Criminal Law-Homicide-Murder-Application by accused to re-call witness to testify as to state of health-Refusal by trial Judge on the ground that evidence to be tendered was non-essential to just decision of case-Whether proper-Criminal Procedure Act (W.N.) section 200.

Appeal from the courts of Appeal (West).

HELD:

(1)     It is a well established principle of law that a judge has in a criminal trial a discretionary power, with which a Court of Appeal cannot interfere, unless it appear that an injustice has thereby resulted, of re-calling witnesses at any stage of the trial and of putting such questions to them as the exigencies of justice require.

(2)     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.

(3)     The Supreme Court disagreed with the Court of Appeal that in the circumstance of the present case the question as to whether or not the appellant was at the material time enjoying good health was irrelevant to a just decision of the case. It would appear that the Court of Appeal did not adequately direct its mind to the point of non-direction on the part of the trial Judge when he stated that from his observation the appellant gave evidence before him in the most rational manner. It was obvious that when considering the issue the trial Judge was thinking not of the state of the mind of appellant at the time when the offence was alleged to have been committed but at the time when the appellant was being tried in the course of which he had to give evidence. The court thereby failed to direct its mind to the state of the mind of the appellant at the time of the commission of the alleged offence, and to make due allowance for the probability of the occurrence of lucid interval in the event of the defence of insanity.

(4)     While it was true that throughout the trial there was no suggestion by the defence that the appellant ever suffered from insanity or any mental infirmity it was quite clear on the evidence that the question as to the condition of the appellant's health at the time of the commission of the offence had arisen ex improvise. It was introduced by Raifu Ayinla-a witness called by the court. It was in the course of cross-examination that Rafiu Ayinla for the first time revealed that the appellant was sick when the incident occurred, that he had fever; and that he had arrived naked at Ede from Ogbagba the morning after the incident. That evidence was sufficient to have put the court on enquiry. Surely it would be highly improbably for a normal person to have travelled naked from Ogba to Ede.

(5)     It was not open to the trial Judge and least of all the 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, the defence of the appellant was not adequately investigated and by refusing to recall Salawu Oyeleye (PW2) on the application of Counsel for the appellant, the trial Judge had deprived the appellant of the opportunity of placing the whole of his defence before the court. Therefore this ground of appeal must succeed.

Appeal allowed: case sent back to High Court for trial de novo by another judge.

Cases referred to:

Rex v. Remnant (1807) Russ and Rye 136 C.C.R.

King v. Sullivan (1923) 1 K.B. 47 C.A.

Rex v. Asuquo Edem and ors. 9 W.A.C.A. 25.

Shorunke v. The King (1946) A.C. 316.

Rex v. Akpan Udo Modem and anor. 12 W.A.C.A. 224.

Law referred to:

Criminal Procedure Act (W.N.) section 200.

APPEAL from the Court of Appeal (West).

Cole for the appellant.

Ayorinde (Senior State Counsel) for the respondent.

Udoma, J.S.C. (delivering the judgment of the court)-The appellant was tried and convicted of the murder of one Ramotu Abeo by Fakayode, J. in the High Court, Oshogbo on 22nd May, 1969. His appeal to the Western State Court of Appeal was dismissed. He now appeals to this Court on two grounds: namely:-

"(i) The appeal court erred by finding that the trial Court was right in refusing the application of the appellant to call a witness on the state of his (appellant's) health. The said lower court having erred by assuming that the evidence sought to be tendered was 'non-essential to the just decision of this case'; and

(ii) by the failure of the court of trial to grant the appellant's application to call a witness, the appellant was deprived of the opportunity of putting the whole of his defence to the court."

At the trial the evidence given by the principal witnesses for the prosecution Aminu Oyekanmi (PW1), Salawu Oyeleye (PW2), Ayisatu Aduke (PW3) and Rabiatu Laroyeke (PW5) was to the effect that they, the deceased and the appellant all lived in Ogbagba Village and were inmates of the same house each occupying a separate room; that on the fateful night in which the deceased was murdered they all, including the deceased and the appellant, had, after supper, retired to their respective rooms to sleep. In the middle of the night the deceased was heard to cry "Sule killed me". Attracted by the cry they all came out and saw the deceased lying dead in a pool of blood in the parlour of the house at the door leading into the appellant's room. The deceased had a wound on her back. The appellant was not in his room then nor was he seen in the parlour. The matter was reported to the police at Ede and later at Oshogbo. The appellant was later seen with the police at the police station, Ede.

The defence of the appellant was an alibi. He testified that he knew nothing concerning the death of the deceased; that he had no previous quarrel with the deceased; that in the night in question he was at Ede and that he had slept not at Ogbagba Village but at Obara compound at Ede with his relative, a carpenter by name Raifu Ayinla; and that he was arrested by the police at Ede.

In answer to a question by the court, the appellant stated that he wanted Raifu Ayinla to be called to give evidence. Thereupon the learned trial Judge made the following notes:-

"Court: Case adjourned till 10-4-69 for defence. Subpoena to issue to Raifu, carpenter of Bara compound, Ede to come and give evidence about the accused's whereabouts on the night of the incident. Accused must be given facility by the prison authorities to act as pointer to police when serving subpoena.

