LEGAL IDEAS FORUM

DANIEL V. F.R.N.: On whether an accused can be compelled to testify first before other defence witnesses, where the accused intends to testify in his case. An insight into the decision of the Court of Appeal therein.

Citation: (2021) 6 NWLR PT. 1771 AT 20.

PARTIES IN FULL:
OTUNBA JUSTUS OLUGBENGA DANIEL

V.

FEDERAL REPUBLIC OF NIGERIA

Courtesy: Moruff O. Balogun Esq.

Summary of fact:
The appellant was the Governor of Ogun State, Nigeria from 29 May 2003 to 29th May 2011. At the end of his tenure and following some petitions to the Economic and Financial Crimes Commission (EFCC), he was arraigned at the High Court of Ogun State, Abeokuta on a thirty-two count charge. The charge alleged several infringements of the Criminal Laws of Ogun State 2006, the Economic and Financial Crimes Act 2004, and the Corrupt Practices and Other Related Offences Act 2000.

At the close of the respondent’s case, the appellant made a no-case submission. The trial court upheld the submission on fifteen of the counts while it held that the prosecution had made out a prima facie case on seventeen of the counts. Therefore, the appellant was called upon to enter his defence.

However, when the appellant was to open his defence by calling the first witness, the respondent moved that the appellant must indicate whether or not he was going to testify in his own defence and that if he was going to testify, he must give his evidence before calling the other witnesses. The appellant opposed the position taken by the respondent on the ground that such a procedure would violate his constitutional right to be silent and that since the respondent had a free hand to call its witnesses in the order it deemed fit, the appellant was entitled to call his witnesses on the same conditions as the prosecution.

After considering the submissions of counsel, trial court in its ruling held that the order of calling witnesses is a matter of procedure by virtue of section 210 of the Evidence Act 2011 and that in the Criminal Procedure Law of Ogun State, 2006, which governed the trial of the case, there is no general procedure regulating the order in which witnesses are to be produced. It invoked the provision of section 363 of the Criminal Procedure Law of Ogun State 2006 allowing it to apply the practice and procedure in England and held that the appellant must first testify before other witnesses save for formal witnesses who were at liberty to testify before the appellant. Aggrieved by the ruling, the appellant appealed to the Court of Appeal.

In determining the appeal, the Court of Appeal considered the provisions of sections 363 of the Criminal Procedure Law of Ogun State, 2006, section 210 of the Evidence Act, 2011 and section 36(6)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which respectively state thus:

Section 363 of the Criminal Procedure Law of Ogun State, 2006:
“363: The procedure and practice for the time being in force of the High Court of Justice in England in criminal trials shall apply to trials in the High Court in so far as this Law has not specifically made provision thereof. “

Section 210 of the Evidence Act, 2011:
210: The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, at the discretion of the court.”

Section 36(6)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended):
“36(6): Every person who is charged with a criminal offence shall be entitled to:

(d): Examine, in person or by his legal practitioner, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution.”

Held: Unanimously allowing the appeal.

The following issues were raised and determined by the Court of Appeal.

On whether accused can be compelled to testify first before other defence witnesses where he intends to testify in his case:

It will be a derogation from the right guaranteed by section 36(6)(d) of the 1999 Constitution (as amended) to insist that, if an accused intends to testify in his case, he must testify first before any other witness he may decide to call, other than formal witnesses. If a trial court enquires from an accused whether or not he intends to call evidence, it may or may not breach the fundamental right of such accused person not to be compelled to give evidence at his trial. However, if the purpose of the enquiry is to put the accused person in a position where he would have no choice than to testify at the trial, it would amount to a breach of the right guaranteed by section 36(11) of the 1999 Constitution.

Per TSAMMANI, J.C.A.:
“On the whole therefore I am of the firm view that the learned trial Judge erred in holding that, if the appellant intends to testify or give evidence at the trial, he has to testify first before he can call witnesses other than formal witnesses. Therefore the decision of the trial court to import into the proceedings before it, the practice and procedure in the High Court of Justice, England is in breach of
Section 210 of the Evidence Act and 36(6(d) of the Constitution of the Federal Republic of Nigeria, 1999. The appellant therefore has the right to obtain the attendance and carry out the examination of witnesses to testify on his behalf on the same conditions as applied to the prosecution, In other words, the appellant and/or his counsel are at liberty to produce and examine their witnesses in the order they deem fit.”

On right of accused to conduct his case in way and matter he deems fit:

In the adversarial system of jurisprudence, especially in criminal law, the disputants are opponents contesting their cases before an umpire, the judge. Each is at liberty to formulate his strategy within the limits of the law. This is not the same as the inquisitorial system where the umpire probes the party. Section 36(6)(d) of 1999 Constitution (as amended) is an illustration of the adversary system Nigeria operates. In a criminal trial, the accused person and his lawyer are “dominis litis” and shall determine the course of the defence without interference whatsoever. Just as they cannot dictate to the prosecution the order of calling the witnesses, the prosecution cannot dictate the order for the accused to call his witnesses. An accused person is entitled to conduct his case in a way and manner he deems fit.

