EX IMPROVISO RULE
The normal order of giving evidence before a court is for
the prosecution to call its witnesses to give evidence first. The exception to
this is permitted only if, in the course of the defence case, a matter arises ex improviso, that is, the defence
adduced evidence which no human ingenuity could foresee.
The prosecution may with the leave of the court call
witnesses to testify after the close of the case for the defence to rebut the
evidence adduced by the defence on the ex
improviso matter. This is provided for under section 289 of the Criminal Procedure Act (CPA).
Section 289 provides that –
“If the defendant adduces in his defence new matter which
the complainant could not foresee, the complainant may, with the leave of the
court, adduce evidence to rebut such first mentioned evidence”.
Where no matter arises ex
improviso in the evidence given by the defence, a court should not grant
leave to the prosecution to adduce evidence at the end of the defence case. For
this would amount to allow the prosecution to reopen its case.
The power of the court to grant leave to the prosecution to
call a witness in rebuttal of ex
improviso evidence should not be mistaken for the power of the court to
recall or call at any stage of the proceedings before judgment, a witness for
examination for the just decision of the case. In the latter situation, it is
the court that exercises the power to call or re-call a witness, be he a
witness for the defence or the prosecution, irrespective of whether a matter
has arisen ex improviso, provided
that the calling of the witness is considered necessary for the just decision
of the case. Whereas in the former, the power to call a witness is exercised by
the prosecution and not the court, although it must be with the leave of the
court.
The distinction between a court calling or recalling a
witness suo motu for the just
determination of a case, and the prosecutor calling a witness with the leave of
the court after the case of the defence, is clearly made in the case of Bala
v. Commissioner of Police (1973) NNLR 26, where the accused persons
were charged with theft. After the conclusion of the case, the evidence before
the court was insufficient to secure a conviction. The trial magistrate,
purportedly acting under section 237(1) of the CPC, recalled two prosecution
witnesses who gave evidence. Their evidence was used to convict the accused
persons. On appeal against conviction, it was argued inter alia that the magistrate erred in law in recalling the two
prosecution witnesses, when no matter had arisen ex improviso which could not have foreseen with human ingenuity.
The High Court held that on a proper construction of section 237(1)(a) of the
CPC, a matter need not have arisen ex
improviso, before a court can exercise its power to call additional
evidence under the section. It further held that a trial court has the power,
under the section to call additional evidence or to recall witnesses if the
evidence of such witnesses appears to the court to be essential to the just
decision of the case. The power is not subject to the limitation that the
witnesses must be called or recalled in order to adduce evidence in rebuttal on
a matter that arose ex improviso.
Unfortunately, in deciding issues on the propriety or
otherwise of calling or re-calling witnesses, the courts have often failed to
make the necessary distinction between the power of the court to call witnesses
at any stage of the proceedings before judgment – section 200 of the CPA; and section 237(1) of the CPC; and the
power of the prosecution to call a witness after the case of the defence in
order to adduce evidence in rebuttal of evidence given ex improviso – section 289
of the CPA. In other words, several decisions convey the impression that
both sections are interchangeable and deal with the same subject-matter – Ejokolem
v. Inspector General of Police 14 WACA 161; George v. The State (1971) All NLR 205.
In Onuoha v. The State (1989) 2 NWLR (Pt. 101)
23, the trial court, in exercise of its power under section 200 of the
CPA, called two witnesses after the close of the case for the defence. The
accused appealed against his conviction on the ground that the two witnesses
called by the court were called to strengthen the prosecution’s case. The
appeal was allowed.
CONCLUDING/FINAL
ADDRESS FOR THE PARTIES
At the end of the defence, the parties may address the
court. The order of address and the prosecution’s right of reply, depend on
whether any witness other than the accused has been called for the defence or
any document has been tendered by it and also on whether the prosecutor is a
law officer.
A “law officer” means any of the following: the
Attorney-General of the Federation or of a State; the Solicitor-General of the
Federation or of a State; or a Federal State Counsel or a State Counsel of a
State. Where such an officer prosecutes, he always have a right of reply – Adamu
v. Attorney-General Bendel State (1986) 2 NWLR 284.
In practice, concluding or final addresses may be reserved
at the end of the case. The following are the situations that may arise:
1.
The
case where no evidence whatsoever is called at all for the defence – section 202 of the CPA.
2.
If
no witness is called by the defence except the accused person alone, or solely
as to the character of the accused person and no document is put in evidence
for the accused, the defence is entitled to address the court after the accused
or the witnesses as to character have testified. In such a case, the
prosecution has no right of reply except that if the defence has made an
opening address to its case and it has introduced new matters which have not
later been supported during its case, the court may allow the prosecution to
reply – section 241 of the CPA. The
prosecution may also reply in such a case where a law officer is personally
appearing – section 243 of the CPA.
3.
If
any witness, other than the accused person himself or witnesses solely as to
character of the accused person, is called or any document is put in evidence
for the defence. In such a case, the defence addresses the court at the close
of its case and the prosecution then makes a reply – section 242 of the CPA. The right of reply of the prosecution here
does not depend on whether a law officer is prosecuting.
Any person appearing for the prosecution, not necessarily a
law officer, has a right of reply in such a case – Adamu v. Attorney-General Bendel
State (supra).
After the address or address by the parties, the court
considers its verdict and may for that purpose adjourn – section 244 of the CPA. The verdict is delivered in the open court
before the accused person by the judge or the magistrate.
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