SGT. ALFRED KAJAWA v. THE STATE(2018)

SGT. ALFRED KAJAWA v. THE STATE

(2018) LCN/4602(SC)

In The Supreme Court of Nigeria

On Friday, the 9th day of March, 2018

SC.744/2013

RATIO

WHETHER THE TRIAL COURT IS EMPOWERED TO CALL A FRESH WITNESS OR RECALL A WITNESS THAT HAS ALREADY GIVEN EVIDENCE AFTER THE PARTIES HAVE CLOSED THEIR CASES

I am of the firm view that the trial Court was right when it acted under Section 200 of the CPL to reopen the prosecution’s case at the stage it did. By the provision of Section 200 of the CPL, a Court is empowered to either call a fresh witness or recall a witness that has already given evidence where the pieces of evidence to be given are essential for the just determination of the case. In Ayub-Khan v. State (1991) 2 NWLR (Pt. 172) 127 which was cited and relied upon by both parties, this Court held: -“The trial Judge has always had the power suo motu in a criminal proceeding without the consent of the parties to summon a witness, or of recalling a witness to testify even at the close of the case and before judgment if in his opinion this course is necessary in the interest of justice. The Appeal Court will not interfere with the exercise of such discretion unless it appears that an injustice has thereby resulted.” The words of Section 200 of the CPL appear to have limited and circumscribed the exercise of the power to recall witnesses after the close of parties cases to the Court alone. However the Court before which a case lies has absolute discretion to raise new issues and then invite parties for further address in order to do justice or act on any application by any of the parties where a grant of such application will not occasion a miscarriage of justice. The gun that is sought to be introduced in evidence was in possession of the appellant at the time the offence for which the Appellant is standing trial was committed. The Appellant’s insistence that the gun should not be introduced in evidence after the closure of the parties case is an argument that seeks to introduce technicality into a criminal case in order to blur the vision of the Court. This is unacceptable as it is no longer the practice of this Court to rely on technicality as opposed to doing substantial justice. In Psychiatric Hospital Management Board v. Edosa (2001) 5 NWLR (Pt.707) 612 at 623 paragraph A, Wali JSC said: – “The Courts are now more concerned with doing substantial justice than changing to procedural technicalities and therefore concerns themselves with the substance and not the form. This apart, the allegation against the respondent involved commission of crime which raised the onus to that of proof beyond reasonable doubt on the Appellant.” The lower court in its judgment said: – “As stated in their brief, the Appellant’s defence to the charge is that there was an “accidental discharge” while he was struggling with the deceased. My view is that apart from being in the interest of justice to tender the gun used in the alleged commission of the offence, it is in the greater interest of the Appellant to call the ballistician who is an expert in the mechanics and technical data of a gun to give evidence in Court. This will certainly assist the Court in deciding one way or the other as to how the gun exploded and killed the deceased. Was it deliberately fired OR, was it an “accidental discharged” as alleged by the Appellant This piece of evidence is, in my opinion very essential and is in the interest of both parties.” I agree with the Learned Justices of the lower Court that in a criminal trial, all the evidence required for a just and fair determination of the case are very essential and effort to introduce such evidence must be encouraged even when parties have closed their respective cases and before the judgment. I also agree that where any of the parties to the case draws the attention of the Court to any witness whose evidence can help to resolve the matter one way or the other and the Court subsequently accepts and orders the calling of such witness, such discretion of the Court should not be regarded as an obstacle to justice. In a Scottish case of Todd v. Macdonald (1960) SC (J) 93, it was clearly stated that the power of recalling a witness is not limited to the purpose of clearing up ambiguities in the evidence that had already been given, but that the party recalling him might put to the witness, any completely new point which had inadvertently been omitted in his original evidence. See Bevan v. M’ Mhon and Bevan 164 ER 912 at 913. In this country, we operate the accusatorial system as opposed to inquisitorial method of trying an accused person, in which a Judge rarely interferes with the conduct of cases by descending into arena of contest. The major feature of this system is the passive and inactive role of the judge in the presentation of cases in Courts. The judge under this system is at best an attentive listener to all that is said on both sides. He speaks mainly to deliver judgments. This passive role of the judge emphasizes the active role of Counsel for the prosecution and for the defence. See David Uso v. C.O.P. (1972) 11 SC 37 at 46 – 47, Josiah v. The State (1985) 1 SC 406 at 443 PER PAUL ADAMU GALINJE, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

