2012 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN CRIMINAL LITIGATION
COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
BAR FINAL EXAMINATIONS
TUESDAY 7TH AUGUST, 2012 TIME: 3 HOURS
THIS PAPER IS DIVIDED INTO 2 SECTIONS AND 2 ANSWER BOOKLETS ARE PROVIDED. QUESTIONS 1 AND 4 ARE COMPULSORY. ONE OTHER 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. Uche Mohammed, Ademola Okpara and Wilson Johnson agreed to visit the house of Alhaji Mohammed Duku, a political heavy weight of the Trade Party of Nigerian (T.P.N) to set their own share of the Largesse shared to T.P.N supporters for the success of the party in the last gubernatorial elections. On 15th July, 2012 at about 8.00p.m, the trio got onto a motor-bike owned by one of them and rode to the house of Alhaji Mohammed Duku at No. 25, Power House Crescent, Maitama, Abuja. The house, was securely locked. Uche climbed the wall and, skillfully marked a hole on the roof and found his way into Alhajis bedroom through the ceiling. He opened the door for Ademola to come in, while Wilson stood guard on the motor-bike at the gate.
They forced the safe in the room open and saw a bag containing N3,000,000.00 which they took. They joined Wilson outside and within minutes, they were already at the Sheraton Hotels and Towers where they shared their loot in equal proportions. They clicked glasses over a bottle of Champaign and by 11.00p.m., they bade each other good night. Uche put up at the Sheraton; Wilson went to Rockview Hotels; while Ademola checked into Transcorp Hilton. At about 3.00a.m on 16th July, 2012, there was a disagravagent life-style. Uche picked up his shoe and hit Maryam with it on her arm causing her a dislocation. Meanwhile, few days after the incident, the three men were arrested and the Honourable Attorney-general of the Federation has directed that they be prosecuted.
Draft the charges
Section 287 Penal Code Act.
Whoever commits theft shall be punished with imprisonment for a term which may extend to five years or with fine or with both.
Section 97(1) Penal Code Act
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.
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.
Section 246 Penal Code Act.
Whoever, except in the cases provided for by Section 244, voluntarily causes hurt, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to N100. .
Section 353 Penal Code Act
Whoever commits lurking house trespass or house breaking shall be punished with imprisonment for a term which may extend to two years and shall be liable to fine.
Answer the following questions:
1B. Assuming that the Attorney-General wants to amend the charge after the pleas of the accused persons have been taken, can he do it?
1C. If the charge you have drafted above is amended, mention the steps to be taken thereafter.
1D. Assuming you are the defence counsel to Uche and Ademola and the Attorney-General decides to enter a nolle-prosequi in respect of Wilson, what would be your reaction?
1E. What is the consequence if the nolle-prosequi was entered by the Attorney-General through the Deputy Director of Public Prosecutions prosecuting the offenders?
1F. Abubakar Mailafia was just arrested in connection with the bombing of the Salvation House of Worship, Zaria, Kaduna State on 5th April, 2011. He confessed to the commission of the crime as well as being a member of the Ringo boys sect.
Draft an application to the Chief Judge of the High Court of Kaduna State, seeking his leave to prefer the charges under the appropriate sections of the C.P.C Law of the State. You are not required to draft the Charge or the proof of evidence.
Bayo Akintunde would soon be arraigned before the High Court of Lagos State on a two-count charge of Arson and Stealing. You have just been consulted in your position as a Legal Practitioner by Bayos uncle Mr. Johnson Akintunde to defend the accused person in the case. Mr. Johnson Akintunde handed the following documents to you to facilitate your preparation for the defence;
a. A copy of the information
b. A copy of the state of Bayo to the police
c. A summary of evidence of the witnesses sought to be called by the prosecution.
d. A copy of the list of exhibits sought to be tendered at the trial.
Mr. Johnson Akintunde informed you that the above documents were served on the accused who had been in prison custody since the last five months and further informed you that the accused was informed through the process of court that the Director of Public Prosecutions of Lagos State has sought and obtained the consent of a High Court Judge to file the information. You were further instructed by Mr. Johnson to help the family secure the freedom of the accused person once the trial commenced.
Now answer the following quesiton citing the relevant judicial and statutory authorities:
1. Assuming after going through the document given to you by Mr. Johnson Akintunde, you find that the documents did not disclose a prima facie case to warrant the initial consent granted, what preliminary step would you take?
2. Assuming you intend to apply to the High Court to release the accused person on bail, what would be the mode of bringing the application?
3. What are the salient facts to be deposed to in the affidavit in support of your application?
4. Assuming your application is refused by the trial court, what further step will you take to assist the accused person?
5. Assuming the case is before the Igbosere Chief Magistrates Court where an initial bail application has been refused, what further opportunity has the accused and how would he go about it?
6. Assuming the Director of Public Prosecutions intends to oppose the bail application brough before the High court of Lagos State, what steps must he take?
