NIGERIAN LAW SCHOOL 2009 BAR FINALS QUESTIONS AND ANSWERS IN CRIMINAL LITIGATION
COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
BAR FINAL EXAMINATIONS – PART II
CRIMINAL LITIGATION
TUESDAY, MAY 8, 2009 TIME: 3 HOURS
INTRUCTIONS
THIS PAPER IS DIVIDED INTO 2 SECTIONS AND 2 ANSWER BOOKLETS ARE PROVIDED.
QUESTIONS 1 AND 4 ARE COMPULSORY. ONE OTHER QUESTION FROM EACH SECTION SHOULD BE ATTEMPTED.
QUESTIONS FROM EACH SECTION SHOULD BE ANSWERED ON A SEPARATE ANSWER BOOKLET.
WRITE YOUR EXAMINATION NUMBER ON EACH ANSWER BOOKLET.
QUESTION 1 (COMPULSORY)
1A. Torkula Chukwumerije, Adakole Admola, John-Magnus Piu, Idris Idoko, Theophilus Abubakar and Amina Pulloway are notorious armed robbers within the Bwari area Council. On 5th April, 2009, they decided to have the most violent-free operation in any supermarket within Bwari in the spirit of the Easter on 8th April, 2012, they drove into the premises of Made-in-Nigeria Supermarket located at No. 55 SCC Road, Bwari.
Amina Pulloway stood at the gate with the security men pretending to be answering phone calls but her mission was to alert others with her hidden whistle of any impending danger. Torkula and Adakole went to the Book Section of the Supermarket where they suddenly began to shout at each other and later, began to exchange blows. Everybody in the Supermarket including the Security men rushed to the Section to stop the fight. Meanwhile, john Magnus, Idris and Theophilus went into the Information Technology Section where the Cash safe was also located. Theophilus neatly opened the Safe and took out the sum of N150,000.00
John Magnus took a Camcorder, a Samsung I-Pad and a Toshiba Laptop Computer. Idris took a Palmtop Computer and a DSTV Decorder. As they made to go out, Mary, a sales clerk asked them at the check-out desk for their receipt. Theophilus smiled at her broadly and gave a wrap of N500 notes containing N50,000.00. She quickly pocketed the money and left them to pass.
All the perpetrators met at the Easy Life Cool Spot at 6.oo p.m the same day as arranged. There it was decided that all the items with market value of N2.5million be sold Chief Maza Maza at the cost of N500,000.00 if he could pay cash. The items were taken to Chief maza Maza’s Shop at No. 22 Law School Road, Bwari and he paid N500,000.00each. the money was shared by the six in equal proportion and after consuming some gin, they bade each other good night. On his way home at Ushafa, Theophilus saw a 2012 model Toyota Camry packed by the road side with its engine running and the driver easing himself by the other side. He entered the car and drove off.
The police eventually arrested the six men, Chief Maza Maza and Mary. The Attorney-General of the Federal has decided to prosecute them.
Draft the Charges.
THE LAW
PENAL CODE ACT
SECTION 286(1)
Whoever intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to take it is said to commit theft.
SECTION 287 – PENAL CODE ACT
Whoever commits theft shall be punished with imprisonment for a term which may extend to five years or a fine or with both.
PENAL CODE ACT
SECTION 97(1)
Whoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in the Penal Code for the punishment of such conspiracy be punished in the same manner as if he had abetted such offence.
97(2)
Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for a term not exceeding six months or with fine or with both.
PENAL CODE ACT
SECTION 79
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
PENAL CODE ACT
SECTION 317
Whoever dishonestly receives or retains any stolen property; knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment for a term which amy extend to fourteen yyears or with fine or with both.
PENAL CODE ACT
SECTION 298(1)
Whoever commits robbery shall be punished –
a. With imprisonment whcih amy extend to ten years and shall also be liable to fine
1B. At the close of the Prosecution’s case, the defence intends to make a no case submission because the evidence of the prosecution was that the body of Mrs. Esther Shenbe could not be found and Alhaji Manda did not give evidence, although he was named in the “list of witnessess”attached to the proof of evidence.
i Draft the address
ii What is the possible legal effect of failure ot call Alhaji Manda as a witness by the Prosecution
iii The learned trial judge in his 25-page rulling on the no-case submission, overruled it and ordered that the defendant enter his defence. Comment on the ruling delivered by the trial judge.
