LEGAL PRINCIPLE: CRIMINAL PROCEDURE – Prosecution’s Duty – Failure to Call Witness – Not Fatal Absent Prejudice
PRINCIPLE STATEMENT
The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How they get around achieving this is entirely the business of the prosecution. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or number of persons that they must field as witness or witnesses.
RATIO DECIDENDI (SOURCE)
Per Achike, JSC, in Ijioffor v. State (2001) NLC-2002000(SC) at p. 30; Paras B–D.
"The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How they get around achieving this is entirely the business of the prosecution. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or number of persons that they must field as witness or witnesses."
EXPLANATION / SCOPE
The prosecution decides how to prove its case—the number and identity of witnesses. Failure to call a particular witness is not fatal unless it causes prejudice to the accused. The accused cannot dictate to the prosecution which witnesses to call. The test is whether the prosecution’s evidence, as presented, proves guilt beyond reasonable doubt. The absence of a witness does not automatically create reasonable doubt. The accused may call the witness as a defence witness if desired. The principle gives the prosecution flexibility in case presentation. The court examines whether the uncalled witness would have materially assisted the defence. The prosecution must act in good faith—not suppress favourable evidence.
