Audu Tanko Juwa Vs The State (1969) LLJR-SC

Audu Tanko Juwa Vs The State (1969)

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COKER, J.S.C.

On the 19th of September, 1968, the accused in Charge No. SO/3C/1968 was convicted by Bello, J., in the High Court of the North-Western State sitting at Minna of culpable homicide punishable with death and against that decision he has appealed to this Court.

The main point taken on this appeal is that the accused was prevented from calling evidence to support a defence of insanity and that the decision of the learned trial judge was in error in this respect and was so serious that this Court was asked to send the matter back for retrial.

This arose because no medical evidence was called at the preliminary investigation and the defence counsel only received the depositions on the morning of the trial and was not notified that the doctor was going to be called who in fact was the 1st prosecution witness.

Later in the trial when another doctor, who was called by the defence, was being cross-examined by state counsel for the prosecution he sought to tender a report which was in fact made not by him-self but by the 1st p.w. the doctor called by the prosecution, and on objection by defence counsel the state counsel did not seek further to put in the report.

After four further witnesses had been called by the defence the record reads- “Olanrewaju: I have no more witnesses to call but I would like to recall p.w.I for further cross-examination. Court: you know p.w.l has been released and has gone back to Kaduna. Olanrewaju: I did not know he was the doctor who examined accused until when d.w.I gave evidence. Court: What evidence is p.w.I going to say; Olanrewaju: P.W. 1 will say what he observed on accused; that accused was not normal. I have his report but it is not clear; the doctor was unable to conclude on the mental state of accused. Court: Why not put the doctor’s report under s.250 Criminal Procedure Code? Olanrewaju: Report is not conclusive, I want to examine the doctor, ask for adjournment. Court: No adjournment will be granted on ground that there is no fur-ther sessions here in Minna until early 1969, and this session ends today.

Further more I do not consider the further evidence of p.w.l on recall is essential to the just decision of this case. Counsel says the doctor will say that he examined accused and found him not normal: Application refused s.237 Criminal Procedure Code.” Now, it is the submission of Mr. Cole for the appellant that the learned trial judge was wrong to refuse the request of the defence to recall the first p.w. notwithstanding that this would cause a delay as there was not going to be another session of the High Court in Minna for some months and notwithstanding that the doctor had been released and had left Minna after giving evidence. In the interests of justice and in order to enable the defence to present the case for the accused properly it was in his submission essential to recall the 1st p.w. as the defence did not know till the prosecution sought to tender this report through the 1st d.w. that the 1st p.w. had examined the accused with a view to determining his mental state. The learned trial judge did not consider it “essential to the just decision of this case” to recall the 1st p.w. and according to the record he relied on section 237 of the Criminal Procedure Code.

The learned trial judge from the passage to which we have referred seems to have been advising the defence to put in a report under section 250 of the Criminal Procedure Code, but Mr. Cole submitted to us that section 250 did not cover a doctor’s report as that was confined to section 249.

In our view this is not the position. Section 249 is dealing with a deposition of a medi-cal officer or with a written report of a medical officer which in the words of section 249(3)(a) is:- “admitted in evidence for the purpose of proving the nature of any injuries received by such person or, where such person has died, the nature of the injuries received by such person and, where possible, the physical cause of his death”, but not for the purpose of proving anything else.

On the other hand section 250 reads:- “(1) Any document purporting to be a report under the hand of the Accountant-General or Director of Audit or any expert in bacteriology, physiology, biology, pathology, chemistry or other branch of scientific knowledge in the service of any Government of Nigeria upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Criminal Procedure Code may be used as evidence in any inquiry, trial or other proceeding under this Criminal Procedure Code.

(2) The court may if it appears desirable for the ends of justice summon any person making a report under subsection (1) to give evidence in person.” In our view section 250 would cover a report of a government doctor not coming within section 249(3)(a) as it would be a report of an expert in some “other body of scientific knowledge in the service of any Government of Nigeria.” Even so under section 250(2) the court can still summon the doctor “if it appears desirable for the ends of justice to do so.”

When there-fore, after the learned trial judge refused to allow the 1st p.w. to be recalled, the doctor’s certificate was put in as an exhibit we consider that this was quite in accordance with the provisions of section 250, but it did not alter the defence objection that they wished to cross-examine the doctor as the certificate did not assist the defence in the point as to insanity which they wished to raise. Mr. Cole further submitted that as the 1st p.w. had been at the court he was in attendance within the meaning of section 193(1) of the Criminal Procedure Code, and so the accused should have been allowed to call him.