When the trial resumed on Thursday, 10th April, 1969, the notes made by the learned trial Judge read as follows:-"The accused is present. Bakre for the prosecution. Fatoki for the accused.

Court to accused: Is this the man you called Raifu, Carpenter?

Accused: Yes, he is.

Witness called by Court:-

Whereupon Raifu Ayinla, having been duly sworn, gave evidence as a witness called by the court. He was cross-examined by both the Counsel for the prosecution and the Counsel for the defence and re-examined by the court. In answer to a question put to him by the Counsel for the defence, Raifu Ayinla said:-

"The accused was sick before this incident occurred. He had fever."

Under cross-examination by the court he said:-

"The accused did not sleep in Gbara compound, Ede the night of the incident. But he came to Gbara compound early in the morning of the day following. He came nakedly. Then the police came to search for him and took him away."

On the conclusion of Raifu Ayinla's evidence, Counsel for the appellant immediately applied, under section 200 of the Criminal Procedure Act, to have Salawu Oyeleye (PW2), described as the father of the appellant, who had already given evidence for the prosecution, to be recalled for cross-examination as to the condition of the health of the appellant at the material time when the crime was alleged to have been committed. The application was opposed by Counsel for the respondent and refused by the court.

In rejecting the application the learned trial Judge said inter alia:-

"I do not know what is meant by good health. Certainly this is not a matter of insanity because the accused gave evidence before me in the most rational manner. Power to recall a witness will be exercised if it is necessary for the ends of justice, e.g. where an important issue crops up unforseably.

If it was true that the condition of the accused's health was of some importance it would have been raised under cross-examination or by the accused himself. The application is rejected as the evidence sought by it is in my view non-essential to the just decision of this case."

Thereafter, although it is nowhere recorded in the proceedings that the appellant had closed his case, Counsel addressed the court and judgment was reserved. On 22nd May, 1969 judgment was delivered and the appellant was found guilty and convicted. He appealed to the Western State Court of Appeal against his conviction on the principal ground that-

"the refusal by the learned trial Judge of the application of the defence Counsel to recall certain prosecution witnesses is wrong and it is not a judicial exercise of the court's discretion in the matter."

The appeal was dismissed.

In dismissing the appeal, the Western State Court of Appeal held that the learned trial Judge was right in refusing the appellant's application to recall Salawu Oyeleye (PW2) because in its view-

"The question whether the appellant was at the material time enjoying good health is quite irrelevant to the proper trial of the case"; since "throughout the case there was no suggestion by the defence that the appellant ever suffered from insanity or any mental infirmity."

With respect we do not agree with the Court of Appeal that in the circumstances of the present case the question as to whether or not the appellant was at the material time enjoying good health was irrelevant to a just decision of the case. It would appear that the Court of Appeal did not adequately direct its mind to the point of non-direction on the part of the learned trial Judge when he stated that from his observation the appellant gave evidence before him in the most rational manner. It is obvious that when considering the issue the learned trial Judge was thinking not of the state of the mind of the appellant at the time when the offence is alleged to have been committed but at the time when the appellant was being tried in the course of which he had to give evidence. The court thereby failed to direct its mind to the state of the mind of the appellant at the time of the commission of the alleged offence, and to make due allowance for the probability of the occurrence of lucid interval in the event of the defence of insanity.

While it is true that throughout the trial, there was no suggestion by the defence that the appellant ever suffered from insanity or any mental infirmity, it is quite clear on the evidence that the question as to the condition of the appellant's health at the time of the commission of the offence had arisen ex improvise. It was introduced by Raifu Ayinla-a witness who was called by the court. It was in the course of cross-examination that Raifu Ayinla for the first time revealed that the appellant was sick when the incident occurred; that he had fever; and that he had arrived naked at Ede from Ogbagba the morning after the incident. That evidence was sufficient, in our view, to have put the court on enquiry. Surely it would be highly improbably for a normal person to have travelled naked from Ogbagba to Ede.

We think this is a proper case in which the learned trial Judge should have exercised his powers under section 200 of the Criminal Procedure Act, the provisions of which are as follows:-

"The court, at any stage of the trial, inquiry or other proceedings 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."

Further it is a well-established principle of law that a judge has in criminal trial a discretionary power, with which a Court of Appeal cannot interfere, unless it appear that an injustice has thereby resulted, of recalling witnesses at any stage of the trial and of putting such questions to them as the exigencies of justice require. That principle was enunciated in Rex v. Remnant [1807] Ruse and Rye, 136 C.C.R. and followed by the court of Criminal Appeal in England in the King v. Sullivan, [1923] 1 K.B. 47 C.A. See also Rex v. Asuquo Edem and others 9 W.A.C.A. 25.

We think that the learned trial Judge fell into a fundamental error in holding that the evidence to be given by Salawu Qyeleye (PW2) was not essential to a just decision of the case. 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] A.C. 316. It was subsequently followed by the West African Court of Appeal in Rex v Akpan Udo Modem and another 12 W.A.C.A. 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. This ground of appeal therefore succeeds.