IN THE HIGH COURT OF IMO STATE
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
HIGH COURT 10
ON THE 11TH DAY OF OCTOBER 2018
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO.:- HOW/27C/2017
BETWEEN
THE STATE
V.
OKECHI UGWULOR,
JOHN NWAKWO,
IKEDI NWAIWU,
IFEANYI NWANKWO
RULING
The State brought application for additional evidence dated 2/5/18 and filed 3/5/18 the Prosecution prays the court for an order for the additional evidence of Sgt Wills Stephen of Anti Kidnapping Squad, Imo State Police Command; Messrs Godson Ibeabuchi Chinaka and Michael Azuonwu.
The nature of the additional evidence is stated to be:
To tender the call logs of Okechi Ugulor; John Nwankwo and Ikedi Nwaiwu from MTN Limited in connection to MSIDN subscribers Nos. 2348108836717; 2347069639197 and 2349038533434 between the 15th December, 2016 to 2nd January, 2017 (copies attached herein) which was requested by the Nigerian Police Force, Imo State Police Command in the course of investigation and witness statement of Messrs Godson I Chinaka and Michael Azuonwu
The counsel to the Accused persons opposed the application for additional witness.
According to Onuegbu Esq., they are not opposed to tendering the document called MTN call log because as a minister of justice in this temple, the evidence of PW1 and PW2 already mentioned the MTN call log. It is also contained in the information filed. They are however opposed to the calling of Sergeant Will Stephen because he is not the PW2, who led the foundation for the document. Secondly, he is not listed as witness in the list of witnesses. The Sergeant Wills from the record filed was a prosecutor when the accused persons were arraigned at the Magistrate. See page 7 of information filed. In summary, the State can only bring this document by recalling the witness who led the foundation for the document which is proposed to come as additional evidence.
They are also opposed to the application to call Messrs. Ibeawuchi Chinaka and Michael Azuonwu in this matter. Because these two gentlemen from information filed were ab initio not listed as witnesses and the report of the investigation as tendered by the PW2 did not mention their names as persons who made statement to the police at the time this matter was investigated. The PW1, PW2 in their evidence in court did not mention them. Because they did not mention their names and statement in the case ab initio shows it was an afterthought. The two documents attached as their statements conclusively are contrived by the prosecution to provide answers to fill in the gaping hole in the case of prosecution so far by attempting to take the defence by surprise.
It is his contention that the accused person while under police detention never confronted the men now sought to be introduced into this case through this application. Further PW2 testified that Sergeant Ehigie who took the statement of the Accused person and authored police report is dead and he only came to tender documents made by him because he can identify his writing. The report of investigation tendered already did not disclose the names of the two proposed additional witnesses and their statement at the time of investigation. These proposed witnesses are standing on nothing. This surreptitious attempt to introduce what the deceased sergeant Osahor never did should be rejected. The two document attached did not contain the name of any officer who signed. Finally, the intention of the prosecution is clear to rope in the 1st accused at all cost. Since a witness could not have been forgotten ab initio by the prosecution this proposed additional statement is an afterthought and violates the constitutional right of the accused person. I urge the court to refuse this aspect of the application that I object to in the interest of justice. They are over reaching and not covered by the case already before the court.
According to Umoru Esq who aligned himself with every word and lines of the submission of counsel for the 1st accused person, added that additional evidence does not imply fresh evidence. Referred to Proof of Evidence and Exhibit ‘F’ – Investigation Report. It is the law that where a proposed witness name does not appear on the face of proof of evidence such witness need not be called. See section 9(2)a,b,c of Criminal Procedure, Miscellaneous Edict. No 19 of 1974 applicable in Imo State. He urged the court to reject the proposed additional witnesses from giving evidence in this evidence
Uwasomba responded that prosecution is allowed by law to call the number of witnesses necessary for the proof of his case. Referred to Adeji and the State (1979) 6-9 SC 18. All that is required for the prosecution is to file processes and serve same on the accused. Referred to Jeremiah Ogbonna v. The State 2003, LPELR-21358CA, Fidelis Nwadialo-Criminal Procedure of Southern State of Nigeria pg 96. He submitted that the additional evidence is relevant to the case of the prosecution as to time, place and identification. Referred to Musa Saidu v. State (1968) NMLR 208. It is only involuntary confession that is inadmissible. Referred to Criminal Procedure Act, section 200; which according to him gives court power to call any witness it desires. Asked the court to discountenance the objection.
