An Overview of the Extent of the Applicability of the Maxim "Ex Improviso" By Nana Hauwa'u Abdulazeez and Qosim A. Muhibudeen

The rule inscribed in the maxim “EX-IMPROVISO” is very limited and not applicable in all instances the court orders for recall of a witness, upon an application made to it or suo motu, nor does it ordinarily forecloses the chance of the Prosecution to call additional evidence after the close of the case of the Defence without giving credence to the surrounding circumstances.

The normal order of giving evidence before a Nigerian Court, based on the circumstance of our adversarial system, is for the prosecution to call its witnesses to give evidence first before the Defence opens his case. However, there are instances where: (a) a witness can be recalled either with an application to the Court, (b) additional witness is/are called  by the prosecution Counsel or (c) a court suo motu called a witness.

While the maxim “ex improviso” relates to the prosecution calling additional wAsitness after the close of the Defence purposely to rebut the the defence put forward by a Defendant, the doctrinal maxim is not without caution. For conciseness, clarity and brevity, the limit of this piece shall be restricted to the second instance stated above.

Calling additional witness by the Prosecution counsel could be either to rebut the defence put forward by the Defence or for such other reasons as may be necessary for just determination of the case. Thus comes the rule encapsulated I’m the maxim “ex improviso”. Ex improviso relates to instances where the during the defence of a Defendant, issues arises which was not foresee during the Prosecution witness and as such not been previously addressed by the Prosecution. It gives credence to instances when prosecution may be allowed to call evidence in rebuttal of evidence of the Defence). This reiterates the general rule that: once the Defence has closed his case, the prosecution Counsel cannot  be allowed to call any more evidence/witnesses save where the Defendant (in his defence) had raised new matters which the prosecution could not have envisaged/foreseen before the close of the Prosecution’s case. 

Flowing from the above, where such a need arises, the prosecution may, with leave of the Court, adduce evidence to rebut same by calling for oral testimony and/or presenting evidence as such. Out differently, 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 concomitant with the provision of Section 237(1)  of the Criminal Procedure Code which provides thus:

"Any Court may at any stage of any inquiry, trail or other judicial proceeding under this Criminal Procedure Code summon any person as a witness or examine any person in attendance through not summoned as a witness, or recall and ex- examine any person already examine and the court shall summon and examine or recall and examine any such person if his evidence appears to be essential to the just decision of the case".

Consequently, where no matter arises ex improviso in the evidence given by the defence, a court would 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.

For a better justification to the understanding of the maxim, it is proper to seek solace in the very recent decided case of JAFARU YUSUF V. KANO STATE (2023)10 NWLR ( pt. 1891)1-194.

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 this case. The issue in this case was on purport of the " Ex-improviso" rule in relation to recalling or calling of additional witness. The Background fact was, in summary, that the initial Prosecution at the at trial Court stopped appearing in the case sequel to his resignation which was not at first disclosed to the Court. Applying for the closure of the Prosecution’s case at the instance of the Defence, a new state counsel appeared when the Defence had already opened his case and therefore, the Defence, in the presence of the new state counsel, called his witness and close his case. Thereafter, the initial state counsel (now a private legal practitioner) by fiat appeared again for the state and applied that he called additional witnesses which was unopposed by the Defence counsel. The Court consequent granted the reliefs as prayed, additional witnesses called, examined and cross-examined. Not satisfied with the conviction, the Defence appealed.

At appeal, the Appellant advancef that thee rule of “ex improviso” cut off and bars  the Court from granting the order even though the Appellant (the Defense at trial) did not object.

The learned wise-men of the Supreme Court in their decision clearly distinguished the fact leading to the appeal as presented above and the application of the “ex improviso”. The Court iterated that:

The argument of the learned appellant's counsel that the "Ex-improviso" rule is applicable here is misconceived. The rule is that a court can only exercise it's powers to call witness after the close of the case of defence where there are issues raised for the first time in the evidence of the defence.

Though thee court further held that a trial court has the power, under the section cited earlier above 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 court however noted that:

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.

This, the Court distinguished that what happened at the trial was the grant of an application for call of additional witness by the Prosecution ordinarily and not to rebut the evidence of the Defence earlier put forward to the Court looking at the fact that the Prosecution’s case was forcefully closed on the application of the Defence at the trial Court. Further distinguishing the fact from the two cases reoieed uoin by the Appellant, the court further noted that:

In all these cases, the trial court by motion or suo motu recalled prosecution witnesses seemingly to rebut the defence put up by the defendant. That procedure is totally unacceptable. I am convinced that in the circumstances of this case, the trial court was right to grant the motion on notice moved by the prosecution to call further evidence as it was done in the interest of justice. No miscarriage of justice was occasioned by the procedure as the learned appellant’s counsel was present throughout to test the testimony of the witnesses under the fire of cross examination. The jurisprudence should be to consider the circumstances of each case before arriving at the conclusion that the procedure adopted at trial though irregular had caused gross miscarriage of justice before setting aside the judgment of the trial court. That should be the watchword. While protecting the right to fair hearing of a defendant at trial, the right to life for which the deceased was deprived must not be forgotten.

In the final, the court held unanimously that the contention of the Appellant is not by any stretch overtaken by the rule inscribed in the doctorine of ex improviso. Its purpose is not for the Prosecution to rebut the defence put forward by the Defence looking at the circumstance of the case. 

About The Author:

Nana Hauwa'u Abdulazeez is a member of Research & Litigation Directorate, Solace Chambers, Bayero University, Kano. She can be reached via +234 703 917 6661

About the Contributor:

Qosim A. Muhibudeen is the Director Of Research & Litigation. He can be reached via https://muhibqosim.com.ng