WITNESS SUBPOENAED BY THE COURT AND WITNESS SUBPOENAED BY A PARTY

HOST OF WITNESSES IS NOT NEEDED FOR SUCCEEDING

In OCHIBA v. THE STATE (2011) LPELR 8245 (SC) where it was held as follows: “I need to say it that it is settled Law that the prosecution was not obliged to call a host of witnesses in order to discharge the burden placed on it to prove the charge against the appellant beyond reasonable doubt as dictated by section 138(1) of the Evidence Act. A sole witness like P.w.1, who has given credible and clear evidence which was believed by the trial Judge, will suffice. See OBUE V THE STATE (1976) 2 SC 141; SADAM v THE STATE [2010] 12 SC (PT.1) 73 at 87-88; AKPAN v THE STATE [1991] 3 NWLR (PT 182) 695”.

NOT CALLING VITAL WITNESSES VS NOT CALLING A PARTICULAR WITNESS

The first point that needs be emphasised is that the presumption under section 149(d) of the Evidence Act will only apply against whom it is sought that it should operate where that party has infact withheld the particular piece of evidence in issue and if he did not call any evidence on the point. It only applies when the party does not call any evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435. The section deals with the failure to call evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435. The section deals with the failure to call evidence and not the failure to call a particular witness as a party is not bound to call a particular witness if he thinks he can prove his case otherwise. See: Francis Odili v. The State (1977) 4 SC 1 at 8; Alonge v. inspector-General of Police (1959) SCNLR 516; (1959) 4 FSC 203 etc. Mere failure to produce the evidence in issue would not necessarily amount to withholding such evidence. See: Ganiyu Tewogbade v. Arasi Akande (1968) (Pt. 2) NMLR 404 at 408. So, in Francis Odili v. The State supra, learned defence counsel’s submission was that only one of the two Rev. Sisters robbed with violence was called to identify and to testify against the appellant and that the second Rev. Sister and the two night guards who were present during the robbery should have been called as witnesses particularly as the appellant’s defence was that of alibi. This court as already pointed out dismissed this contention as misconceived as the prosecution was not required to call a host of witnesses to prove a particular issue.

— Iguh, JSC. Oguonzee v State (1998) – SC.131/97

PROSECUTION HAS DISCRETION TO CALL ITS IMPORTANT WITNESSES

It is trite law that there is no rule which imposes an obligation on the prosecution to call a host of witnesses; all the prosecution need do is to call enough material witnesses to prove its case, and in so doing it has a discretion in the matter. See: Samuel Adaje v. The State (1979) 6-9 SC 18 at 28. Bako Bahor v. Yaburi NA Police (1970) NMLR 107 at 112; E.O. Okonofua & Anor v. The State (1981) 6-7 SC 1 at 18. See also section 179(1) of the Evidence Act. What is more it is the law that if a witness is not called by the prosecution, the defence is at liberty to do so. —

Onu JSC. Oguonzee v State (1998) – SC.131/97

THE PROSECUTION NEED NOT CALL A HOST OF WITNESSES

There is no doubt that the defence is not to determine how many witnesses the prosecution will call to testify in Court. The State is at liberty to call only one witness or as many as it desires as long as the testimony of a sole witness is sufficient to establish the ingredients to the charge. See; Bayo Adelumola Vs. The State (1988) NWLR (pt.73)683; (1988) LPELR 119 (SC).

— O. Ariwoola, JSC. Galadima v. State (2017) – SC.70/2013

IT IS WITNESS WHO IS TO EXPLAIN INCONSISTENCY, NOT COUNSEL

A line of decisions of this court, including Onubogu v. The State (1974) 9 SC.1 at p.20; Ateji v. The State (1976) 2 SC 79 at pp. 83 – 84; Boy Muka v. The State (1976) 9-10 SC 193 at p.205, has held that in such a situation there is a failure to prove the criminal allegation beyond reasonable doubt. The person to explain the inconsistency is a witness(es) called by the party in whose case there are inconsistencies or contradictions, and not the counsel from the Bar. Afterall, a bare statement from the Bar has no force of legal evidence. The law is settled that the courts do not accept argument of counsel as substitute for evidence.

— Eko, JSC. Anyanwu v. PDP (2020) 3 NWLR (Pt. 1710) 134

WHO IS A TAINTED WITNESS?

A tainted witness has been classified as one who is either an accomplice or by the evidence he gives, whether as a witness for the prosecution or defence, may and could be regarded as having some purpose of his own to serve. See: Ishola v. The State (1978) NSCC 499 at 509.

— Iguh, JSC. Oguonzee v State (1998) – SC.131/97