On whether section 363 of Criminal Procedure Law of Ogun State 2006, is in conflict with section 210 of Evidence Act 2011, on procedure for the order of production and examination of witnesses in criminal trial:

There is a difference or conflict between section 363 of the Criminal Procedure Law of Ogun State, 2006 and section 210 of the Evidence Act 2011, as to the procedure to follow, in the absence of any stipulation, in the order for the production and examination of witnesses. While the Criminal Procedure Law of Ogun State prescribes the practice and procedure for the time being in force in the High Court of England, section 210 of the Evidence Act prescribes that the procedure to be followed, in the absence of any such law, will be at the discretion of the court.

On whether Criminal Procedure Law of Ogun State 2006 provides for order of production and examination of witnesses in criminal trial:

The Criminal Procedure Law of Ogun State, 2006 does not make any provision on the order of calling and examination of witnesses in criminal trials. The production of evidence through the calling and examination of witnesses is a matter of evidence and such is governed by sections 205 to 207 of the Evidence Act, 2011. However, there is no specific provision in the Act which prescribes the order in which witnesses are to be produced and examined.
But by virtue of section 210 of the Evidence Act, 2011, the order in which witnesses are to be produced and examined shall be regulated by the law and practice for the time being in force relating to civil and criminal procedure respectively, and, in the absence of any such law, at the discretion of the court.

Per TSAMMANI, J.C.A. :
“Now, section 210 of the Evidence Act which is the substantive law on the order in which witnesses are to be produced and examined, has delegated such power to the law and practice for the time being in force relating to civil and criminal procedure. That in the absence of such law, the matter shall be determined at the discretion of the court. It is clear to me that, though the learned trial Judge was cognizant of the discretion of the court on the matter, he preferred to be guided by the law and practice in England as laid down in the case of R. v Smith (supra). I am of the view that, in so doing, the learned trial Judge erred in the face of the clear and unambiguous prescription in section 210 of the Evidence Act, 2011. To determine the issue, the learned trial Judge, should have, having found (rightly so), that the Criminal Procedure Law of Ogun State is silent on the order of production and examination of witnesses, determined the matter at his discretion.”

On whether and when trial court can apply practice and procedure in England in respect of order of production and examination of witnesses in criminal trial:

It is desirable that English practice should be followed when an accused person intends both to give evidence himself and to call witness as to fact, his evidence is normally taken before that of his witnesses. Where an accused person is to give evidence, he gives evidence before other witnesses who may be called on his behalf. There are rare exceptions, such as when a formal witness or a witness about whom there is no controversy is interposed before the accused person with the consent of the court in special circumstances. That was the position in England as at the date when R v. Smith (Joan) 2 All ER 115 was decided.

However, nothing shows that the procedure still obtains in England as at today. This is because courts in Nigeria can only apply the law on practice and procedure in England for the time being in force. By virtue of section 363 of the Criminal Procedure Law of Ogun State 2006, the procedure and practice for the time being in force of the High Court of Justice in England in criminal trials shall apply to trials in the High Court in so far as the Law has not specifically made provision thereof. The Law enjoins a trial court to apply the procedure and practice for the time being in force in the High Court of Justice in England, where the Law has not made provision for it.

On validity of section 303 of Criminal Procedure Law of Ogun State, 2006:

The production of evidence through witnesses is a matter left for the law of evidence. Evidence has been assigned to the exclusive legislative list by virtue of its being item 23 in Part 1 of the Second Schedule to the 1999 Constitution. When a matter is within the exclusive legislative list of the Constitution, only the National Assembly is competent to legislate thereon. Thus, where a State legislature purports to legislate on such item, such Law will be null and void to the extent of its inconsistency with the law made by the National Assembly in the exercise of its exclusive legislative powers. Thus, by virtue of section 4(5) of the Constitution, if any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.

Therefore, the extent to which the Criminal Procedure Law of Ogun State, 2016, purports to permit the court to invoke the practice and procedure in the High Court of Justice England as regards the order of production and examination of witnesses, is void to the extent that it is inconsistent with section 210 of the Evidence Act, 2011.

On right of accused to call and examine witnesses on same condition as prosecution:

In the exercise of its discretion on the order in which witnesses are to be produced and examined, a trial court must be guided by section 36(6)(d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). the section provides: “every person who is charged with a criminal offence shall be entitled to examine, in person or by his legal practitioner, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution.” The constitutional right created here enures in favour of the accused or defendant in all criminal trials. Therefore, the accused is entitled to conduct his case in a way and manner he deems fit, and on the same conditions exercised by the prosecution.

The exercise of that right is not limited to the examination of witnesses called by the prosecution but includes the right to obtain the attendance of witnesses to testify on his behalf.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414.

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