QUESTION 2
Hamza Hamed and Baba Kushinga were fellow traders at Mile 12 Market Lagos. They both conspired to waylay Miss Kate Okorocha another trader in the market other way home and rape her. On the 10th day of July 2008, they carried out their plan. After a report to the Police the next day, they were both arrested and arraigned before in Ikeja Chief Magistrate Court. The accused persons pleaded not guilty to the offence charged and the Court adjourned for the prosecution to open it case.
On the adjourned date, the prosecution brought an application for leave to amend the chargte by adding one more count of assult occasioning, grievous harm and it was granted. Without taking fresh plea of the accused persons, the trial continued. The Prosecution was about to open his case when the Counsel to the accused brought an oral application for bail on behalf of the accused person. The prosecutor object that, being an application for bail it could not be brought by way of oral application. He was overruled and the defence counsel moved the application. The trial magistrate hard the arguments of both Counsel and ruled that he would grant the bail provided they could produce credible sureties.
Since they were unable to find suitable sureties, the Counsel for both accused elected to stand as surety for them. They were subsequently released on bail.
The trial continued with the Prosecution calling three witnesses including the dovor that examined the prosecutrix and closed their case. The defence also called three witnesses after which, the accused persons made statements from the dock. When the Prosecution Counsel rose to cross examine them, the defence Counsel objected but the Magistrate overruled him and the Prosecutor cross examined them at length.
At the end of the trial the accused persons were convicted and each sentered to fourteen years imprisonment without the option of fine. Their Counsel has indicted his intention to appeal against their convictions and sentences.
Answer the following questions with legal authorities where necessary:
i Was the Court right in not talking fresh plea on the new charge? What is the procedure after amendment of a charge?
ii Assuming you were the Prosecutor in this case, would you have objected to the oral Bail Application made by defence? Give reasons.
iii As Counsel to the accused person would you have stood as surety for them? Why?
iv Was the Magistrate right in overruling the objection of the defence Counsel and allowing the Prosecution to cross examine the accused persons? Explain briefly.
v Assuming you are the Counsel for the defence, in which Court will you file your notice of Appeal?
a. Draft a Notice of Appeal
b. Within how many days must it be filed?
c. Mention three grounds of Appeal to be argued at the Court.
QUESTION 3
At the trial of Katanko for the murder of Mrs. Oxblood at the High Court Kano, the Investigating Police Officer (IPO) gave the following evidence under examination-in-chief by Prosecuting Counsel.
Question 1: You are Inspector Sule Banda of Sabongari police Station in the Kano Police Command with Force No. 12468.
Answer: Yes
Question 2: You were at Curtis Bar run by Mrs. Oxblood (the deceased) on 20th April, 2011.
Counsel for
Defendant: My Lord, I object to that question
Judge: Objection overruled. There is no dispute about the question. I direct the witness to answer the question.
Witness
Answer: Yes sir.
Question 3: In what condition did you find Mrs. Oxblood?
Answer: In the pool of her own blood.
Question 4: What did you do thereafter?
Answer: I interrogated the Bar man Mr. Godwin Saviour. He told me that he was told that it was Mr. Katanko, a notorious thug in the neighbourhood who engaged Mrs. Oxblood in an argument when he refused to pay for his drinks and hit her on the head with a bottle of beer.
Question 5: Where is Mr. Saviour now?
Answer: I dont know sir
Answer the following questions with the aid of relevant authorities:
a. What is the nature of Question (1) above? Is it allowed in examination-in-chief?
b. What is the possible ground for objection of Counsel to the defendant to Question (2)?
c. Was the Learned Trial Judge entitled to direct the Witness to answer question (2)? Give reason(s).
d. What question(s) would you have asked before Question (3)
e. The answer of the witness to Question 4 is in the nature of what? Is it admissible?
3b. The following counter affidavit in opposition to a bail application filed in the case of THE STATE VS. ALARAPE UGOCHI has been passed on the you by the IP.P for necessary vetting. As Senior State Counsel, vet and if thought fit, re-draft.
IN THE FEDERAL HIGH COURT
IN THE JUDICIAL DIVISION OF ABUJA
SITTING AT ABUJA
CHARGE NO……………………..
ALARAPE UGOCHI………………………………………………………………………… ACCUSED
VERSUS
ATTORNEY – GENERAL ……………………………………………………………….. PROSECUTOR
AFFIDAVIT IN OPPOSITION
1. I am the Officer posted to the Nnamdi Azikiwe International Airport on 10th March, 2012 as NDLEA Officer
2. I live at No. 23, Nnamdi Azikiwe boulevard, Gwarinpa and as a Christian, I know everything about this case.
3. The affidavit, the motion all the documents presented by the applicant area II lies because there is no single truth in them. I personally arrested the accused.
