3PLR – ALHAJI AHMED AYUB-KHAN V.  THE STATE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI AHMED AYUB-KHAN

V

THE STATE

SUPREME COURT OF NIGERIA

APPEAL NO. S.C. 226/90

22ND FEBRUARY, 1991

3PLR/1991/56  (SC)

 

OTHER CITATIONS

[1991] 1 NSCC 300

 

BEFORE THEIR LORDSHIPS

OBASEKI, J.S.C.

KARIBI-WHYTE, J.S.C.

BELGORE, J.S.C.

OLATAWURA, J.S.C.

AKPATA, J.S.C.

 

REPRESENTATION

C.C. Irorakpor – for the appellant

A.A. Jafau, State Counsel, Bauchi State (with him, K.N. Amidu and J.F Adams, State Counsel) – for the respondent

 

MAIN ISSUES

CONSTITUTIONAL LAW – Legislation – S. 237 Criminal Procedure Code – Construction and application of.

PRACTICE AND PROCEDURE – S.237 CPC – Power of trial judge to call witnesses after close of case for defence -Applicable only where justice of case so demands – 5.208 Criminal Procedure Code – Exercise of powers to frame various charges in the course of same trial – Whether trial court can do so – Proof of guilt of accused – Duty of prosecution to do so -Duties of a judge-Judge not a party to proceedings before him -to act as unbiased umpire.

 

MAIN JUDGEMENT

BELGORE, J.S.C. (Delivering the Lead Judgment):

I dismissed this appeal on 6th day of December, 1990 and I now give my reasons for so doing.

The appellant was taken before a Bauchi Chief Magistrate on a First Information Report alleging that, as a storekeeper with the Bauchi State Water Board (a parastatal of Bauchi State Government), he stole eight stainless steel drilling pipes, the property of the Board.

On 22nd June, 1986, a Sunday, the appellant went to a motor park in Bauchi, and invited Shehu Mohammed, a motor conductor (PW2), Alhaji Mohammed Baba-Chika (a loader at the same park) (PW3) and Yusuf Musa (PW.1) a motor driver, to follow him to the premises of Bauchi Water Board to carry the pipes in question. The three men followed him to the Board’s premises and loaded the pipes onto their truck. They had earlier passed through the gate where a security man, Yalwa Mohammed (PW.5) was on duty. Now on their way out PW.5 stopped them and enquired about the load they were about to carry out. They pointed at the appellant, who in turn admitted he brought the lorry to carry the pipes which he alleged he was giving out on loan to some unspecified persons. The appellant drove his own vehicle and the truck driven by P WA in which P W 2 and PW3 and containing the pipes followed him. On being challenged by the security man (PW.5) the appellant instructed PW1, PW2 and PW.3 to unload the pipes and they complied. PW5 then alerted his boss, Baba Sanyi (PW.6) and he in turn reported to the General Manager of the Board, Mr. Tolani, (PW.7). The appellant admitted bringing the lorry with the PW1, PW2 and PW3 to carry the pipes and that he was going to give them out on loan to a company he never named. But he immediately started pleading for forgiveness. The PW7 reported to the police.

After receiving evidence in accordance with S.158 Criminal Procedure Code Law, the magistrate in accordance with Section 160 framed two charges in the alternative, to wit, attempted criminal breach of trust by a public servant under  Section 315 of the Penal Code, and attempted criminal misappropriation under Section 309 of the Penal Code. The appellant pleaded not guilty to any of the charges. He recalled two prosecution witnesses for further cross-examination. The prosecution thereafter closed its case and the defence followed. After the address by counsel, the case was adjourned for judgment. On the date for judgment, the magistrate decided she needed the evidence of two officers of the water Board in accordance with S.237(1)(a) Criminal Procedure Code.