Onuegbu Esq urged the court to discountenance the reply by the counsel to the State because it is misconceived. It did not answer to the objection which is not on the number of witnesses to be called by the prosecution but that prosecution is not entitled to introduce prospective witnesses who did not feature during investigation. And whose evidence did not form part of the record of evidence – prove of evidence and report of investigation filed in this matter and served on the accused. It will be manifestly overreaching on the accused. See Akala v. FRN, 2012 ALLFWLR (PART 738). The court at this stage is not considering the relevance or weight to be attached to any evidence before the court. According to him Musa Saidu v. State dealt with admissibility of purported confessional statement during trial. That case is not relevant to the situation at hand.
RESOLUTION
I have listened to the submissions of the counsel. What I think is required of this court is to balance the need to ensure that those who are accused are called upon to answer to the full weight of the potential case against them and the need to ensure that no Accused is unfairly prejudiced by having to meet additional prosecution evidence at a late stage.
In as much as I agree that filing of information signals the conclusion or end of investigation, it is not unlikely that situations could arise subsequent to the filing of the witness list, further important witnesses become necessary, known or available to the Prosecution.
Generally the Prosecution ought not to surprise the Defence with additional witnesses whose testimony was foreseeable required prior to the commencement of trial and who were accessible to the Prosecution. No doubt delay in recording statement if it is deliberate will cast a cloud of suspicion on prosecution case. See GANESH BHAVAN PATEL vs. STATE OF MAHARASHTRA (AIR 1979 SC 135)
The question then becomes what are actually the reasons why these witnesses are now deemed necessary and were not so deemed previously? I strongly believe that prosecution is not a gamble where some witnesses or evidence will be kept locked up in the war chest of the prosecution watching how the prosecution is progressing. And so decide when to unleash same in the middle of game.
I have gone through the proof of evidence on which this charge was proffered against the accused persons. This comprised the statement of the witnesses, the police investigation report and others. I cannot see where the witnesses now sought to be called were mentioned –Sergeant Wills Stephen, Messers Godson I. Chinaka and Michael Azuonwu.
I note that the Prosecution did not offer any explanation why these witnesses were omitted ab initio and their statements or their summary of evidence not annexed.
In CORNELIUS OBASI v. THE STATE (2012) LPELR-19950(CA) it is stated:
“I have looked at the proof of evidence and found it to be a fact that the written statement of PW5 was not contained in the proof of evidence. This is a mandatory requirement failure of which vitiates the testimony of the PW5. I uphold the appellant’s submission on this issue accordingly, and hereby expunge the testimony of the PW5 from the records.”
In the instant case, it is clear from the records that PW2 featured for the first and last time therein, on 14/4/2005, when he was fielded by the Respondent as one of its witnesses. His names are Emmanuel Ogali. (See pages 19 – 22 of the records for his testimony under both examination-in-chief and cross-examination). The Information; Statement of Charge; Statements of PWS 1 – 8; as they pertain to the Appellant and the two others tried with him, can be found at pages 121 – 158 of the records. It is clear therefrom that PW2 was not only never listed as one of the proposed prosecution witnesses in the case, but that he was never treated as a potential witness by the Police in the course of their investigations in respect of the instant case. No wonder he made no statement to the Police and which could have been contained in the proofs of evidence.
In MSUGHTER GBOKO & ORS v. THE STATE (2007) 17NWLR (Pt.1063); (2007) LPELR-8300(CA) it is stated:
“The Supreme Court has stated the law on an application to prefer a charge against an accused person before the High Court in Ohwovoriole v. F.R.N. (2003) 3 NWLR (Pt. 803) 176 per Kalgo, JSC at 189 where he stated:-
“An application for such leave is made pursuant to the provisions of the Criminal Procedure Code (Application to prefer a charge in the High Court) Rules 1970. Under the said rules, the application must be accompanied by a copy of the charge sought to be preferred, names of witnesses who shall give evidence at the trial, and proof of evidence (written statements) which shall be relied upon at the trial.”
I have looked at the proof of evidence and found it to be a fact that the written statement of the PW5 was not contained in the proof of evidence. This is a mandatory requirement failure of which vitiates the testimony of the PW5, I uphold the appellants’ submission on this issue accordingly and hereby expunge the testimony of the PW5 from the records.
