It is trite law that every matter is decided on the strength of its own merit. One must thus be careful so as not to be lost in the labyrinth of peculiarities which Courts may consider before the determination of a suit.

At this juncture, I dare state straight away that it is not inutile to explain by way of example what it generally means for a party to open and/or close (special emphasis) his case. On the foundation of the acceptable procedure, a party is said to open his case when the facts of the matter before the court is stated and goes ahead to call witnesses as well as give evidence in support of a cause of action.


Stricto sensu, a party is said to have closed his case when evidence or pieces of evidence and a final witness is deemed to have been called in the just determination of a matter. To my mind, and to stretch it further, a party does not contemplate to adduce evidence or call on another or any other witness if he wishes to close his case. This practice is peculiar to civil matters; nevertheless, it is not alien to Criminal proceedings.

Let it not appear that I have been running away from a concise definition. Simpliciter, a party is deemed to have closed his case when he has concluded his evidence.

Whether a witness can be called or recalled after a party has closed his case is not a one-way traffic route. We shall now scoop from the mind of the court what the law may be one way or the other.

First off, in the case of Legal Practitioners Disciplinary Tribunal v. Idowu (1971) LPELR-SC.157/1970, a sharp contention arose as to when a party closes his case versus when a case was not completed, i.e. without the addresses by counsel on both sides; however, the court safely injected a principle of law into our legal soil. In doing so, the court referred to the case of Dr. E.O.A. Denloye v. Medical & Dental Practitioners Disciplinary Tribunal, SC.91/68, and held in its exact verbals that: “… The Tribunal, in its judgement, sought to distinguish the present case from Denloye’s case on the point that the case had been completed in Denloye’s case and could not be reopened, but that in the present case, there was still the addresses of counsel on both sides and the case was not completed without the addresses. We do not see the difference between the two cases. At the close of the case of the defence, that was an end of the complaint before the court, and the only evidence which could be allowed, at the discretion of the court, was evidence of rebuttal if the accused person had given evidence. We are clearly of the view that in the present case, the Tribunal had erred to have allowed evidence of the two witnesses or to have called this evidence itself in order to strengthen the case against the practitioner. We find support for our view in a case decided in the West African Court of Appeal in 1952. We refer to the case Dickson Ejukoleru v. Inspector-General of Police, 15 W.A.C.A. 161.” Per ADEMOLA, C.J.N. (Pp. 10-12, paras. D-C)

In furtherance, the court, while determining whether the calling back of witnesses can amount to a miscarriage of justice, held in the case of ONUOHA & ORS. V. THE STATE (1989) LPELR-SC.55/1987, that the calling of additional witnesses after the close of the defence was a grave irregularity which has occasioned a miscarriage of justice on the basis that the additional witnesses called after the defence has closed its case was not called on any matter arising ex improviso from the defence. Another is that the additional evidence was used to strengthen the case for the prosecution and to weaken that for the defence. See also: Bassey v. Ekanem (2001) 1 NWLR (pt. 694) pg. 376, para. B-D, F-H.

Interestingly, the court provided more answers as to whether a witness can be called or recalled after a party has closed his case in OMODARA V. THE STATE (2008) LPELR-CA/L/656/2005. In this case, the issue was as regards whether it is only where the defence has set up a case ex improviso that the court can have the power to call or recall a witness at any stage of any proceedings. The court firmly planted a principle in the following words: “In Onuora vs. The State, issue no. 1 for determination was “Whether the calling of witnesses by the trial Court after the close of the case of both the prosecution and defence, when there was nothing arising ex improviso in the case presented by the defence, was proper and did not occasion a miscarriage of justice.” The Supreme Court, as per Oputa JSC, provided the answer thus:- “Under the Adversarial System which operates in Nigeria, parties alone take issues with one another. The need to call witnesses arises from the onus on a party to establish its own side of any given issue. Since the court does not take issues with either party, the court has no business calling witnesses except as, and where so provided by any written law. Is there any such law in criminal cases? The answer appears to be yes.” He then identities S.200 of the Criminal Procedure Law Caps 31 Laws of Eastern Nigeria as the applicable law. The said S.200 is in pari material with S.200 of the Criminal Procedure Law Laws of Lagos State 2003, the contentious provision in this appeal. Oputa JSC proceeded further ‘This Section 200 CPL – has been the subject of many judicial decisions explaining the need for this judicial interference and also setting them as follows: After the close of the case for the defence, the trial judge can call a witness proprio motu or suo motu if, and only if, the defence has set up a case ex improviso, which no human ingenuity can foresee. But even here, it should be made quite clear that the evidence is not such as is only calculated to do an injustice to the accused but one essential to a just decision of the case: R. v. Dora Harris (1927) en. APP. R. 86. The point being made here is that when the prosecution has been closed, the prosecution stands or falls by the evidence it has adduced.” Per AGBO, J.C.A. (Pp. 10-12, paras. F-A).