4. That I did all the necessary narcotic tests and none of them proved negative
5. If the accused person is granted bail, he will jump bail because the punishment for the offence is 25 years which is very high.
6. That when the accused stated in Paragraph 5 of his affidavit, that he is sick, he is lying because when I took him to the hospital, the Doctor looked at him, smiled at him and said that he was very alright.
7. That the Doctor even gave us the result of the test conducted whcih show that the accused is very well.
8. That I have attached the Doctor’s Report for your perusal.
9. That even if the accused is sick, we can take care of him because he have a working understanding with the National Hospital for the Specialists to come and treat our detainees and we can rush emergencies to them
10. The Memo of Understanding between the NDLEA and National Hospital Abuja is enclosed here for your information.
11. That everything I have stated here is to the best of my knowledge and I have the consent of my employers, and that of the Attorney-General of the Federation to swear to these facts.
OATH TAKEN
The Swearing is done before me this………………………….day…………………………
COMMISSIONER OF OATH
SECTION B
1. PLEASE USE ANOTHER ANSWER BOOKLET FOR THIS SECTION
2. QUESTION 4 IS COMPULSORY
3. ONE OTHER QUESTION FROM THIS SECTION SHOULD BE ATTEMPTED
QUESTION 4 (COMPULSORY)
(A) Mohammed Dogo was arraigned before Jos High Court for the offence of culpable homicide punishable with death. When the charge was read to him and he was asked whether he understood it, he said, he did but that he did not commit the offence but was away to Abuja for submission of an application at the Federal Civil Service Commission on the fateful day. This explanation was not investigated by the Police. A search was conducted on the accused’s house and forged international passport of various countries were recovered. Furthermore, computers belonging to the Federal Ministry of Information were also retrieved from his house. When he was interrogated, Mohammed could not explain how he came about these items.
After the counsel for the accused closed his defence, the prosecutor, a State Counsel rose to address the court. The defence counsel objected that he had no right to address the court first. The court sustained the objection and the defence counsel addressed the court. The prosecutor then rose to reply. The trial judge refused to allow him, noting that he had no right of reply.
The accuded was found guilty of the offence and was sentenced to life imprisonment because he was a first offender. In addition, he was to be given ten strokes of the cane.
With judicial and statutory authorities, answer the following questions: –
(i) What evidence will the accused need to adduce for his defence of alibi to be sustainable. And what is the effect of not investigating the claim of alibi by the Police?
(ii) What is the legal effect of the ittems recovered from the House of the accused.
(iii) What is the validity of the refusal of the Judge to allow prosecution to reply to the address of the defence.
(iv) What is the propriety or otherwise of the sentences the court passed on the accused?
(B) (i) List five factors that a court may consider when granting an application for bail
(ii) Draft a motion for bail of Mohammed Dogo without a suporting affidavit.
(iii) Assuming that Mohammed Dogo wants to appeal against his sentence, draft the omnibus ground of appeal.
QUESTION 5
Alhaji Wilnot Biu was the Manager of Crocodile Microfinance Bank, Lugbe, Abuja. The Divisional Police Officer ASP Zokwa Lekwot received a report that Alhaji Wilnot Biu had embezzled the Bank’s money in his care, in the sum of N200,000,000.00 (Two Hundred Million Naira Only). The DPO immediately issued a serach warrant and gave it to Sergeant Job Omole and Corporal Hassan Hammed to search Alhaji Biu’s premises. When the two Policemen got to the premises, they met Alhaji biu and he (suspects), requested to search the policemen first before his house could be searched. The policemen shot at the iron door and forced it open. They then entered the premises and searched the whole house during which the following items were found.
i N100,000,000.00
ii $20,000 (USD)
iii 10,000 Ghana Cedis
The body of Hajia Adama Bius was searched and 14 kilograms of substance suspected to be heroin was found inside her underwear. Alhaji Biu and Alhaja Biu were thoroughly beaten by the Policement. They were also handcuffed and brough to the Police station in Lugbe. Every efforts made by Mr. Ben Ojinga, their lawyer to interview his clients and secure their bail was turned down by the Police.
After being locked up at Lugbe Police Station, the suspects were finally arraigned before the Chief Magistrate Court, Lugbe, Abuja for stealing, money laundering and unlawful possession of illicit drugs.