Between

SGT. ALFRED KAJAWA Appellant(s)

AND

THE STATE Respondent(s)

PAUL ADAMU GALINJE, J.S.C. (Delivering the Leading Judgment): The Appellant herein was arraigned before the Lagos State High Court on the 31st January, 2005 charged with murder of one Mohammed Heshimu under Section 319(1) of the Criminal Code of Lagos State. In order to prove its case, the prosecution called two witnesses and tendered the extra-judicial statement of the appellant, the post mortem report and the picture of the corpse of the deceased which were admitted in evidence and marked Exhibits A, B and C respectively. On the 2nd of April, 2005 Learned Counsel for the Respondent did inform the Court that the Baretta Riffle used by the Appellant on the day of the incident was with a ballistician at C.I.D. Alagbon close for examination and report. Learned Counsel further informed the Court that the ballistic report was not available. At this point, Learned Counsel applied to recall PW1 to tender the rifle at the next date of adjournment.

On the 22nd June, 2006, Learned Counsel for the Respondent gave notice of the prosecution’s desire to call PW1 through whom the gun will be tendered in the following words: –
“We are unable to produce the PW1 who we want to

recall to come and tender the gun used in killing the deceased. We are not objecting to the Defendant opening their case.”

Learned Counsel then made a no case submission on behalf of the Appellant which was overruled on the 28th December, 2006. Thereafter the Appellant testified in his defence and called no further witness. At the close of the Appellant’s case, Learned Counsel for the Respondent reminded the Court about his wish to recall PW1 to tender the ballistic report and thereafter applied to reopen the prosecution’s case to accommodate the evidence in respect of the ballistician’s report.

Learned Counsel for the Appellant raised objection to the application to reopen the prosecution’s case. After hearing both parties on the application to reopen the prosecution’s case, the learned trial Judge, Nwako J., in a reserved and considered ruling granted the application in which he allowed the prosecution to call the ballistician as witness in order to tender in evidence the gun and the ballistician report. It is against this interlocutory ruling that the appellant appealed to the Court of appeal. In a reserved and considered

judgment delivered on the 12th June, 2012, the lower Court, Coram Akaahs, Okoro and Bage JJCA (as they all were) found the appeal lacking in merit and dismissed same.

The Appellant is dissatisfied with the decision of the lower Court. Being aggrieved, he has brought this appeal. His notice of appeal at pages 346 – 356 of the printed record of this appeal contains six grounds of appeal. Parties filed and exchanged briefs of argument. The Amended Appellant’s brief of argument, settled by Chukwuka Ikwuazom Esq., of Counsel to the Appellant was filed on the 19th December 2016, but deemed properly filed and served on the 14th December 2017. At page 6 paragraph 3.00 of the said brief of argument, learned Appellant’s Counsel formulated one issue only for determination of this appeal as follows: –
“Whether in the circumstances of this case, the lower Court was correct in affirming the decision of the Trial Court granting leave to the prosecution to call a new witness who will adduce fresh evidence after the close of the case for the defence.”

Mr. Adeniji Kazeem, Learned Attorney General of Lagos State, who settled the Respondent’s brief of

argument filed on the 22nd July, 2016, but deemed filed on the 29th August, 2016 and further deemed on the 14th February, 2017 at pages 4 – 5 of the said brief formulated two issues for determination of this appeal. The two issues are reproduced hereunder as follows: –
i). Whether in the circumstances of this case, the lower Court was correct in law when it affirmed the Ruling of the Trial Court, granting leave to the Respondent to re-open its case to call a witness at the close of the case for the Appellant.
ii). Whether the lower Court and the Trial Court ought to have relied on the provisions of Section 289 of the Criminal Procedure Law 2003 rather than Section 200 of the Criminal Procedure Law 2003 in coming to a decision in this case.

The Appellant in this appeal is the person aggrieved by the decision of the lower Court. It is he that has the burden to state the areas and the circumstances in which he is aggrieved. The duty of the Respondent is to reply to the queries raised by the appellant. He has no right to go outside the areas of grievances since he did not file a cross-appeal or a Respondent’s notice of intention to rely on other areas in urging the Court to

in urging the Court to affirm the decision of the lower Court. For the Respondent to distill more issues than the Appellant is an anomaly which portrays him as crying more than the bereaved. I will therefore adopt the sole issue formulated by the Appellant’s Learned Counsel in determining this appeal.