There was no objection to this procedure. The section reads in part as follows:-

“237(1)Any court may at any stage of an inquiry, trial or other judicial proceedings 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 person —

(a)     if his evidence appears to the court to be essential to the just decision of the case”

Attempt had been made on several occasions to read qualification into this subsection. Unlike the phrase “at any time before judgment” in Section 208 of the Criminal Procedure Code in regard to alteration of a charge, the words “at any stage of an inquiry” goes further. It means all the stages of a trial before verdict. Unlike the test under the Common Law or under the Criminal Procedure Act (a statute existing before the Code) the insertion of the words “at any stage” is clear in its Intendment. Under the section, once the court is of the opinion that It is expedient for a just decision of the case, that is to say, In the overall Interest of justice that witness must be called, the ex-improviso rule in such cases as R v. Frost (1839) 4 St. Tr. (N.S.) 85 and 9 C&P 128 will not apply. See Commissioner of Police v. S. Prediegha (1975) N.N.L.R. 170 Garba Dandare v. The State (1966) N.N.L.R. 129. The overriding principle is that justice must demand the calling of the witnesses; in this case justice implies what is reasonably just in a final decision of the case. See Juma Ali v. Republic (1964) E. A. 461. Such witnesses, if called, must be made available to the defence for cross-examination despite this court’s decision in Bawa Jubril v. The State (1968) 1 All N.L.R. 91.

The appellant here wants the entire proceeding to be declared null and void because the trial magistrate called two witnesses after defence closed Its case but before judgment. In deferring judgment further, the magistrate clearly stated her reasons for so doing:-

“This order is made pursuant to S.237(1) (a) of the Criminal Procedure Code as their evidence appear (sic) to the court to be essential to the just decision of the case.”

To my mind there could not be a better reason by virtue of S.237(1)(a) C.P.C. for the two witnesses being called to testify. It is however remarkable that the two witnesses never said much on the commission of the crime. The over whelming evidence against the appellant established his being storekeeper with the Bauchi Water Board (including his own evidence), that without authority he fraudulently removed the pipes and was about to take them finally out of the possession of the said Water Board but for the intervention of the security officer at the final gate. The evidence of PW12 and PW13 was merely as to the procedure for removing items from the store, an issue already explained fully in the evidence taken earlier by the court. I find no evidence of miscarriage of justice in the calling of these two witnesses.

It is however remarkable that the magistrate, after all the evidence before her, finally convicted for a lesser offence of theft under S.287 Penal Code and sentenced the appellant to a fine of N500 or two years imprisonment in default. She has been too lenient to the appellant in this serious crime. However, there is no appeal against the sentence; had there been one, I would have seriously considered it.

It was for the above reasons that I dismissed this appeal on 6th December, 1990 and affirmed the decision of the Court of Appeal.

OBASEKI, J.S.C.: On the 6th day of December, 1990, this appeal came up for hearing. After hearing the oral submissions of counsel and studying the brief of arguments together with the record of proceedings and judgment in the court below, I found the appeal totally devoid of merit and I dismissed it summarily. I then indicated that I would give my reasons for so doing today. I now proceed to give them. Before now, I had the advantage of reading the reasons for judgment just delivered by my learned brother, Belgore, J.S.C., and I am in entire agreement with the opinions expressed therein on all the issues raised in the appeal for determination.

The appellant, a storekeeper with the Bauchi State Water Board was arraigned on a first information report before a Bauchi Chief Magistrate on a charge of stealing eight stainless steel drilling pipes, the property of the Board. He was tried and the evidence against him being overwhelming and proving the charge beyond any reasonable doubt, he was convicted of theft, a lesser offence, and sentenced to a fine of N500.00 or two years imprisonment.

The appellant was caught with the eight steel pipes when he was conveying them out of the Board’s premises and in my view, he had no defence whatsoever. The pipes belong to his employers and his explanation that he was taking them out of the premises with the intention of giving them out on loan to a third party without the authority of his superior officers rather than exonerated him implicated him the more.

The submission of counsel that there was procedural irregularity and a breach of fair hearing because two witnesses were called at the instance of the court has been fully dealt with in the reasons for judgment delivered by my learned brother, Belgore, J.S.C.

With the admission of the appellant before the trial Chief Magistrate, the evidence of the witnesses was superfluous as it added nothing to the proof of the charge already established before the court. If there is any error, it was not an error of lack of statutory authority to call the witnesses in the interest of justice, it was an error of judgment of the necessity for their evidence.