Comment on the following with the support of statutory and case authorities; –
i The validity of the issuance of a search warrant for the arrest of the suspects
ii The request of the suspects to first search the policement before they conducted the searches of the suspect’s house.
iii The action of the policemen, forcefully entering the house of the suspect
iv The search of the body of Alhaja Biu
v The admissibility of the items found in the suspect’s house
vi The beating and handcuffing of the suspects
vii The denial of the suspects of police bail; and the denial of access of the suspects to their Counsel.
viii The validity of the charge and the jurisdiction of the court to entertain same.
ix Two days after their arrest and detention in Police custody, your clients instructed you to take all available legal steps towards their release. What actions would you take as Counsel.
QUESTION 6
Maryam was tried at the Kano State High Court for the offence of culpable homicide punishable with death. The prosecution had called three witnessess establishing that Maryam committed the offence; and just before the conclusion of the prosecution’s case, the charge sheet was amended to include a second charge of Arson.
As soon as the new charge was read, the Judge promptly recorded a plea of not guilty and continued with the trial. At the conclusion of prosecution’s case, the defence counsel called four witnesses. It was later discovered by the prosecuting counsel that the two remaining defence witnesses had been in court from the start of trial. The prosecuting. Counsel subsequently made an application to the Judge to prevent the two remaining witness from testifying. The application was granted by the Honourable judge. When it was the turn of Maryam to testify, the accused opted to do so from the dock and was later cross examined by the prosecuting counsel. Maryam was eventually convicted and sentenced to death. In the course of her appeal three months later, it was discovered that she was four months pregnant. Her appeal was dismissed and the Court of Appeal affirmed the decision of the lower court.
Answer the following question with the aid of statutory and judicial authorities:-
(a) Was the trial Judge right in recording a plea of not guilty for the accused? Give reasons for your answer
(b) State the procedure after amending a charge sheet by the court.
(c) Was the application preventing the two witnesses from testifying right in law? Give reasons for your answer
(d) Discuss the cross examination by the prosecuting counsel
(e) Was the Appeal Court right in affirming the decision of the lower court?
Give reasons for your answer
CRIMINAL LITIGATION
BAR PART 11
MARKING SCHEME
MAY 2009
SECTION 1
Question 1
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA ( ½ mk)
CASE NO…..( ½mk)
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA… COMPLAINANT
AND
1. Torkula Chukwumerije ]
2. Adakole Ademola ] ACCUSED PERSON
3. John-Magnus Piu
4. Idris Idoko
5. Theophilus Abubakar
6. Amina Pulloway
7. Mary…….
8. Chief Maza Maza ] (1mk)
1st CHARGE
That you, Torkula Chukwumerije, Adakole Ademola, Joh-Magnuus Piu, Idris Idoka Theophilus Abubakar and Amina Pulloway, on or about the 5th day of April, 2009 at No. 55 SCC Road, Bwari within the Bwari Judicial Division agreed to do an unlawful act to wit, to commit theft and thereby commtted an offence punishable under Section 97(2) of the Penal Code Act (1mk)
2nd CHARGE
That you, Torkula Chukwumerije, Adakola Ademola, John-Magnus Piu, Idris Idoko, Theophilus Abubakar and Amina Pulloway, on or about the 8th day of April, 2009 at the Made-in-Nigeria Supermarket, No. 55 SCC Road Bwari within the Bwari Judicial Division committed theft of N150,000.00 (property of Made-in-Nigeria Supermarket) and thereby committed an offence punsihable under Section 287 of the Penal Code Act. (1mk)
3rd CHARGE
That you, Torkula Chukwumerije, Adakola Ademola, John-Magnus Piu, Idris Idoko, Theophilus Abubakar and Amina Pulloway, on or about the 8th day of April, 2009 at the Made-in-Nigeria Supermarket, No. 55 SCC Road Bwari within the Bwari Judicial Division committed theft of a Camcorder (property of Made-in-Nigeria Supermarket) and thereby committed an offence punsihable under Section 287 of the Penal Code Act. (1mk)
4th CHARGE
That you, Torkula Chukwumerije, Adakola Ademola, John-Magnus Piu, Idris Idoko, Theophilus Abubakar and Amina Pulloway, on or about the 8th day of April, 2009 at the Made-in-Nigeria Supermarket, No. 55 SCC Road Bwari within the Bwari Judicial Division committed theft of one Samsung Ipad (property of Made-in-Nigeria Supermarket) and thereby committed an offence punsihable under Section 287 of the Penal Code Act. (1mk)
5th CHARGE
