called and
examined has already been examined as a witness in the
proceeding.”
The effect of the above interpretation of S.200 of the Criminal Procedure
Law is that the Supreme Court in the latter decision removed the eximproviso
condition on the facts to be considered by the trial court as a
condition for the invocation of S.200.
In the instant case, the trial court, purporting to act pursuant to the
provisions of S.200 of the Criminal Procedure Law, gave leave to the
prosecution to call further witnesses. The section gave no such authority to
the trial court. The power to examine or re examine witnesses under the said
provision is exercisable by the trial court and no other person. The power to
call or recall a witness by the prosecution after the accused has closed his
case cannot be vested on the prosecution by the court in the exercise of its
discretion. The power to so vest must be statutory. See Onuorah vs. The
State supra. The court also has no power as the trial court did to give the
appellant the right to cross-examine the witnesses as it did in the order. I
therefore have no difficulty in agreeing with the appellant that the trial court
was wrong to have granted the respondent’s application pursuant to S.200 of
the Criminal Procedure Law. This appeal is allowed. The case is remitted
back to the trial court to proceed to judgment on the evidence already placed
before it.