In arguing the sole issue for determination, Learned Counsel for the Appellant urged this Court to overturn and/or set aside the decision of the Court of Appeal on the following reasons: –
1. The learned trial Court in arriving at its decision applied Section 200 of the Criminal Procedure Law rather than Section 289 of the same law. Had the Trial Court applied the provisions of Section 289 of the Criminal Procedure Law to the Respondent’s application to call new evidence, it would have inevitably concluded that the defence had not introduced any evidence which the prosecution could not reasonably foreseen and dismissed the Respondent’s application. The Court of Appeal therefore erred in upholding the decision of the Trial Court.
2. The Learned Trial Court in applying the said Section 200 of the CPL failed to take into consideration the principles laid down by the Supreme Court in a plethora of cases.

Had the trial Court taken these principles into account, it would have dismissed the Respondent’s application as granting it would inevitably strengthen the case of the prosecution and weaken the defence of the Appellant. Again, the Court of Appeal erred in not setting aside the decision of the Trial Court on this ground.
3. The Learned trial Court’s decision allowing the prosecution to call new evidence and the Court of Appeal’s judgment upholding it are contrary to the interest of justice and will seriously prejudice the Appellant.

In his reply, the Learned Attorney General of Lagos State submitted that the Appellant has not shown sufficient reasons to warrant setting aside the decision of the lower Court and that of the trial Court. Learned Attorney General urged this Court to hold that the appeal lacks merit and to dismiss same on the following grounds: –
1. The order of the Trial Court allowing the Respondent’s application to re-open its case to call a witness is not based upon the ex-improviso principle in Section 289 of the CPL 2003 but is based under Section 200 of the CPL 2003.

The Trial Court was right in exercising its power to grant an order allowing the Respondent to reopen its case to call the Ballistician under Section 200 of the CPL 2003.
3. The lower Court was right to have affirmed the decision of the Trial Court to exercise its power to grant an order allowing the Respondent to reopen its case and call the Ballistician.
4. The decision was made in the interest of justice to ensure that all material facts are placed before the Court and the Appellant could not have been prejudiced in any way as he would be able to cross-examine the said witness.Now Section 200 of the Criminal Procedure Law of Lagos State, 2003, provides as follows: –
“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 re-examine any person already examined and the Court shall examine or recall and re-examine any such person if his evidence appears to the Court to be essential to the just decision of the case.”
Section 289 of the Criminal Procedure Law of Lagos State, which the Appellant also made reference to provides as follows:
“If the defendant adduces in his evidence new

matter which the complainant could not foresee, the complainant may with the leave of Court, adduce evidence to rebut such first mentioned, evidence.”
I wish to state straight away that the application by the learned counsel for the Respondent to recall PW1 or call the Ballistician through whom the gun which was allegedly used in killing the deceased would be tendered was not made as a result of any new evidence adduced by the Appellant in his defence. Learned Counsel for the Respondent had put the Court on notice about his intention to recall PW1 before the prosecution’s case was closed. When it became impossible to procure the presence of PW1, Learned Counsel did apply to call the ballistician that inspected the gun. The procedure adopted by the trial Court does not fall within Section 289 of the CPL where the recall of a witness is subject to new evidence by the defence. I am of the firm view that the trial Court was right when it acted under Section 200 of the CPL to reopen the prosecution’s case at the stage it did. By the provision of Section 200 of the CPL, a Court is empowered to either call a fresh witness or recall a witness that has

already given evidence where the pieces of evidence to be given are essential for the just determination of the case. In Ayub-Khan v. State (1991) 2 NWLR (Pt. 172) 127 which was cited and relied upon by both parties, this Court held: -“The trial Judge has always had the power suo motu in a criminal proceeding without the consent of the parties to summon a witness, or of recalling a witness to testify even at the close of the case and before judgment if in his opinion this course is necessary in the interest of justice. The Appeal Court will not interfere with the exercise of such discretion unless it appears that an injustice has thereby resulted.”
The words of Section 200 of the CPL appear to have limited and circumscribed the exercise of the power to recall witnesses after the close of parties cases to the Court alone. However the Court before which a case lies has absolute discretion to raise new issues and then invite parties for further address in order to do justice or act on any application by any of the parties where a grant of such application will not occasion a miscarriage of justice. The gun that is sought to be introduced