For want of proper words, I shall reproduce the considerations and reasoning of the court in the case of CHUKWUMA v. F.R.N (2011) LPELR-SC.253/2007 ipsissima verba: “I think the pertinent questions which require potent answers, in my view, in relation to the issue of reopening the case by taking evidence after the case has been closed and a date fixed for judgment, are as follows: (i) Whether a trial court can reopen a case after it has been closed. (ii) if it can, what are the rights open to the other party (the appellant in this case)? (iii) Has the trial court in this case afforded the (accused) appellant such rights? The general principle of law and practice in our adversarial system is that after the close of a case, no further evidence ought to ordinarily be given by any of the parties. This court, in the case of DENLOYE v. M & DPDC (1968) NSCC 260, held as follows: There can be no doubt about the general rule that in a case in which the guilty of a man is an issue, judgment is being considered it is too late to allow further evidence to be given. If this were allowed, it is difficult to see what limitation could be put on it'” (Per ADEMOLA (CJN) who delivered the judgment of the court). The above dictum itself was based upon the case of HARVOT VS. POLICE 20 NLR 53, where it was held on appeal from the Magistrate Court that section 200 of the Criminal Procedure Act (Cap. 43) cannot be invoked when the case before the court had been closed. Section 200 of the CPA provided that the court at any stage of any trial, inquiry or other proceedings under the Act may call any person as a witness or recall any person already examined for re-examination if his evidence appears to the court to be essential to the just decision of the case.” Per MUHAMMAD, J.S.C. (Pp. 26-27, Paras. F-G).

As a matter of necessity, the case of ADO (DANGAJERE) V. STATE (2017) LPELR-SC.139/2013 is instructive. In this case, the prosecution was unable to proceed with the hearing of the case, due to persistent absence in spite of several hearing notices served on them, the court closed their case, and the appellant and his co-accused opened their defence. They were cross-examined, and at the close of their defence, the matter was adjourned to 10 November 2009 for judgment.  The written addresses of counsel were to be deemed adopted. On 2 February 2010, learned counsel for the prosecution moved a motion filed on 28 January 2010 for leave to call eight of its witnesses who were yet to testify and for an order staying the filing and adoption of final addresses pending the closure of the prosecution’s case after the evidence of the witnesses sought to be called. It is noted on page 32 of the record that learned counsel for the appellant, A. Lawal Esq., did not oppose the application. It was accordingly granted as prayed, and the prosecution was given two consecutive days, 25 and 26 February 2010, for the continuation of hearing. The prosecution called PWs 3, 4, 5, 6 and 7. All of them except PW5 were cross-examined by learned defence counsel. On 21 April 2010, learned counsel for the prosecution closed its case. Learned counsel for the accused persons stated thus at page 41 of the record: “Gambo: The defence has closed its case before the prosecution reopen (sic) its case. We are also done. We ask for a date for address.” (Emphasis mine). Both counsel urged the court to deem the written addresses to be filed as adopted so that a date for judgment could be given. The court obliged and adjourned the matter to 21 June 2010 for judgment. The appellant was found guilty on all three counts and sentenced to 3 years imprisonment for conspiracy, five years imprisonment for robbery and death by hanging for the offence of culpable homicide punishable with death. It is noteworthy that there was no appeal to the lower court against the order made on 2 February 2010. There was also no attempt by the defence to call any other witnesses after PWs 3-7 testified. Indeed, as shown above, learned counsel was content to rely on the case put forward by the defence prior to the evidence of the additional prosecution witnesses.  The law is that a party who has an opportunity of being heard but failed to utilise it cannot be heard to complain of a lack of fair hearing thereafter. See Darma v. Ecobank (2007) LPELR-41663 (SC) at pages 18-19, paragraphs A-D; Okike v. Legal Practitioners Disciplinary Committee (2005) All FWLR (Pt. 266) 1176, (2005) 15 NWLR (Pt. 949) 471; Attorney-General, Rivers State v. Gregory Ude (2006) 17 NWLR (Pt. 1008) 436, (2007) All FWLR (Pt. 347) 598. The court further reasoned that since the appellant’s counsel had reasonable opportunities, all of which he couldn’t utilize; that first, at the stage when the application to call further witnesses was made, he could have stoutly opposed the same, but did not avail himself of the opportunity; that another opportunity presented itself to discredit the evidence of the witnesses during cross-examination; that the appellant had yet another opportunity after the prosecution closed its case to reopen his defence and call evidence to repair whatever damage might have been done to his case by the evidence of these witnesses. The Supreme Court held that the lower courts were right to have allowed the calling of additional witnesses after parties have closed their case.

More so, the Supreme Court has established a principle which, in my view, will stand the test of time. In KAJAWA v. STATE (2018) LPELR-SC.744/2013, the court answered a pertinent question: what is the position of the law as regards recalling of witnesses?

The court held: “… the trial Court was right when it acted under Section 200 of the CPL of Lagos State, 2003, to reopen the prosecution’s case at the stage it did. By the provision of Section 200 of the CPL of Lagos State, 2003, a Court is empowered to either call a fresh witness or recall a witness that has already given evidence where the pieces of evidence to be given are essential for the just determination of the case …”


Circumstances of a particular matter determine whether a Court can hold in one way or another in the interest of justice. The Courts have always exercised judicial and judicious discretion in determining a matter, and where a lower Court makes a law in error, higher Courts are always awake as to wash off the stain of the said error from the white robe of the court’s status.


This article was written by Prince I. Ubochi;, 07065434356; Intern at St. Sen Solicitors, Abakaliki.