The Prosecution referred to the learned author, Nwadialo in his The Criminal Procedure of the Southern States of Nigeria at page 96 where it is stated:
“On the other hand, the prosecution could call a witness whose deposition was not taken at the preliminary inquiry and whose name is not at the back of the information. But notice of the intention to do this, with a copy of the evidence which the witness will give, should first be served on the accused and sent to the court.
Now I have looked at the decided authority and the view expressed by the learned author, there seem to be a distinguishing factor. It is “Whose deposition was not taken at the preliminary inquiry”. In other words, the witness surfaced or became known to the police or prosecution after the preliminary inquiry. Understandably his name could not have been in the list of witnesses.
I have looked at the deposition of the two persons the prosecution wants to call, they are dated the same day the other depositions were dated. Anthony Chinaka, Clement Chinaka all made statement on 5-1-2017 and were captured in the Police Report. Curiously the police in his investigation report did not make mention of these two who from what is annexed made their statements same day. One is tempted to ask why did the Police indicate in the report that these persons were interviewed. It would have been a different situation if they were mentioned as having been interviewed by the police but their depositions were not annexed and/or that their names were not listed as witnesses.
The Accused persons’ counsel objected to the call of Sgt. Wills because he was the prosecutor at the Magistrate Court and that he was not listed as a witness in the Information. My view is that in criminal cases the Police Force plays two vital roles, via (a) investigation of crimes and b) conduct of prosecution in the courts. Under investigation of cases, it investigates all crimes with a view to detecting the offenders or arresting them and collecting all available information for use as evidence at the trial. It obtains statements from potential witnesses, suspects or the actual offenders. Under the conduct of criminal prosecution, the police officers have the power to conduct in person all prosecutions before any court whether the information or complaint be laid in his name. See FRN V. OSAHON & ORS. (2006) LPELR-3174(SC); (2006) 5 NWLR (PT. 973) 361; (2006) 2 S.C.(PT.II) 1 ; OLUSEMO V. COMMISSIONER OF POLICE (1998) 11 NWLR (PT. 575) 547,558
It has not been shown that Sergeant Wills participated in the investigation of this crime. If he was involved in the investigation, his being the prosecutor will not stop him from being a witness in this trial. My constraint is that Sgt Will is not listed as a witness, his deposition is not disclosed. If the Prosecution is interested in calling Sergeant Wills as witness I think it will accord with the Constitutional provisions of fair hearing to have his written deposition served on the Accused persons. In AMADI v. A.G IMO STATE (2017) LPELR-42013(SC) it is stated:
“The proofs of evidence are not themselves pieces of judicial or legal evidence on which the Court of law acts on. The proofs of evidence contain the statements or abridged statements made extra judicially to the police or the investigator by the complainant, witnesses and/or the accused person which prima facie sustain the charge or the allegation against the accused person. For purposes of audi alteram partem, proofs of evidence give the accused person notice of the case he is going to meet at the trial. See: S.T. HON: THE LAW OF EVIDENCE IN NIGERIA and also the Court of Appeal adoption of the definition in IBEKWE v. FRN (2004) ALL FWLR (pt.213) 1780:GODWIN PIUS v. THE STATE (2012) LPELR- 9304 – CA
Any evidence given by Sergeant Wills without his written deposition is liable to be expunged at the end. See CORNELIUS OBASI v. THE STATE (2012) LPELR-19950(CA)
I am not in agreement with the counsel to the 1st accused that the State can only bring the MTN call log by recalling the witness who led the foundation for the call log which is proposed to come as additional evidence. The prosecution can tender it through whosoever he feels is most suited to tender same. This court will not place a restraint on that discretion.
Having said all the above, I must point out that in the case of CORNELIUS OBASI (supra) the situation was that there was no application for additional evidence and no written deposition. The PW2 in that case was just called and he testified.
The prosecution in this case, except for Sergeant Wills, has made available to the Accused the proposed evidence of Michael Azuonwu and Godson Ibeabuchi Chinaka. At least on the surface, it appears their statements were taken in the course of the investigation. Bearing in mind that the Prosecution is not compelled to call all the listed witnesses and the statement of a witness is not evidence the court can act upon, the accused persons will have the opportunity to contest or contend with the evidence of the persons at the appropriate time.
The prosecution is granted leave to call additional witnesses in the persons of Michael Azuonwu and Godson Ibeabuchi Chinaka.
I so hold.
I.M.NJAKA
JUDGE
11-10-18