There is no merit whatsoever in this appeal and it was for the above reasons and those set out in the reasons for judgment delivered by my learned brother, Belgore, J.S.C that I dismissed the appeal.

KARIBI-WHYTE, J.S.C.: On the 6th December, 1990, I summarily dismissed the appeal of the appellant; and indicated that I will give my reasons for doing so today. I have read the reasons given by my learned brother S.M.A. Belgore, J.S.C. for dismissing the appeal. I agree with them. I only wish to make my own contribution to the often discussed issue of the propriety of the trial judge calling witnesses suo motu after the close of the case of defence. This is the issue heavily relied upon by learned counsel to the appellants in this case.

My learned brother, S.M.A. Belgore, J.S.C. has stated the facts compendiously. As I do not intend to repeat them. I accordingly adopt them.

Learned counsel to the appellant Mr. Irorakpor has formulated the following three issues for determination

“1.     Whether the learned justices of the Court of Appeal were right in disregarding the Supreme Court’s decision, as regards the issue of a trial judge calling witnesses suo motu at the close of the defence’s case – as laid down in the case of Sunday Onuoha v. The State – (1989) 2 N.W.L.R. 23 Part 101, (1989) 2 S.C.N.J. 225.

  1. Were the learned justices of the Court of Appeal right, in upholding the Trial Magistrates Procedure of framing three (3) various charges in the course of the same trial?
  2. Whether the learned justices of the Appeal Court did misdirect themselves in law in holding

(i)      that the appellant did put as a defence the issue of asportation and

(ii)     that the Supreme Court opinion in Denloye v. M.D.PD. (1968) 1 All N.L.R. 306 have been overtaken by the codification of sections 237 C.PC. and 260 CRA.”

I think there is a typing error in respect of section 260 of CRA. I think the reference is to section 200 of the Criminal Procedure Act.

These three issues were formulated from the four grounds of appeal filed by the appellant against the judgment of the court below. The first issue covers grounds 1 and 2, and the second and third issues cover the third and fourth grounds of appeal. It is relevant to mention that part of grounds 4 which complains about the failure to follow Denloye v. M.D.PD. relates to the same complaints as ground 1 and issue 1 which involves the proper construction of the words of section 237(i) of the Criminal Procedure Code.

I shall consider the first issue for determination, which, as I have already stated, involves the correct construction and application of section 237(1) of the Criminal Procedure Code. The appeal hangs essentially on this issue.

“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

xxxxxxxx (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 so summoned or called under paragraph (b) of subsection (1).”

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 re-examined by the prosecutor or complainant

(b)     if examined by the accused be cross-examined by the prosecutor or complainant and then be re-examined 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.”

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.

I have reproduced the relevant provisions of section 237 in extenso to demonstrate its extensive nature and amplitude of the enabling powers.

Before I attempt a construction and application of the section, I shall state so much of the facts of the case which necessitated a resort by the learned trial Magistrate to its application.

After the defence has closed its case, in respect of the offence of criminal breach of trust contrary to S.315 of the Penal Code with which appellant was then charged, learned counsel addressed the court. The trial Magistrate adjourned for judgment. On the 24th April, 1987, the trial Magistrate adjourned to 11/5/87 for addresses of counsel. After addresses by counsel on that date, the case was adjourned to 11/6/87 for judgment.

On the 11 /6/87 the learned trial Magistrate, relying on S.237(1) (a) of the Criminal Procedure Code suo motu ordered the Prosecutor to summon the store Officer and Store Keeper of the defunct Water Board as at 22/6/87, as it was expressed “as their evidence appear to the Court to be essential to the just decision of the case.” The case was adjourned to the 25/6/87.

On the 25/6/87 Ishiaku Saidu, a Stores Officer with the Urban Utilities Board, gave evidence as PW.12. He gave evidence that on 22/6/87, the accused now appellant was a Principal Stores Officer, in the Bauchi State Water Board. As at that time the witness was the Assistant Stores Officer responsible for the supervision of Store-Keepers with respect to issuing out and receiving of goods.