That you, Torkula Chukwumerije, Adakola Ademola, John-Magnus Piu, Idris Idoko, Theophilus Abubakar and Amina Pulloway, on or about the 8th day of April, 2009 at the Made-in-Nigeria Supermarket, No. 55 SCC Road Bwari within the Bwari Judicial Division committed theft of one Toshiba Laptop Computer (property of Made-in-Nigeria Supermarket) and thereby committed an offence punsihable under Section 287 of the Penal Code Act. (1mk)
6th CHARGE
That you, Torkula Chukwumerije, Adakola Ademola, John-Magnus Piu, Idris Idoko, Theophilus Abubakar and Amina Pulloway, on or about the 8th day of April, 2009 at the Made-in-Nigeria Supermarket, No. 55 SCC Road Bwari within the Bwari Judicial Division committed theft of one Palm-top Computer (property of Made-in-Nigeria Supermarket) and thereby committed an offence punsihable under Section 287 of the Penal Code Act. (1mk)
7th CHARGE
That you, Torkula Chukwumerije, Adakola Ademola, John-Magnus Piu, Idris Idoko, Theophilus Abubakar and Amina Pulloway, on or about the 8th day of April, 2009 at the Made-in-Nigeria Supermarket, No. 55 SCC Road Bwari within the Bwari Judicial Division committed theft of one DSTV Decorder (property of Made-in-Nigeria Supermarket) and thereby committed an offence punsihable under Section 287 of the Penal Code Act. (1mk)
8th CHARGE
That you, Chief Maza Maza on or about the 8th day of April, 2009 at Bwari within the Bwari Judicial Division dishonestly received of 1 Camcorder (Property of Made-in-Nigeria Supermarket) and thereby committed an offence punishable under Section 317 of the Penal Code Act. (1mk)
9th CHARGE
That you, Chief Maza Maza on or about the 8th day of April, 2009 at No 22 Law School Road Bwari within the Bwari Judicial Division dishonestly received of 1 Samsung i-pad (Property of Made-in-Nigeria Supermarket) and thereby committed an offence punishable under Section 317 of the Penal Code Act. (1mk)
10th CHARGE
That you, Chief Maza Maza on or about the 8th day of April, 2009 at No 22 Law School Road Bwari within the Bwari Judicial Division dishonestly received of 1 Toshiba Laptop Computer (Property of Made-in-Nigeria Supermarket) and thereby committed an offence punishable under Section 317 of the Penal Code Act. (1mk)
11th CHARGE
That you, Chief Maza Maza on or about the 5th day of April, 2009 at No 22 Law School Road Bwari within the Bwari Judicial Division dishonestly received of 1 Palm Top Computer (Property of Made-in-Nigeria Supermarket) and thereby committed an offence punishable under Section 317 of the Penal Code Act. (1mk)
12th CHARGE
That you, Chief Maza Maza on or about the 8th day of April, 2009 at No 22 Law School Road Bwari within the Bwari Judicial Division dishonestly received of 1 DSTV Decorder (Property of Made-in-Nigeria Supermarket) and thereby committed an offence punishable under Section 317 of the Penal Code Act. (1mk)
13th CHARGE
That you, Chief Maza Maza on or about the 8th day of April, 2009 at No 55 SCC Road Bwari within the Bwari Judicial Division dishonestly received the sum of N50,000.00 being part of teh stolen money from Made-in-Nigeria Supermarket and thereby committed an offence punishable under Section 317 of the Penal Code Act. (1mk)
Dated this…………………………………day of …………………………..2009 ( ½ mk)
……………………………………
Alkali Matto,
Principal State Counsel
For: Hon. Att.-Gen., Federal ( ½ mk)
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
(1MK)
CASE NO……………..( ½ mk)
BETWEEN :
FEDERAL REPUBLIC OF NIGERIA ………………………………..] COMPLAINANT
AND (1MK)
THEOPHILUS ABUBAKAR……………………………………………….] ACCUSED
CHARGE
That you, theophilus Abubakar, on or about the 8th day of Aprik 2012 at the Ushafa village, Bwari within the Bwari Judicial Dvision committed theft of one 2012 Model Toyota Camry and thereby committed an offence punishable under Section 287 of the Penal Code Act.
(1mk)
Dated this ……………………day of ……………………………2009……. ( ½ mk)
……………………………………
Alkali Matto,
(Principal State Counsel)
For: Hon. Att.-Gen., Federation.
(1 mk)
Question 1b
i) My Lord, the accused person has no case to asnwer and should not be called upon to open his defence, as this will amount to making him prove his innocence. For a submission of no case to answer to be upheld, one or all of the following must be shown;
(a) That the prosecution has failed to prove an essential element of the offence; or
(b) That the prosecution witnesses have been discredited under cross examination; or
(c) That the testimony of the prosecution is manifestly unreliable that no reasonable court can safely convict based on that testimoney – See Sections 286CPC, 191 (3) & (5) CPC
It is humly submitted that the prosecution has failed to prove an essential element of culpable homicide punishable with death, which is that the accused caused the death of the deceased.