in evidence was in possession of the appellant at the time the offence for which the Appellant is standing trial was committed. The Appellant’s insistence that the gun should not be introduced in evidence after the closure of the parties case is an argument that seeks to introduce technicality into a criminal case in order to blur the vision of the Court. This is unacceptable as it is no longer the practice of this Court to rely on technicality as opposed to doing substantial justice.
In Psychiatric Hospital Management Board v. Edosa (2001) 5 NWLR (Pt.707) 612 at 623 paragraph A, Wali JSC said: –
“The Courts are now more concerned with doing substantial justice than changing to procedural technicalities and therefore concerns themselves with the substance and not the form. This apart, the allegation against the respondent involved commission of crime which raised the onus to that of proof beyond reasonable doubt on the Appellant.”
The lower court in its judgment said: –
“As stated in their brief, the Appellant’s defence to the charge is that there was an “accidental discharge” while he was struggling with the deceased. My view

is that apart from being in the interest of justice to tender the gun used in the alleged commission of the offence, it is in the greater interest of the Appellant to call the ballistician who is an expert in the mechanics and technical data of a gun to give evidence in Court. This will certainly assist the Court in deciding one way or the other as to how the gun exploded and killed the deceased. Was it deliberately fired OR, was it an “accidental discharged” as alleged by the Appellant This piece of evidence is, in my opinion very essential and is in the interest of both parties.”
I agree with the Learned Justices of the lower Court that in a criminal trial, all the evidence required for a just and fair determination of the case are very essential and effort to introduce such evidence must be encouraged even when parties have closed their respective cases and before the judgment. I also agree that where any of the parties to the case draws the attention of the Court to any witness whose evidence can help to resolve the matter one way or the other and the Court subsequently accepts and orders the calling of such witness, such discretion of the Court

should not be regarded as an obstacle to justice. In a Scottish case of Todd v. Macdonald (1960) SC (J) 93, it was clearly stated that the power of recalling a witness is not limited to the purpose of clearing up ambiguities in the evidence that had already been given, but that the party recalling him might put to the witness, any completely new point which had inadvertently been omitted in his original evidence.
See Bevan v. M’ Mhon and Bevan 164 ER 912 at 913. In this country, we operate the accusatorial system as opposed to inquisitorial method of trying an accused person, in which a Judge rarely interferes with the conduct of cases by descending into arena of contest. The major feature of this system is the passive and inactive role of the judge in the presentation of cases in Courts. The judge under this system is at best an attentive listener to all that is said on both sides. He speaks mainly to deliver judgments. This passive role of the judge emphasizes the active role of Counsel for the prosecution and for the defence.
See David Uso v. C.O.P. (1972) 11 SC 37 at 46 – 47, Josiah v. The State (1985) 1 SC 406 at 443

It is in view of the adversary system which we practice that a judge should refrain from calling or recalling witnesses for the parties before him. The application by the Learned Counsel for the Respondent to call a ballistician to tender a gun, which he had before the close of parties case drawn the Courts attention to, in my view was in order, and the grant of the application has not insulted the Law. The Learned trial judge acted in the overall interest of justice as the evidence of the ballistician is so essential to the just determination of the case. The lower Court was right when it upheld the ruling of the trial Court.

The sole issue formulated by the Appellant is resolved against him. Appeal is accordingly dismissed for lacking in merit. The ruling of the Lagos State High Court which was affirmed by the lower Court is further affirmed by me.

OLABODE RHODES-VIVOUR, J.S.C.: I had the advantage of reading a draft of the leading judgment delivered by my learned brother Galinje JSC. I agree with his lordship’s reasoning and conclusion that there is no merit in this appeal.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft, the judgment of my learned brother, PAUL ADAMU GALINJE, JSC just delivered. I agree entirely that this appeal is devoid of merit and deserves to be dismissed.

The appellant is challenging the decision of the Court below affirming the order granted by the trial Court permitting the prosecution to reopen its case after the close of the defence in order to call the ballistician who had custody of the gun used in committing the crime for which the appellant is standing trial.

