The State V. Iyabo Albert (1982)

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S. SOWEMIMO, J.S.C.

The State has appealed to this court on two grounds against the discharge of the respondent by the High Court and the Federal Court of Appeal. The two grounds are:

(1) that whether the State or the prosecution for that matter says it has no case against an accused person, it is the duty of the court to ignore that statement and summon in witnesses it likes in order to secure conviction.

(2) that although the prosecution had closed its case without appealing against the ruling of the learned trial Judge for not adjourning any further the case he has failed to exercise his discretion judiciously.

The appellant conceded before us that a statement was made closing the case for the prosecution on the ground that no case has been made out against the respondent and that there was no medical evidence to connect the respondent with the death of the deceased. The appellant having made those two concessions, the learned trial Judge discharged the respondent. Normally, people aggrieved with a decision go on appeal to the Federal Court of Appeal. The appellant, for reasons best known to him and apart from the concession made by him proceeded on appeal. His appeal was dismissed. He now comes before this court to argue on the point of law as provided for in Section 213 sub section A on two points of law viz:

(1) that the learned trial Judge should have ignored the concession made by the State Principal Counsel for the prosecution, considered the evidence before him and based his decision on this consideration;

(2) that although refusal was made after giving the appellant one month adjournment to produce his remaining evidence, which meant therefore that the case would not go on until those witnesses has been found.

It is the duty of the prosecutor to bring necessary witnesses to establish its case whether it has failed to do so the case would stand dismissed. This appeal is spurious and the accused having been discharged should be allowed to go free. The appeal therefore is dismissed and this shall be the order of this court.A. O. OBASEKI, J.S.C.: The appellant is the State appealing against the dismissal by the Federal Court of Appeal of his appeal against the acquittal and discharge of the respondent by the learned trial Judge. This appeal as well as the appeal to Federal Court of Appeal was not on the ground that the acquittal and discharge was not based on the evidence but that an application for adjournment made by the prosecution which was refused before the prosecution closed its case was refused in error. It is on record that the prosecution closed its case and conceded that it had not made out a prima facie case of murder against the accused because there was no evidence of the cause of death of the deceased. The learned trial Judge quite properly found that no case was made out for the accused to answer and discharged her. At that stage, the State cannot, in my view, be heard on appeal to challenge the acquittal and discharge the grounds of appeal. To argue that the learned trial Judge should have himself summoned the prosecution witness to testify is to violate the provisions of our Constitution ensuring the impartiality of the court. See Section 17(2) (e) Constitution of the Federal Republic of Nigeria, 1979. This appeal is frivolous and should be dismissed and I hereby dismiss it and affirm the judgments of the Federal Court of Appeal and the High Court discharging the accused/respondent.

K. ESO, J.S.C.: I agree. This is a most frivolous appeal by the State. The State, having failed to produce their witness, closed their case. The learned State Counsel informed the court thereafter he had no evidence to connect the respondent with the cause of death. All these having happened, the learned trial Judge rightly discharged the respondent. The Federal Court of Appeal to which the State appealed rightly dismissed the appeal. Learned counsel in this court has not shown any iota of reason why we should interfere with the decisions of the trial court and the Federal Court of Appeal. There is no point of law urged upon us to bring the appeal under Section 213(2) (a) of the Constitution of the Federation.This appeal is dismissed.

A. NNAMANI, J.S.C.: The respondent was discharged and acquitted by the Kaduna High Court under Section 191 (3) of the Criminal Procedure Code. The Federal Court of Appeal affirmed this judgment. The appellant has now appealed to this court purportedly under Section 213(2) (a) of the Constitution of the Federal Republic of Nigeria 1979. This appeal can only lie under this section on grounds of law. The appellant complains that the learned trial Judge did not exercise his discretion judicially in refusing to grant an adjournment and that he did not make proper use of Section 237 of the Criminal Procedure Code. The appellant, however, concedes that before the learned trial Judge exercised his powers under Section 191 (3) of the Criminal Procedure Code, the prosecution had not only closed its case but had conceded that it had at that stage not made out a case against the respondent and had led no evidence to connect the death of the deceased with the act of the respondent. In my view, after the judgment of the learned trial Judge, particularly since the prosecution had closed its case, the question of adjournment was no more relevant. Even if one conceded, which I do not, that that question of adjournment was still relevant i would certainly agree with the Federal Court of Appeal that there is nothing in the printed record to justify any quarrel with the manner in which the learned trial Judge exercised his discretion. When the application for adjournment was made, he was neither told which witness it was proposed to call nor what evidence that witness was to give. The learned trial Judge had previously granted long periods of adjournment. I would also say that in the circumstances of this case, Section 237 of the Criminal Procedure Code could not have been applicable. It is nevertheless regrettable that the errors of the prosecution did not enable the trial court determine this tragic case on all the evidence which ought to have been available to it. I agree that the appeal lacks substance, and I would dismiss it. It is hereby dismissed and I also affirm the judgments of the learned trial Judge and the Federal Court of Appeal.

M. L. UWAIS, J.S.C.: By Section 213(2) (a) of the Constitution there can only be appeal to this court in criminal proceedings where the point involved is a point of law. In this case the appellant is complaining that the learned trial Judge refused to grant the prosecution an adjournment to call a witness, namely the Police Investigator of the case.

This application was not made under S. 237(1) of the Criminal Procedure Code as learned counsel for the appellant conceded. The prosecution merely asked for adjournment which was at first granted and after a month’s interval the same application was repeated but was refused. Surely this was an exercise of discretion by the learned trial Judge and cannot form the basis of appeal to this court under Section 213(2) (a) of the Constitution. I therefore agree that the appeal lacks merit and it is hereby dismissed. The decision of the Federal Court of Appeal is affirmed.

SC.65/1981