We humbly urge this court to uphold the No case submission and discharge the accused person (2 marks)
ii) There is no legal effect of ailure of prosecution to call Alhaji Manda as a witness, although he was named in the list of witnesses, if prosecution is able to prove its case beyond reasonable doubt without his testimony. It is not mandatory for the prosecution to call all the witnesesse listed in it list of witnesses. See State v. Adaje
(1mark)
iii) Where a no case submission is to be over ruled, the rulling should be as brief as possible. However, the mere fact that the ruling is lengthy will not vitiate the ruling if it does not fetter the discretion of the court.
Odofin Bello v. State (1mark)
Question 2
i Court was wrong for failing to take fresh plea on the new charge. Procedure after amendment is as follows:
(a) The new charge must be read and explained to the accused person & 163, 164 CPA, 208 CPC, Youngman v. Police, Okoson v. State.
(b) He shall then be asked to take his plea on the fresh charge. If his consent was sought before trial in a magistrate court his consent shall be sought again whether he wants to be tried by the court.
(c) The court will ask whether he is ready to be tried on such charge.
(d) A note of the order for the amendment on the charge shall be endored by the court
(e) The accused or prosecutor may be granted adjournment if to proceed immediately will prejudice the accused will prejudice the accused person. Ss 164 (2) (3) CPA, 209, 210 CPC.
(f) The prosecution may be allowed to call or recall witnesesse after such amendment. Ss 165 CPA, 211 CPC (3 ½ marks)
ii As a prosecution counsel, I will not oppose the oral application for bail. Oral application for bail is allowed especially in magistrate courts. It may also be alloed in High Courts because being a bailable offence, the accused is entitled to bail. The prosecution has the onus to show why bail should not be granted to the accused. Ss 35, 1999 Constitution; 118 CPA, 341 CPC, Abiola v Federal Republic of Nigeria.
Seondly, where there is right or interest to be protected the court will not deny such rights merebly on the ground that proper form or prcedure was not followed. Folabi v Folabi, Bello v. A.G. Oyo State.
(2 marks)
iii No I would not. It is wrong.
The duty of a defence counsel is to prosecute the case of his client by all fair or honourable means, but is not allowed to stand as surety for bail Rule 37(1) RPC expressly forbids a lawyer from standing or offering to stand bail for a person he is defending or appearing for.
Therefore the defence counsel was wrong to stand for the accused persons.
(2marks)
iv The magistrate was wrong to have overruled the defence’s counsel objection. The accused person in his defence has three options opened to him.
He can make statement from the dock; He can move to the witness box and be sworn and give evidence; The accused may elect to say nothing at all in his defence, which means he rested his case on that of the prosecution
In the present case the accused persons made statements from the dock.
They were not witnesses in their own case and were not sworn.
Therefore the prosecution is not conferred with any right to cross examine them as he was allowed to do in the present case. The magistrate erred in law to have allowed cross examination of accused persons.
Sections 287(1)(a) CPA, 244 (1) ACJL, Adiro v. State, Akpan v. The State, Jasiah v State; Asake v. The State; Kajola v COP.
v I will file my notice of appeal at registry of the magistrate court, which is the trial court.
(1 mark)
a.
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
(NOTICE OF APPEAL) ( ½ mark)
HAMZA DAMED ……. APPELLANT
V ( ½ mark)
COMMISSIONER OF POLICE …….. RESPONDENT
To the Registrar of the above court,
This is to give you notice of appeal against the conviction/sentence in this case
Dated………………………….day……………….of……………….2009 ( ½ Mark)
HAMZA DAMED
24, Borno Way, Lagos
( ½ Mark)
(Two notices are required, however students should be marked fully for one notice)
(b) It must be filed within 30 days from the day judgmenet was delivered by the magistrate court if it is against sentence of caning it must be within 15 days. Ss. 284(1) CPC 58, 69 MCL Lagos 2009. (1 Mark)
(c) The trial Judge erred in law by failing:
1. To take fresh plea from the accused persons after the amendment of teh charge.
2. The trial Judge erred in law by allowing the cross examination of the accused person even though they gave their statements from the dock.
