Joel Omodara V. The State (2008)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

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:-