We think in this context section 193(2) of the Criminal Procedure Code, which reads:- “If the accused wishes to call a witness who is not present in court and in respect of whom he has not given notice under section 174 and if the court is satisfied that the absence of witness is not due to any fault or neglect of the accused and that it is likely that such witness could if present give factual evidence the court may adjourn and take steps to compel the attendance of such witness.”is, apart from section 237, in fact more apposite and in the present matter we cannot see that it was due to any default of the accused that the 1st p.w. was not called by him or not asked questions in cross-examination on a report of which the defence was then not aware.

We said in regard to the calling of a witness, when a report by him had been admitted in evidence under section 249(3)(a), in ldirisu v. The State SC.445/1966 of the 20th of January, 1967:-  “We have come to the conclusion that the request of the appellant to call the doctor as a witness should have been granted. It is desirable that when a request is made by an accused person for the maker of a statement such as is now in point to be called as a witness such application should not be lightly refused.

A person standing trial is entitled to defend himself and to avail himself of all facilities provided by the law.

Section 249(3)(c) gives to such a person the right to have the maker of a report received in evidence by virtue of this section attend and give evidence in person in the Court where the accused person will at least have the opportunity of cross-examining him and where it is manifest from the disagreements over the written report that a chance of defending himself had been denied to the accused it would be difficult to resist the conclusion that a miscarriage of justice had occurred.”

In Nwokenta v. The State (1967) N.M.L.R. 178 we dealt with the case of R. v. Shorunke [1946] A.C. 316, to which Mr. Cole referred us in this appeal, when we said at page 179:- “The chief ground of appeal argued by Mr. Cole referred to the fact that after the case of the prosecution had been closed and the appellant had given evidence, defending counsel asked for and was refused `an opportunity to look for a psychiatrist’ to give evidence about the accused’s mental condition. It is apparent from the record that defending counsel had been instructed to appear for the appellant at least eight days before this application was made and we are not prepared to say that the judge made a wrong use of his discretion in refusing the application.

Mr. Cole referred to the case of Shorunke [1946] A.C. 316 but in that case the Judicial Committee, while upholding the right of an accused person to obtain a writ of sub-poena for a named witness, expressly pointed out that it was in the discretion of the court whether to grant an adjournment if the application was made unduly late. In R. v. Onyedire [1961] All N.L.R. 642, this Court refused to hold that an adjournment had been wrongly refused where it was not shown that the lateness of the application was due to any mistake or justified reason, and this applies a fortiori when defending counsel does not even know whether he can find a witness to testify in the sense he desires.

There was nothing in the evidence here to take defending counsel by surprise and if he needed more time to prepare the defence he should have applied for it before the trial started.” In the present appeal we think that the lateness of the application had a justified reason within the contemplation of what the Federal Supreme Court said in R. v. Onyedire [1961] All N.L.R. 642 applying Shorunke (supra) when it said at page 644:- “In the case of Shorunke v. The King their Lordships expressed the view that it was not within the province of the trial judge in determin-ing whether or not he should allow witnesses to be summoned on behalf of the accused, to take into consideration the probability of the witness being able to give material evidence, though their Lordships added that “in any case the Court can always protect itself by issuing process, but if convinced that the lateness of the application is not due to mistake or justified reason it can refuse to adjourn the trial.”

As I have said, nothing has been put forward as showing that the trial Judge in refusing to adjourn the trial exercised his discretion wrongly, or to put in in the words of their Lordships in Shorunke v. The King, it has not been shown that the lateness of the application made to the trial judge for adjournment was due to any mistake or justified reason.”

It follows therefore that in our view the learned judge was in error in refusing to permit the 1st p.w. to be recalled when his evidence was likely to be so material to the defence case, and that being so we see no alternative to quashing the conviction and sentence and ordering a re-trial. We would however wish to advert briefly to one other matter which came to our attention from the record. The learned trial judge in the course of the trial gave a ruling that section 126(2) of the Criminal Procedure Code did not have to be complied with as it was inconsistent with the Criminal Procedure Code (Statements to Police Officers) Rules, 1960.

We have not heard argument on this point and so must reserve our final decision till it is raised, but as this may be of considerable importance in another case we wish to indicate that prima facie our view is that section 126(2) is not inconsistent with the Criminal Procedure Code (Statements to Police Officers) Rules 1960 and that they should therefore be read together so that in the circumstances postulated by section 126(1) it would be necessary to comply with Section 126(2) as well as with the Criminal Procedure Code (Statements to Police Officers), Rules, 1960.

We accordingly allow this appeal, set aside the conviction for culpable homicide punishable with death and sentence of death and order that the accused be retried before another judge in the High Court of the North-Western State. Pending the retrial the accused will remain in custody.


Other Citation: (1969) LCN/1677(SC)

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