SALAMU V. THE STATE

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82

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NIGERIAN SUPREME COURT CASES

[1970] N.S.C.C.

did not constitute

res judicata,

the case be and it is hereby sent back to the Chief

Magistrate's Court with the direction that the appeal be there heard and determined

on the other grounds of appeal still pending decision in the said Chief Magis-

trate's Court. The plaintiff's are entitled to their costs in this Court assessed and

fixed at 135 guineas. The defendants are also entitled to the costs awarded them

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in the High Court. Costs in the Chief Magistrate's Court to abide the event. Order

accordingly.

Appeal allowed: judgment of High

Court set aside: case sent back to

Chief Magistrate for appeal to be

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heard.

SALAWU V. THE STATE

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15

SULE IYANDA SALAWU

V

THE STATE

APPELLANT

RESPONDENT

SUIT NO. SC 219/1969

20

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

MADARIKAN,

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J.S.C.

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25

UDOMA,

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J.S.C.

20th March, 1970

Criminal Law - Homicide - Murder - Application by Accused to re-call witness

to testify as to state of health - Refusal by trial Judge on the ground that

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evidence to be tendered was non - Essential to just decision of case - Whether

proper - Criminal Procedure Act (W.W.) s.200.

ISSUES:

1.

What is the nature of the power of a trial Judge to re- call witnesses in a criminal

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case.?

2.

Is it proper for a Judge to refuse to recall a witness for the defence on the

ground that his evidence would not be essential to a just decision?

FACTS:

The Appellant was charged with murder. In the course of cross- examination,

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a witness called by the court for the first time revealed that the Appellant was sick

when the murder occurred, that he had a fever and had walked naked from Og-

bagba to Ede on the day of the incident. The Appellant sought to recall a witness

to testify as to his state of health but the Judge refused on the ground that the evi-

dence to be tendered was non- essential to a just decision of the case. The Ap-

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pellant was convicted.

His appeal to the Western State Court of Appeal was dismissed.

The Appellant then appealed to this court on the ground that the trial Judge

erred in refusing his application to re-call a witness as to his, (the Appellant's)

state of health. And that as a result of this failure, the appellant alleged that he was

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deprived of the opportunity of putting the whole of his defence to the court.