In answer to question by Court, witness said that as on 22/6/87, there was no requisition to him to issue out the eight pipes subject matter of the charge. He also testified that the accused was not in a position to authorise the issuance of the eight bore hole pipes. Learned counsel to the appellant did not put any questions to the witness. Sule Dadi, was called on PW 13. He is a Store Keeper with the Urban Utilities Board, formerly the Bauchi State Water Board. He testified that he was a store keeper on 22/6/87. His duty was to receive and also issue out goods when authorised by PWA2 Ishiaku Saidu in writing to do so. The authority is by Store issue voucher.

On cross-examination by counsel, he stated that the goods were under his custody as the Store Keeper. At the conclusion of the examination, learned counsel for the accused said that he was adopting wholly his earlier submission in court. Learned trial Magistrate then adjourned to 18th August, 1987 for judgment.

The record of proceedings discloses that the judgment was not delivered on the 18/8/87, but on the 22/9/87, the trial Magistrate framed a new charge of theft under section 287 of the Penal Code against the accused acting under section 208 of the Criminal Code. Before reading the new charges to the accused, the Magistrate stated,

“At the conclusion of the defence case the court found it imperative to summon the Store Officer and the Store Keeper to testify. At the close of their testimony, I am left with no option but to frame a new charge against the accused person. The two former alternate charges are hereby abandoned. I hereby act under section 208 C.RC. and frame a new charge as follows:-

‘The new charge was read and explained to the accused, who pleaded not guilty. Learned counsel to the accused then asked for adjournment to 5th October, 1987, for defence as he put it “in view of the new development.”

On the 5th October, 1987, learned counsel to the accused chose to address the court only, and relied on the case already made by the defence. Learned counsel in his address adopted the earlier submission he made on behalf of the accused on the 20th November, 1986. He also referred to the evidence of the two witnesses called by the Court and submitted that the prosecution had failed to prove the charge of theft against the ‘accused. The learned trial Magistrate adjourned judgment to 16th October, 1987; and found the accused guilty as charged.

There is no doubt that the learned trial Magistrate suo motu summoned PW12 and PW13 after defence had closed its case and the court had adjourned for judgment. This is the issue which accused had challenged on appeal in the High Court and in the Court below. It seems to me the other equally important issue of the exercise of powers under section 208 of the Criminal Procedure Code is not challenged. Thus there are two stages – namely

(i)      Exercise of the power to summon witnesses

(ii)     Exercise of power to frame anew charge.

Appellant was afforded opportunity to defend the new charge after pleading to it. The two witnesses were not called in respect of the defence of the new charge.

I am referring to this fact because the exercise of the powers under section 208 of the C.RC. appears to be linked with the summoning of the witnesses. Learned counsel to the appellant, Mr. Irorakpor, in his argument before us adopted and relied on the brief he filed for the appellant. His entire argument dwelt on the exercise by the trial Magistrate of the power under section 237(1) of the C.RC. and the error of the Court of Appeal in failing to follow the recent decision of this court in Sunday Onuoha v. The State (1989) 2 N.WL.R. (part 101) 23.

Mr. Irorakpor submitted that the trial Magistrate could not have convicted the appellant of the offence of theft at the close of the prosecution’s case, but for the evidence of P W 12 and R W.13 called suo mote by the trial judge at the close of the case. It was submitted that before the introduction of this evidence the essential ingredients of the offence were not proved. The conviction of the accused/appellant was based on the evidence of PW12 and PW13.

Learned counsel submitted that section 237 of the C.RC. enables a trial judge suo mote to call a witness or witnesses at any stage in respect of an on-going charge. It does not provide for a situation where witnesses could be called to build up a new charge.

Referring to Abashe v. Police (1962) N.N.L.R. 79 it was submitted that the situation did not necessitate calling of the witnesses which did not arise ex-improviso.

I concede to and agree entirely with Mr. Irorakpor, that the Court of Appeal was wrong in stating that the dictum of Ademola, C.J.N., in Denloye v. M.D.PD. (1968) 1 All N.L.R. 306, that:-

“Section 200 of the Criminal Procedure Act should not be used to admit evidence after the case had been closed and adjourned for judgment.”