In my view, the application before the trial Court was for the exercise of its discretionary powers in order to do justice in the case. As rightly pointed out in the lead judgment, the prosecution had given notice during the course of the trial of its intention to re-call PW1 for the purpose of tendering the gun used in committing the offence. Despite spirited efforts, the witness could not be traced. However, the ballistician who had custody of the gun was available and this was why the prosecution applied to reopen its case so that he could tender it.

It must be stated that the appellant was not taken by

surprise by the application since the intention of the prosecution was made known to the Court earlier. There is no doubt that the exercise of the Court’s discretion in granting the application was in the overall interest of justice. The evidence of the ballistician would have enabled the prosecution place all relevant facts before the Court to enable it reach a just decision in the matter before it. The parties were yet to deliver their final addresses and the appellant would have been at liberty to cross-examine the witness.

Learned counsel for the appellant has made heavy weather of Section 200 of the Criminal Procedure Law under which the application was brought and submits that it is only applicable where the Court calls a witness suo motu. I am of the view that in the circumstances of this case, the jurisdiction of the Court was properly invoked. In any event, this application was one that could have been granted under the inherent jurisdiction of the Court. At the end of the day, the appellant has not been able to show that the decision of the lower Court affirming the ruling of the trial Court is perverse or that he has suffered a miscarriage of justice.

For these and the more detailed reasons advanced in the lead judgment, I also dismiss the appeal for lacking in merit. The judgment of the lower Court is hereby affirmed.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgement which my Lord, Galinje, JSC, just delivered now.

Section 200 of the Criminal Procedure Act, the precursor of Section 200 of the Criminal Procedure Law of Lagos State, 2003, was a subject of very many judicial decisions explaining the need for judicial caution and actually setting the limits for interference, Onuoha and Ors v. The State (1989) LPELR – 2704 (SC) 222; A-B.
The result was a divergence in the judicial invocation of the section. Thus, in the older cases, the Courts emphasized this need for caution. Examples will illustrate this position. In Salawu v. The State (1970) LPELR 2990 (SC) 9; B – E, this Court maintained that:
As a rule of law, it is not within the province of a trial judge in determining whether or not he should allow witnesses to be called on behalf of an accused person to take into consideration the probability of the witness

being able to give material evidence. That was the rule laid down by the Privy Council in Shorunke v. The King (1946) AC 316. It was subsequently followed by the West African Court of Appeal in Rex v. Akpan Udo Modem and Anor 12 WACA 224.
In our view, it was not open to the learned trial Judge and, least of all, the Western State Court of Appeal to have presumed without having heard the witness sought to be recalled that his evidence would not be essential to a just decision in the instant case. Until the witness had testified before the Court, it was impossible to determine the nature and substance of the evidence he was to give on behalf of the appellant. In the circumstances, we accept the submission of the learned counsel for the appellant that the defence of the appellant was not adequately investigated and that by refusing to recall Salawu Oyeleye (PW2) on the application of the learned counsel for the appellant, the learned trial Judge had deprived the appellant of the opportunity of placing the whole of his defence before the Court.
Just a year, thereafter, in Ufot George and Anor v. The State (1971) LPELR – 1318 (SC) 7; D- G, this Court explained that:

The power of the Court to recall a witness is laid down in Section 200 of the Criminal Procedure Act In order that injustice should not be done to the accused, the calling of a witness after the close of the defence must be exercised with caution and should normally be limited to matters raised for the first time by the defence.
In the same vein, Oputa, JSC, hinted in Onuoha and Ors v. The State (1989) LPELR – 2704 (SC) 22; A – B, that
…if at the close of the defence, the totality of the evidence causes the trial Judge to doubt, the law is that the benefit of such a doubt be given to the accused. It is definitely not our law that a trial Judge should invoke Section 200 C.P.L. and call his own witnesses in order to clear that doubt, see, Dickson Ejukolem v. I.G. of Police (1952) 14 WACA 161; Horvat v. Police (1952) 20 NLR 52, 54.
The power to call or recall witnesses after the close of the defence should be used with the greatest caution, West v. Police (1952) 20 NLR 71, 72.
In our Adversary System, the role of the Judge is passive, while that of counsel is rather active. A Judge