3. The decision of the court is unreasonable, unwarranted and cannot be supported by teh evidence. (1 ½ marks)
Question 3.
a. Question 1 is a leading question. It is allowed in examination in chief because it is introductory. (2marks)
b. The possible objection is that the question is a leading question (1mark)
c. Yes, the trial judge has discretion to order a leading question to be asked since the issue is not in dispute. (1mark)
d. (i) Why did you go to the Curtis Bar on 20th April, 2011?
(ii) Did you find anything there?
(1mark)
e. It is hearsay evidence
Hear say evidence is ordinarily inadmissible except it comes within known exceptgions. In this case, it is inadmissible because it is not within the exception such as dying declaration or resegestae. (2marks)
Question 3b
IN THE HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
(1MK)
BETWEEN :
FEDERAL REPUBLIC OF NIGERIA …………………………]COMPLAINANT/RESP.
AND
ALARAPE UGOCHI……………………………………………….] ACCUSED/APPLICANT
(1mark)
COUNTER-AFFIDAVIT
I, Insp……………………………., Nigerian Citizen of No. 23, Nnamdi Azikiwe boulevard, Gwarimpa, Abuja, do hereby amek oath and state as follows;
(1mk)
1. That I am an officer of the National Drug Law Enforcement Agency, Headquarters, Abuja and by virtue of my position, I am conversant with the facts of this case
2. That I have the authority of the Honourable Attorney-General of the Federal and that of my employers to depose to this counter-affidavit.
3. That the affidavit deposed to by the applicant in support of his application for bail has been shown to me by the office of the Attorney-General of the Federation to peruse and respond as appropriate.
4. That virtually every statement of fact in the said affidavit is false and hence, this counter-affidavit.
5. That I was posted to the Nnamdi Azikiw International Airport on the 10th March 2012.
6. That I personally arrested the applicant on the 10th March, 2012 with narcotic substances while at my duty post at the above mentioned Airport.
7. That I know as a fact that the accused /applicant is standing trial for exporting narcotic substances.
8. That upon arrest of the applicant, I personally took the substances to our Laboratory for necessary chemical tests and the substances proved positive. Attached herewith is a copy of the Report of the Government Chemist marked as Exhibit 1.
9. That some time ago while in our custody, the applicant complained of ill-health and I referred him to our in-house Doctor who examined him, and after some tests, certified him healthy. Attached herewith and marked as Exhibit 2 is a copy of the Doctor’s Report.
10. That when we have any case where the In-house clinic cannot handle, we refer such cases to the National Hospital, Abuja with whom we have a working understanding to attend to our difficult health cases. A copy of the Memorandum of Understanding between the NDLEA and the National Hospital, Abuja is now shown to me and attached herewith as Exhibit 3.
11. That I make this counter-affidavit in good faith believing same to be true and by virtue of the Oaths Act.
(3mks)
…………………………
DEPONENT ( ½ mk)
SWORN to at the Federal High Court Registry,
Abuja, this ………………….day of …………………2009
( ½ mk)
BEFORE ME
COMMISSIONER FOR OATHS
( ½ mk)
COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
BAR PART II
CRIMINAL LITIGATION MARKING SCHEME
MAY 2009
SECTION 2
QUESTION 4
i) For a defence of alibi to succeed, the accused or his counsel must not just allege that the accused was not at the scene of crime, but he must show that because he ws at another place, it was impossible for him to have been at the scene of the crime at the material time when the crime was alleged to have been committed. The accused can also call witnesses to support the alibi calim and give particulars of his whereabouts.
Yanor v The State, Garba v The State. 3marks
Failure of the police to investigate the claim of alibi is detrimental to the case of the prosecution. 2marks
ii) Other illegal items recovered during the course of a search will be adminssible where they are relevant to the other offences.
Reynolds v Commissioner of police for the Metropolis. Consequently the items seized in the accused’s house will be admissible in evidence notwithstanding that they were not part of the items specified in the warrant.
Musa Sadau v The State, Karuma v Queen 2marks
iii) The judge erred in law by refusing to allow prosecution counsel to reply. It is trite law that where a prosecutor is a law officer he will always have a right of reply to the address of the defence unless he waives such right.
Section 202 CPA, section 243 CPC, Adamu v AG
Edo State, Okpegboro v State.
iv) Culpable homicide punshable with death is a capital offence and the mandatory punishment for such offence under the law is death sentence. Where a maximum punishment for an offence is mandatory, the court cannot on its own volition reduce the sentence. In this case the imposition of life imprisonment on the offender istead of death sentence is a nullity
Section 362(1) CPA, Kalu v The State. 2marks
QUESTION 4 B
i) Below are some factors that a court will take into consideration when faced with application for bail:
(a) The likelihood of the accused appearing to take his trial.
