Sgt. Alfred Kajawa V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

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

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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

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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

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