➥ CASE SUMMARY OF:
Sale Ado (Alias Dangajere) V. The State (SC.139/2013, 7 April 2017)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Calling of additional witnesses;
Circumstantial evidence.
➥ CASE FACT/HISTORY
The Kaduna Division of the Court of Appeal, hereinafter referred to as the lower court, on dismissing the appellant’s appeal against his conviction and sentence for conspiracy, robbery and culpable homicide by the Kano State High Court, the trial court, affirmed the judgment of the latter delivered on 27 July 2010. Dissatisfied with the judgment of the lower court dated 14 March 2013, Sale Ado (Alias Dangajere), the convict, has appealed to this court on ten grounds.
➥ ISSUE(S)
I. Whether the learned justices of the Court of Appeal were right when they affirmed the procedure embarked upon by the prosecution at the trial?
II. Whether the learned justices of the Court of Appeal were right in affirming the trial court’s decisions that the prosecution had proved their case beyond reasonable doubt and affirmed the conviction and sentence of the appellant?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[APPELLANT DID NOT APPEAL AGAINST THE FURTHER CALLING OF THE WITNESSES AFTER CLOSE OF RESPONDENT CASE
‘It is evident from the record of proceedings, see page 27 thereat, that the respondent was, after series of futile adjournments to enable it call all it witnesses, forced by the trial court to close its case. This was on 2 July 2009. The appellant and his co-accused testified and closed their defence on 29 September 2009 from which date the case was adjourned to 10 November 2009 for judgment. By 28 January 2010 when the case re-surfaced, with no clue as to what occurred from the date the judgment was to have been delivered, the respondent had filed an application for leave to call its outstanding witnesses. The application was granted on 2 February 2010. Thus PW3, PW4, PW5, PW6 and PW7 testified, see pages 32 to 42, between 25 February 2010 and 21 April 2010, consequent upon the leave, the trial court granted the respondent. Appellant’s notice of appeal to the lower court against the trial court’s judgment dated 18 April 2011 was filed on 19 April 2011. None of the four grounds in the said notice challenged the trial court’s order granting leave to the respondent to call its remaining witnesses after the closure of appellant’s defence. Learned respondent counsel is on a firm ground that judgment of a court of competent jurisdiction subsists until set aside on appeal. Indeed, the appellant having not appealed against that order of the trial court is deemed to have accepted same as binding. See Chuba Chukwuogor and Ors. v. Chukwuma Chukwuogor and Ors. (2006) 7 NWLR (Pt. 979) 302, (2007) All FWLR (Pt. 349) 1154 and Victor J. Rossek v. African Continental Bank Ltd and Ors. (1993) 8 NWLR (Pt. 312) 382, (1993) LPELR 2955 (SC).’
WITNESSES CAN STILL TESTIFY EVEN AFTER CLOSE OF CASE
‘Learned appellant’s counsel must be under serious misapprehension of what this court actually decided in the cases he cites and relies on. It has never been the decision of this court that prosecution witnesses should never be called or recalled, either by the court suo motu or at the instance of the prosecution, after the prosecution and nay any of the parties before the court, or the defence has closed their respective cases. The cases the appellant cites and relies upon in support of his contention, certainly, do not support his cause. From the case of Harvot v. Police 20 NLR 53, this court cited with approva l in De nloy e v. Me dic al and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306, (1968) NSCC 260 leading and not limited to Onuoha v. State (supra), this court’s decision is to the effect that, as a general principle of law and practice in our adversarial system, after the close of a case, no further evidence ought ordinarily be given by any of the parties. It is not the decision of this court that, in all situations, further evidence may not be given by any of the parties after the closure of defence. The court in Godwin Chukwuma v. Federal Republic of Nigeria (2011) All FWLR (Pt. 585) 231, (2011) 13 NWLR (Pt. 1264) 391, (2011) LPELR- 863 (SC) per my learned brother, I. T. Muhammad JSC asked the “pertinent questions” to which the trial court must find “potent” answers before allowing any of the parties to call further evidence after the case had been closed and date fixed for judgment thus: “(I) Whether a trial court can re-open a case after it has been closed. (II) If it can, what are the rights open to the other party (the appellant in this case)? (III) Has the trial court in this case afforded the (accused) appellant such rights?” In the instant case the witnesses testified pursuant to respondent’s application for leave to call them by virtue of section 36(1)(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) and section 273 of the Criminal Procedure Code.’
