JOEL OMODARA V. THE STATE
(2008)LCN/2917(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of July, 2008
CA/L/656/2005
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
RAPHAEL CH1KWE AGBO Justice of The Court of Appeal of Nigeria
ADZIRA DANA MSHELIA Justice of The Court of Appeal of Nigeria
Between
JOEL OMODARA Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION MUST BE FORMULATED FROM THE GROUNDS OF 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 v. 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. PER AGBO, J.C.A.
WHETHER OR NOT THE CALLING OF WITNESSES BY THE TRIAL COURT AFTER THE CLOSE OF THE CASE OF BOTH PROSECUTION AND DEFENCE OCCASIONS A MISCARRIAGE OF JUSTICE
The core of this appeal seems to be the purported difference of interpretation in Onuora vs. The State supra and Ayub-Khan v. 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 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.” PER AGBO, J.C.A.
WHETHER OR NOT THE POWER TO EXAMINE OR RE-EXAMINE WITNESSES IS EXERCISEABLE BY THE TRIAL COURT AND NO OTHER PERSON
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 do so must be statutory. See Onuorah v. 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. PER AGBO, J.C.A.
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): 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 Gbana to testify in respect of their findings in this case. To ensure that the right or the accused person to fair healing is not in fringed, 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 III 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.
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 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 or 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-improvisiso i.e. to say a fact arising “out or the blues”, totally unanticipated and unknown to the prosecution. He relied on Twani LTD v. c.t.m.b. (1997) 8 NWLR (Pat 515) 140, R. v. Dora Harris (1928) 20 C.R. APP.R 86 and Sunday Onuora & Anr v. 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 v. 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 v. 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 v. 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 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 identities S.200 of the Criminal Procedure Law Caps 31 Laws of Eastern Nigeria as the applicable law. The said S.200 is in pari material 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 CPL – 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 pruprio motu or suo mutu 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) en. APP. R. 86.
The point being made here is that when the prosecution has been closed the prosecution stand or fall by the evidence it 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 – Ayub- Khan VS. The State supra. The respondent has argued that Ayub-Khan v. 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 ex-improviso 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 or 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) xxx
(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 ex improviso 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 do so must be statutory. See Onuorah v. 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.
CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the judgment just delivered by my brother Agbo JCA. I agree with the conclusion arrived thereat, that the appeal has merit and should be allowed in terms and orders made therein, the lead judgment. For purpose of exposition and further comment, I would however wish to state that the situation at hand to me, appears to be one-sided and not balanced. This does not accord fairness to the case in issue. It is trite law, I must say, that the justice of any case operates in a tripod manner to all parties inclusive of the court.
In other words, the provision of section 200 of the Criminal Procedure Law Lagos State under reference, in my humble opinion, does not appear to be a good law. This provision has been reproduced in the lead judgment.
This is because, by its very nature while it gives the court such wide powers “to call or recall a witness at any stage of any trial inquiry or proceedings”; it does not however give any room to either the prosecution or the accused to respond on the exercise of such powers. It is also of trite nature that, for a court to arrive at a just decision of a case especially in a criminal matter, the necessity of evidence is of great significance.
More so and to further buttress the unfortunate nature of the cast: is, especially where the prosecution included in its initial list of witnesses those it now seeks to testify, and who not mere additional witnesses are therefore. The intervening circumstances giving rise to their inability are well spelt out on the record and which resulted in the application.
Any law that operates so watertight and restrictive against the freedom of a party in conducting his case is, in my humble opinion, contrary to rules of natural justice equity and good conscience and ought to be repealed or amended.
Section 200 Civil Procedure Law is in primateria to section 237 of the Criminal Procedure Code (CPC) operative in the Northern States. Comparatively and in particular by subsection 237(2) same is very much unlike the earlier provision wherein the latter is liberal by taking into further consideration both the prosecutor and the accused alongside the court.
The Criminal Procedure Code therefore takes into account all the salient features that protect and preserve the rights of an accused person. In other words, while the provision of section 200 of the Criminal Procedure Law does not take into consideration the possible eventual subjective intent of a judge and the consequences thereof, remotely it might be, section 237(2) operates to curtail such subjection by the very fact of the participative opportunity open to both the prosecution and the accused. This certainly is healthy for the nature of our adversarial system of justice as well as the contention of the Constitution, wherein an accused is presumed innocent until proved otherwise by the prosecution. The parameters of section 200 Civil Procedure Act need to be broken open and to extend beyond its restrictive cocoon. Law is dynamic and the dynamism which ought to reflect in the practical operational application appropriate and befitting the contemporary society. For now and until the horizon of such dynamism is put in place, the present must however, continue until such change is brought to bear.
This court like all other courts operate only within statutory provisions. In the absence of such power vested in the court I will also have no hesitation in overturning the error of interpretation by the lower court given to section 200 the Criminal Procedure Code.
On the totality of this appeal, therefore, I agree without more with my brother Agbo JCA that same is meritorious and further align with the orders made therein the lead judgment.
ADZIRA GANA MSHELIA, J.C.A.: I read in advance the draft of the lead judgment of my learned brother Agbo, JCA just delivered. I entirely agree with the reasoning and conclusion contained therein. I have nothing to add but to adopt same as mine. I too allow the appeal and abide by the consequential order made in the lead judgment.
Appearances
A, AWOLMOLO (MRS) with her A. ESAN and O. OJOFor Appellant
AND
Respondent absent but served.For Respondent