“… appears to have been overtaken by the codified provisions in section 237 of C.P.C. supra and 200 of the C.P.A. itself which prevail.” Mr. Irorakpor is quite right that the Criminal Procedure Code enacted in 1960 were already in existence in 1968 when Denloye v. M.D.P.D. was decided by the Supreme Court.

The Courts of this country have even before the provision of section 200 of the Criminal Procedure Act, in 1945 and S.237 of the Criminal Procedure Code in 1960 adopted the English common law principle following R. v. Frost 9 C & P at p. 129 that 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 Court of Appeal will not interfere with the exercise of such a discretion unless it appears that an injustice has thereby resulted. See Rex v. Sullivan (1923) 1 K.B. 47. This principle was applied in 1938 by the West African Court of Appeal in Rex v. Thomas Camara (1938) 4 WA.C.A. 41. In this case after the close of the case of the defence, the trial judge, at the instance of the accused, called a witness, who was cross-examined by the accused. The court rejected the criticism that the witness was called after the close of the case for the defence on the ground that the appellant did not thereby suffer any prejudice. Again in 1943 in Rex v. Edem & Ors. (1943) 9 W.A.C.A. 25, where the court called a witness after the close of the case of the defence to clear a matter which arose ex improviso, though not affecting the determination of the guilt of the appellant. The West African Court of Appeal held that the learned trial judge acted within his powers to clear a point which had arisen ex improviso.

However, in Rex v. Augustine Egwuatu (1940) 6 W.A.C.A. 79 decided in 1940 by the West African Court of Appeal, in a charge of official corruption under S.98(1) of the Criminal Code. Having observed that no case was made out against the accused at the end of the case for the prosecution learned counsel to the accused made a no case submission. He called no evidence, closed his case and relied on his submission that the prosecution had not proved its case. The learned trial judge recalled the 3rd P.W. and admitted Exhibit C on which he relied for the conviction of the appellant.

The West African Court of Appeal allowed the appeal on the ground that the witness was recalled to put in evidence a document which was essential as a foundation of the prosecution and without which there was no case to answer. The Criminal Procedure Ordinance Cap. 20 in existence during this period did not contain any provision enabling the exercise of such power. The provision was first introduced by the 1945 Ordinance.

I have already reproduced section 237 in this judgment. The precursor of section 237 in this country which is section 200 of the Criminal Procedure Act provides as follows:-

“200. The court at any stage of any trial, inquiry or other proceeding under this Act 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.”

The amplitude and plenitude of the section which enables the trial judge to do justice in cases before him must be construed within the recognised principles of the adversary system of our administration of justice, and the constitutional and statutory safeguards for proof in criminal cases. See section 33(5) constitution of 1979, section 137(1) of the Evidence Act.

It is well settled that the onus to prove the guilt of the accused rests entirely on the prosecution throughout the trial. Under no circumstances other than as expressly provided by statute will such a burden shift. Hence where the prosecution has charged a person with the commission of an offence, the burden of not only leading evidence to establish the commission of the offence so charged, but also proof thereof rests entirely on the prosecution. See I.G. of Police v. Oguntade (1971) 2 All N.L.R. 11, Akinfe v. State (supra) S. 137(1) Evidence Act. The position of a judge adjudicating in a case in our adversary system is that of an unbiased umpire. See Fallon v. Calvert (1960) 1 All E.R. 281. His role generally is to determine from the facts before him whether the charge against the accused has been proved. If this onus has not been discharged k is the constitutional and judicial duty of the judge to so declare. Not being party, he is bound to do nothing to promote the case of either party. He is only bound to do everything to achieve justice in the dispute between the parties before him and on the evidence presented.

The judge Is not a party to the proceedings before him. Hence statutory provision vesting In him powers to call witnesses, or recall witnesses, examine, and re-examine witnesses where k appears to him that the evidence is essential to the just decision of the case imposes on him a very grave responsibility to be exercised with utmost caution, circumspection and within the accepted principles of our administration of justice – See Akinfe v. State (supra).

It seems to me that the words of section 200 of the C. PA. are limited to and circumscribed by the exercise of 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 witness 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.

After re-enacting section 200 of the CRA. in section 237(1)(a), section 237(1)(b)(2)-(5) makes provision for the other situations not covered by section 200 of the C.P.A.