‘A reading of the foregoing clear and unambiguous provision shows the enormous powers the trial court enjoys in summoning witnesses at any stage of its proceedings, whether suo motu or at the instance of any of the parties thereto provided doing same does not overreach any of the parties to the proceedings. The section is in consonance with section 36 (1) (2)(a) of the 1999 Constitution and both provisions not only empower but place the duty on the trial court, given the facts of the instant case, to grant the respondent leave to call and lead all material evidence that would in one way or another help in the determination of the matter at hand. See Abdulkadir Gusau v. C.O.P (1968) NMLR 329; Adaje v. State (1979) 6-9 SC 18 and Opayemi v. State (1985) 2 NWLR (Pt. 5) 101, (1985) 2 NSCC 291 at 927. The appellant who, from the record, did not object to the grant of the leave to call and had cross-examined all the witnesses the respondent called in furtherance of the leave obtained from the court, the lower court is right, cannot be heard to say that the pr oce dur e had in a nyway either we ake ned his ca se or strengthened that of the respondent. The law requires that the charge against the appellant be proved by evidence. Where conviction is secured based on lawful evidence and the appellant, as required by law, has had the opportunity of cross-examining the witnesses, neither the proceedings nor the conviction therefrom would be adjudged perverse. See Manawa Ogbodu v. State (1987) 2 NWLR (Pt. 54) 20, (1987) 3 SC 497, (1987) 1 NSCC 429 at 437 and Sunday v. State (2010) All FWLR (Pt. 548) 874, (2010) 18 NWLR (Pt. 1224) 223. I so hold.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[‘The appellant is convicted for conspiracy, robbery and culpable homicide. The respondent through PW3, PW4, PW5 and PW6 provided evidence of an unbroken chain of circumstances that makes the inference of appellant’s guilt in all the three heads of charge irrestistible and compulsive: the deceased’s retort that he was being slain as his guinea-fowls were being stolen and his call for aid; the shoes, facing cap and stick all positively identified to belong to appellant; the freshfootsteps from the scene of crime leading to and ending at appellant’s abode. These, it is logical to presume, are not coincidental. The two courts are entitled to infer from all these pieces of evidence, in the absence of any explanation to the contrary, that the appellant and co-traveller are guilty of the offences. In evaluating the evidence led through the witnesses, including the appellant, the trial court demonstrated the advantage it had of seeing and observing them while testifying. Neither the lower court nor this court shares the same advantage, the non-availability of which disentitles either of the two from interfering with the trial court’s findings arrived at not only on the basis of the hard evidence put before the court but on the basis of the credibility of the witnesses as well. The trial court’s findings not being perverse, its affirmation by the lower court cannot beany different. It is not the practice of this court to interfere with these findings: Bashaya v. State (1998) 5 NWLR (Pt. 550) 351, LPELR-755 (SC) and Ubani v. State (2003) 18 NWLR (Pt. 851) 224, (2004) All FWLR (Pt. 191) 1533.’
PER EKO JSC: ‘The alleged offences were committed in a small community where every body knows what belongs to the other. The evidence of the PW3 and PW4 linking the appellant to exhibits A-A3, respectively the sandals and face cap (exhibits A and A2) belonging to the 1st accused and the trap (exhibit A3) belonging to the 2nd accused were undiscredited by cross-examination. The evidence to the effect that footsteps from the scene of crime to the house of the 1st accused ended at the house of the 1st accused was also unscathed. The PW6 also testified that on the fateful day, the 2nd accused was emotionally agitated, and that he was going about saying that he had never seen such a horrible thing as he saw that day where a human being was being slaughtered like a ram was also not discredited. The only case of a human being slaughtered like a ram that day in the community was the alleged killing or slaughter of the deceased accused persons were charge for. When the 2nd accused, the appellant , testified he made no effort to deny the statement credited to him nor did he explain what he meant by saying he had never seen a human being slaughtered like a ram. He also did not explain why his trap was found at the locus criminis , where the birds were stolen and the owner slaughtered. There has been no miscarriage of justice. The appellant has not shown any. There is no substance in this appeal. The appeal, lacking in merits, is hereby dismissed. The decision of the Court of Appeal is hereby affirmed.’]
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.
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✓ DECISION:
‘It is for the foregoing that both issues for the determination of the appeal are resolved against the appellant. On the whole , the unmeritorious appeal is hereby dismissed. The trial court’s judgment by the lower court is hereby further affirmed.’
➥ FURTHER DICTA:
⦿ CASES CANNOT BE AUTHORITY FOR WHAT THEY DID NOT DECIDE
Cases cannot be authorities for what they did not decide. A decided case furnishes a basis for the determination of a later case only if the facts or issues in the subsequent case are similar to those in the earlier case. Thus a lower court would not be bound to follow decisions of superior courts cited before it which decisions were not informed by similar facts or issuesthe lower court subsequently confronts. See Tejumade A. Clement and Anor. v. Bridget J. Iwuanyanwu and Anor. (1989) 3 NWLR (Pt. 107) 39; Babatunde and Anor. v. Olatunji and Anor. (2000) FWLR (Pt. 5) 874, (2000) 2 NWLR (Pt. 646) 557. — Muhammad JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Musa Dattijo Muhammad JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Nuraini Jimoh Esq.
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