Dantata v COP, Danbaba v State
(b) Likelihood of the accused committing another offence while on bail
R v Jamma
(c) Criminal record of the accused
Eyu v The State, Onuigbo v COP
(d) The nature of the crime and the severity of the punishment
Abacha v The State, Bamaiyi v The State
(e) Whether the accused, if granted bail will interfere with the investigation of the case against him
(f) The prevalence of the offence
Bamaiyi v The State, Felix v The State
(g) Health conditions of the accused
Fawehinmi v The State, Ani v The State (1mk each for any five point) 5marks
ii)
IN THE HIGH COURT OF PLATEAU STATE
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS
1mark
CASE NO ……….. ½ mark
BETWEEN
THE STATE ……. Complainant/Respondent
AND ( 1mark)
MOHAMMED DOGO …….. Accused/Applicant
MOTION ON NOTICE ½ mark
BROUGHT PURSUANT TO SECTION 341 (30 CPC, SECTION 35 CFRN 1999 AND UNDER THE INHERENT JURISDICTION OF THE COURT . ½ mark
TAKE NOTICE that this Honourable Court will be moved on……….day of …….2012 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel on behalf of the accused/applicant may be heard praying the Cour for the following, order.
An order admitting the accused person to bail pending the determination of the trial
And for such other order or orders as this Honourable Court may deem fit to make in the circumstances 2marks
Dated this …………………………………… day of ………………………2009 ½ mark
F. E. Johnson ½ mark
Applicant’s Counsel
4, Dogo Street
Jos.
ON NOTICE
The Respondent
Attorney General’s Office
Ministry of Justice
Jos
½ mark
iii) The decision of the Honourable Court is unreasonable, unwarranted and cannot be supported by evidence. 2 marks
QUESTION 5
i) The issuance of the warrant of arrest by the DPO is unlawful. A warrant of arrest can only be issued by a judge, magistrate or justice of the peace.
2marks
ii) The suspect has a right to request to search the policemen before the police conduct the search of his property. It was wrong for the policemen to have refused. 1mark
iii) The action of the policemen in forcefully entering the house of the suspect to conduct the search is lawful. Where there is resistance to a search, the police can lawfully break in the break out of the premises.
Section 112 CPA 2marks
iv) The search of the body of Alhaja Biu by the policemen was unlawful. The body of a woman can only be searched by another: woman
Section 44 (3) CPC, section 6 (2) CPA. 1mark
v) The items found in the suspect’s house are admissible in evidence because the basis of admissibility is relevance
Musa Salua v State, Kuruma v R 2marks
vi) It is unlawful to beat and handcuff the suspects since there was no resistance to the arrest by the suspects.
Section 37 CPC 2marks
vii) Where suspects are arrested and detained by the police, they should be arraigned before a court of competent jurisdiction if there is such court within 40km radius, within 24 hours and if there is no such court within that radius, within 48 hours. If tehy cannot be arraigned within this time, they should be granted police bail.
Eda v COP
It was wrong to deny the suspects access to their counsel
Section 36 (6) CFRN 1999. 2marks
viii) The Chief Magistrate Court in Lugbe, Abuja can try the accused persons for theft and not stealing. It lacks jurisdiction to try the accused persons for money laundering and unlawful possession of illicit drugs. It is the Federal High Court that has jurisdiction. 2marks
ix) Apply to Court for enforcement of the Fundamental Human Rights of the suspects. 1mark
QUESTION 6
(a) The trial Judge was wrong in recording the plea of not guilty for the accused person without the accused personally taking his plea.
R v Pepple 2marks
(b) (i) The new charge must be read and explained to the accused person
Section 163. CPA. Section 208 CPC. Youngman v Plice, Okosun v State.
(ii) The accused person shall take his plea
(iii) The Court will ask whether the accused person is ready to be tried on such charge and an endorsement of the new charge is made by the Court.
(iv) The accused or prosecutor may apply for adjournment if to proceed immediately will prjudice the accused person.
(v) The prosecutor amy apply to call or recall witnesses after such amendment.
Section 165 CPA, 211 CPC. 5marks (1mark for each point).
(c) The application preventing the two witnesses from testifying is wrong. The witness can testify in Court only that the Court will attach little or no weight to the evidence of the witness 3mark
(d) The cross examination by the prosecuting counsel is wrong. The witness cannot be cross-examined if they gave evidence from the dock 2marks
(e) The Appeal Court was right in affirming the conviction but wrong in affirming the sentence of the lower court. The sentence of death should be varied to life imprisonment. 3marks