The most criticised aspect of the section is the exercise of the power to call or recall a witness after the close of the case of the defence. The traditional view naturally is that at the close of the case of the defence, the court is not entitled to introduce evidence to close any gaps in the case of the prosecution, which if not closed would entitle the accused to be discharged. This power is exercised because of the interpretation of the expression, “at any stage of any inquiry, trial or other judicial proceeding” in section 237(1). A similar expression in section 200 has been construed to mean and include all stages of the trial before verdict- See Commissioner of Police v. Sanni Olatilewa (1958) W.R.N.L.R. 200. It has been similarly construed in Commissioner of Police v. Prediegha (1975) N.N.L.R. 170 Bala Abashe v. Police (1962) N. N. L. R. 79, Bala & Ibrahim v. Commissioner of Police (1973) 1 N.M.L.R. 61.

The other expression worth serious consideration is in section 237(1)(a), °if his evidence appears to the court to be essential to the just decision of the case; or…… This seems to me the true rationale for the provision. A just decision of the case involves the scrupulous observation of the fundamental principles of our adversary system in which the judge maintains the position of an unbiased umpire; and credits the accused with innocence of the offence charged, and put the burden on the prosecution to prove the guilt of the accused. It also involves the maintenance of a position in which the witness called or re- examined is not for the strengthening of the case of the prosecution or re-enforcing the defence of the accused. In our adversary system of the administration of criminal justice, the accused person is entitled to the benefit of any doubt created in the case against him, and deserves at the close of the evidence of the prosecution to be discharged from the case being made against him. He is not required generally to prove his innocence.

It is only necessary in each case for the trial judge to call or recall a witness to clear any doubts arising from the evidence of a witness or issues raised in the case of either the prosecution or the defence where this expedient is essential to the just decision of the case before him. See Rex v. Edem & Ors. 9 WA.C.A. 25. In any case such witnesses should not be called if the evidence will result in injustice to the accused – See R. v. Egwuatu (1940) 6 W.A.C.A. 79 Horvat v. Police 20 N.L.R. 52, Elukolem v. I.G. of Police 14 WA.C.A. 161, Commissioner of Police v. Olatilewa (1958) WR.N.L.R. 200 See Onuoha v. The State (supra).

The provisions of section 237(1) enables the trial Magistrate or judge to summon any person as a witness even though not summoned as a witness by the prosecutor or the accused, or recall any witness who has already testified, if the evidence of such person appears to him to be essential to the just decision of the case. A careful reading of the section discloses that it is in two parts. The first part which is purely discretionary, from the use of the precatory word “may” enables the court to (a) summon anyone as a witness, or (b) call as a witness any person in attendance though not so summoned. The second part which is provided for in subsection 2 of the section is by the use of the word “shall” mandatory. The court after examining and allowing the prosecutor or complainant to examine any person so summoned as a witness, it is mandatory to allow the prosecutor or the accused to examine such witness. In Bala & Ibrahim v. Commissioner of Police (1973) 1 N.M.L.R. 61, the court relied on the interpretation of sections 150 of the Kenya Criminal Procedure Code, which are in pari material with section 237 of the Criminal Procedure Code.

Construing section 151 of the Tanzania Criminal Procedure Code in Juma Ali v. Republic (1964) E.A. at p.462, Windham C.J. said,

“The test to be applied in deciding whether or not a witness was properly called by a court after the close of the defence is not the test applied in England, that is to say, that the calling of such a witness should be limited to something which has arisen ex-improviso which no human ingenuity could foresee. The position in Tanganyika, is in our opinion, that under the first part of section 151 the court has a general discretionary power to call or recall witnesses, a power which must be exercised judicially and reasonably and not in a way likely to cause prejudice to the accused. Under the second part of the section, once the court forms the opinion that certain evidence is essential to the just decision of the case, the court is under a duty to call a witness or witnesses to give that evidence, whatever its effect is likely to be.”