should not appear to be a participant otherwise, he will not be seen to be holding the scales of justice fairly, evenly and impartially.
In 2004, Uwais, JSC, had the opportunity of making input into this question. That was in Orisakwe v. The State (2004) LPELR -2764 (SC) 26; E- F. His Lordship had to construe Section 200 of the Criminal Procedure Law, Cap 31, Laws of Eastern Nigeria, 1963, (in pari materia with the above Lagos Law). His Lordship, first considered the earlier decision in Onuoha and Ors v. The State (supra). He observed thus:
In the case of Onuoha v. The State [1989] 2 NWLR (pt. 101) 23, 44; D – F, this Court observed as follows:
The other issue I would like to consider is the regularity or otherwise of the calling of two witnesses suo motu by the trial Judge after the close of the defence. In Police v. Horvat (1952) 20 NLR 52, applying R. v. Owen (1952) 1 All ER 1040, it was held that it would be contrary to natural law and against the spirit of the law for a trial Court to recall an accused person (or call a witness for that matter) after the close of defence and addresses in order to clear up its doubts. For that would in

effect be depriving the accused of the benefit of the doubt.
In the instant case, counsel had not addressed the Court and the learned trial Judge did not say he was calling the witnesses to clear any doubt he had. One thing however is certain, the additional witnesses called after the defence has closed its case was not called on any matter arising ex improviso from the defence. Another is that the additional evidence was used to strengthen the case for the prosecution and to weaken that for the defence. For these reasons, I am satisfied that the calling of the additional witnesses after the close of the defence was a grave irregularity which has occasioned a miscarriage of justice. See, West v. Police (1952) 20 NLR 71 and R v. Egwuatu (1940) 6 WACA 79 and Ejukolem v. Police (1952) 14 WACA 161.
Per Agbaje, JSC.
His Lordship, then, proceeded thus:
It follows that it is irregular for a trial Judge to recall an accused or call a witness after the close of defence. However, this dictum appears to me to contradict the specific provisions of Section 200 of the Criminal Procedure Law, Cap. 31, which allows (sic) a trial Court at any stage of the trial to call any person as a witness

or recall any witness including the accused if his evidence appears to the Court to be essential to the just decision of the case.
In the same case (supra) on p. 36 D-E, Oputa, JSC made the following observation:
This Section – 200 CPL – has been the subject of very many judicial decisions explaining the need for this judicial interference and also setting the limits thereof 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. v. Dora Harris (1928) 20 Cr. App. R. 86, 89; 28 Cox C. C. 432, 435-436.
Rounding off this issue, His Lordship held that:
I therefore hold that the calling of additional witnesses suo motu by the learned Chief Judge though irregular, did not occasion miscarriage of justice and the appellant’s right to fair hearing was not infringed since his counsel,

who consented to the irregularity, had the opportunity to cross-examine the additional witnesses and no desire had been expressed or denied, for the accused to call any witness to rebut the additional evidence called by the trial Chief Judge. Had it been that the additional evidence was called by the trial Chief Judge to enhance the case of the prosecution with regard to the age of the accused, I would have relied on the decision in Onuoha’s case (supra) to reject the additional evidence. [Italics supplied]
The decision in Ayub-Khan v. State [1991] 2 NWLR (pt. 172) 127, equally shows that the most important consideration in such situations is “the just decision of the case,” page 145.

It is for these, and the more detailed reasons in the leading judgement that I too dismiss this appeal for lacking in merit. Appeal dismissed.

EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered in this appeal by my learned brother, PAUL ADAMU GALINJE, JSC. The judgment represents my view in the appeal. I hereby adopt it.

Because the Courts of justice days drift from arcane

technicality and have become more concerned with doing substantial justice, I hold the firm view that the Appellant has not suffered any miscarriage of Justice by the trial Court reopening the case to enable the prosecution to put in evidence the alleged crime gun and the ballistician’s report. The Appellant’s rights, including the right to cross-examine the ballistician on his report, were not in any way compromised.

There is no substance in this interlocutory appeal. The appeal is completely unnecessary in the first place. Accordingly, the appeal is hereby dismissed. The decision of the Court of Appeal, the subject of this appeal, is hereby affirmed.

Appearances:

Mr. C. Ikwuazom with him, D. D. Killi For Appellant(s)

Mr. Afolabi A. Solebo (Asst. DPP, Lagos State) with him, E. R. Agu (CSC) For Respondent(s)

Appearances

Mr. C. Ikwuazom with him, D. D. Killi For Appellant

AND

Mr. Afolabi A. Solebo (Asst. DPP, Lagos State) with him, E. R. Agu (CSC) For Respondent