The provisions of section 150 of the Kenya Criminal Procedure Code was construed by Sir John Ainly C.J. in Malim v. R. (1964) E.A. 672 at p.676. He said:-

“In East Africa much learning in many conflicting cases has been expended on the interpretation of this section and of similar sections in the Procedure Codes of other East Africa territories. It is however a remarkably simple section, and means no doubt precisely what it says. It is the duty of the court inter alia, to recall and re-examine any person, at any stage of a trial, if his further evidence appear to it essential to just decision of the case.”

The same construction of section 150 of the Tanzania Criminal Procedure Code and 151, of the Kenya Criminal Procedure Code as in the East Africa cases cited in this judgment has been adopted in several decisions in this court. The most recent is Onuoha v. The State (supra).

In Onuoha v. The State (1989) 2 N.W.L.R. 26, this court construing section 200 of the Criminal Procedure Law of Eastern Region, which is similar to S.237(1) of the Criminal Procedure Code, has referred to the limitations in the exercise of the power to call witnesses suo motu. One of the limitations referred to is that before the exercise of the power the defence should have setup a case ex improviso which no human ingenuity can foresee.

I am unable to appreciate how much a condition can be read into the express words of section 200. It is conceded that that limitation is a principle of English common law applicable before the enactment of section 200 of the Criminal Procedure Ordinance – See R. v. Harris 28 Cox C. C. 432. The earlier Criminal Procedure Ordinance did not contain any section like section 200. It was introduced in the early cases of R. v. Edam & Ors. (1943) 9 W.A.C.A. 25, and the more recent cases of Agbaje v. Republic (1964) 1 All N. L.R. 295 at p.297, Abashe v. Police (1962) N.N.L.R. 79. It undoubtedly falls within the general concept of avoiding the miscarriage of justice. – See Akinfe v. The State (1988) 3 N.W.L.R. and eliminating all doubts of the guilt of the accused. Secondly, the trial judge should not exercise the power to call any witness merely to strengthen the case of the prosecution, supply a missing link in the case of the prosecution and to ensure the conviction of the accused. See R v. Egwuatu (1940) 6 W.A.C.A. 79; Ejukolem v. Police 14 W.A.C.A. 161. The Queen v. Aderogba (1960) 5 FS.C. Thirdly, after the parties have closed their case and addressed the court, a witness should only be called or recalled where the justice of the case so demand. This is the overriding principle governing the application of the provision.

Learned counsel to the appellant’s contention is that the court below is bound by the decision of this court in Onuoha v. The State (Supra) at p.38 and by affirming the judgment has ignored the binding decision. I shall now state so much of the facts of Onuoha v. State, as is necessary for my discussion of the principle.

The facts were that the four appellants were charged for murder contrary to section 319(1) of the Criminal Code, Cap. 30. The prosecution called its witnesses and closed its case. Each of the appellants also gave evidence in his own defence and closed his case. The learned judge thereafter suo motu called two witnesses. After a review of the evidence including those of the two witnesses called by him, the learned judge found appellants guilt of the offence charged, convicted them and sentenced them to death. The Court of Appeal dismissed their appeal and found that the evidence of the witnesses called by the trial judge suo motu were more in support of the appellants.

Appellants appealed further to this court where the appeal was allowed. This court contrary to the findings of the Court of Appeal held that the two witnesses “were called simply to strengthen the case of the prosecution. See Queen v. Aderogba (1960) 5 F.S.C. 212 at p.215. Such a course of action will work an injustice to the appellants and the discretion given to the court by section 200 C.PL. cannot be stretched that far:- Commissioner of Police v. Sanni Olatilewa (1958) W.R.N.L.R. 200 at p.202.”

The clarity of the reason adduced for allowing the appeal was most aptly expressed in the concurring judgment of Nnamani, J.S.C. when he said, at pp.41-42.

“It is, therefore, as if the learned trial judge decided to call these witnesses whose testimony would be adverse to the defence. If they failed to call Joel because they wished to establish their defence of alibi, was it the proper function of the trial judge to deny them that line of defence after they have closed their case? After all the prosecution could have called Joel and Nwege if they chose.

From all the use made by the learned trial judge of the evidence of Joel and Nwege, one cannot escape the conclusion that their evidence was used to destroy the defence, and to that extent beef up the prosecution’s case. That surety is not the purpose of section 200 of the Criminal Procedure Law. If there was a lingering doubt in his mind at the close of the case of the prosecution and the defence, that doubt ought to have been resolved in the appellant’s favour. To proceed to seek ways of strengthening the prosecution’s case instead, was improper and clearly occasioned a miscarriage of justice.”

It seems to me obvious that it is not merely the calling of the witnesses after the close of the defence which occasioned the miscarriage of justice; it is the use of their evidence to strengthen the case of the prosecution which was hitherto in doubt, and to destroy the defence of the appellants, which without such evidence would have remained unchallenged, a stratagem diametrically opposed to the fundamental principles of our adversary system of the administration of justice.

Now, in the instant appeal as in Onuoha v. The State, (supra) the two witnesses were called after the close of the case of the defence. It is however, significant that, unlike Onuoha v. The State (supra) their testimony did not touch on the commission of the offence. Each of them described his normal duties, probably to show that the accused has no authority to deal with the Water pipes subject matter of the charge. Hence even on the facts the instant case is distinguishable.

I shall now turn to the amendment of the charge and the effect on the conviction of appellant. The learned trial Magistrate had in exercise of powers under section 208 of the C.RC. amended the charge of Criminal breach of trust contrary to S.215 of the Penal Code to that of theft. Appellant pleaded to the charge and his counsel opted to adopt his address before the amendment of the charge.

It is crucial to observe that appellant was not convicted of the offence of Criminal breach of trust contrary to section 315 of the Penal Code which was the charge when the two additional witnesses were called by the trial magistrate suo motu. He was given opportunity to plead and defend the new charge of theft contrary to section 287 of the Penal Code after the amendment.

It is well settled that a new charge can be framed at any time before judgment is pronounced – See R. v. Kano & Anor 20 N.L.R. 32, Echeagu v. Commissioner of Police (1974) 2 S.C.55 at p.69 R. v. west 32 Cr. App. R. 152. This is the position in this case.

Finally, it is pertinent to mention that the evidence of the two witnesses PW12, PW13 called suo motu were not critically contributory to the offence of theft with which appellant was convicted.

Before these two witnesses were called to testify, the evidence before the court was that appellant was at the time of the alleged offence a Principal Stores Officer in the Bauchi State Water Board, owners of the water pipes he was subsequently convicted of stealing. There was evidence that, appellant without authority, re-moved the pipes from where they were and was about to take them out of the premises of the Water Board. He had already loaded them on a vehicle for that purpose and was at the gate of the premises of the Water Board when he was stopped on the intervention of security men. All the essential ingredients of theft were therefore complete.

The learned trial magistrate was mistaken and in error in assuming that the evidence of PW12 and PW13 were essential to the just decision of the charge of theft which was the case before the court for which appellant was convicted. Their evidence was clearly not necessary and added nothing to the evidence already before the court. Appellant could be convicted of theft without the evidence of PW12 and PW13. The evidence of PW. 12 and PW 13 did not therefore prejudice the defence of the appellant and therefore did not occasion a miscarriage of justice. – See Rex v. Asuquo Edem & Ors. 9 WA.C.A. 25, Commissioner of Police v. Sanni Olatilewa (1958) W.R.N.L.R. 220.

The Court of Appeal therefore was right in affirming the judgment of the Bauchi High Court in its appellate jurisdiction, dismissing the appeal of the appellant.

I dismissed the appeal on the 6th December, 1990 for the reasons I have given in this judgment.

OLATAWURA, J.S.C.: After reading the record of appeal, the briefs filed and after listening to the submissions of learned counsel for the appellant and the respondent on 6th December, 1990, I dismissed the appeal and indicated I would give my reasons today.

I had a preview of the reasons given by my learned brother, Belgore, J.S.C. I will, with respect, adopt them as my own. I have nothing more to add. The conviction and sentences passed by the trial court and affirmed by the lower court are hereby reaffirmed.

AKPATA, J.S.C.: On the 6th day of December 1990, I dismissed this appeal and indicated that I would give my reasons for so doing today.

I have been opportuned to read in draft the reasons for judgment preferred by my learned brother, Belgore, J.S.C. I agree with him and therefore adopt the reasons stated by him.

Appeal dismissed.

 

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