7. Assuming the Court is inclined to admit the accused to bail, what are the likely terms to which his bail may be granted considering the nature of the charge against him?
8. Assuming the terms to which a Magistrate granted the bail are onerous what further remedy does the accused have?
Mariam was charged at the Maiduguri High Court for the offence of Culpable homicide punishable with death for stabbing her husband. After calling two witnesses in the case, the Prosecutor without the leave of Court amended the charge sheet to include a second charge of Arson and this was granted by the judge. As soon as the new charge was read to the accused, the Judge promptly entered a plea of not guilty and trial continued. At the conclusion of the Prosecutions case the defence counsel called three witnesses but it was later discovered that two more remaining witnesses of the defence had been in Court from the start of the trial. These two witnesses were prevented from testifying on the application of the prosectuting counsel.
Mariam, the accused person opted to testify from the dock and was later cross-examined by the Prosecutor.
Two days later, during the address stage by both counsel. The Honourable Attorney-General of borno State entered a nolle prosequi through the Director of Public prosecution but because there was no stated reason, the nolle was rejected and the trial continued.
Mariam was eventually convicted and sentenced to death.
With the aid of Judicial and Statutory authorities, answer the following questions:
a. Was the ameneded Charge Sheet by the Prosecutor lawful? Give reason for your answer.
b. Was the trial Judge right in recording a plea of not guilty for the accused person? Give reason for your answer.
c. Comment on the failure of not allowing the two witnesses to testify by the Prosecutor
d. What is the effect of the cross-examination by the Prosecutor?
e. Was the Judge right in refusing to accpet the Nolle Prosequi?
f. Draft the death sentence clause that the Court will pronouce on Mariam.
PLEASE USE ANOTHER BOOKLET FOR THIS SECTION.
QUESTION 4 IS COMPULSORY. ONE OTHER QUESTION FROM THIS SECTION SHOULD BE ATTEMPTED.
In a trial for the murder of the gubernatorial candidate of the Save-us-Party in the last general election, Chief Ologbenla Kinko, two accused persons, Mike Jagger and Samson Ikpo, were arraigned on two counts of conspiracy to murder and murder punishable under sections 324 and 319 of the criminal code, Laws of Ondo State respectively in the High Court, Akure.
The first prosecution witness was the Investigating Police Officer. He was led in evidence in-chief by prosecuting state Counsel.
1. Prosecuting Counsel: You are inspector Ale Momoh attached to the Akure Police Station and Investigation Police officer in this case.
Answer: Yes Sir.
2. Prosecuting Counsel: Do you know the defendants
Answer: Yes, I do
3. Prosecuting Counsel: Can you recall the 4th of April, 2010
Answer: Yes, my Lord
4. Prosecuting Counsel: What happened?
Answer: A case of murder was reported at the Police Station on 4th April, 2010. I investigated and arrested the two defendants. They made statements in Yoruba Language which I recorded in English. These are the statements made by them.
5. Prosecuting Counsel: I seek to tender the statements made by the two defendants which was recorded in English language in evidence.
1st defendants Counsel: I object, My Lord
Court: Objection over ruled. Do not waste the time of the court statement recorded in English language but made in Yoruba Language by the 1st defendant is admitted in evidence as Exhibit A
6. Prosecuting Counsel: What did 1st defendant say in Exhibit A?
Answer: He said it was 2nd defendant that contacted him and both of them killed Chief Ologbenla Kinko.
7. Prosecuting Counsel: After obtaining the statements, did you do anything?
Answer: Yes my Lord. I investigated and was told by Mr. Alex, a neighbor of 2nd defendant that he was told by Mr. Dudu that the 1st defendant told him that it was Chief Ojimba, the political opponent of Chief Kinko that engaged both of them to kill Chief Kinko.
2nd Defendant Counsel Objection my Lord, this evidence…..
Court: Objection overruled. You may continue witness.
8. Prosecuting Counsel: what next?
Answer: I took photographs of the deceased in his pool of blood.
These are the photographs.
9. Prosecuting Counsel: My Lord, I seek to tender the photographsin evidence.
1st defendant Counsel: I object to the admissibility of these photographs in evidence. No proper foundation.
2nd defendant Counsel: I associate myself with the submission of my coleague.
Court: Photographs are admitted in evidence as Exhibits B B2
10. Prosecuting Counsel: What else did you do?
Answer: Upon interrogation, the 2nd defendant stated that they were paid N5 million by chief Ojimba. They shared it equally: he paid his own into his account at Omega Bank. I obtained a statement of account from the bank.
11. Prosecuting Counsel: I seek to tender the statement of account in evidence.
2nd defendant Counsel: I object, no proper foundation.
Court : Statement of account admitted in evidence as Exhibit C.
Answer the following questions:
(a) Is question 1 allowed in exzamination-in-chief? Give reasons.
(b) Comment on the order of Court overruling the objection to Question 5.
(c) In numbered paragraphs, state how you will lay proper foundation to tender the statements of 1st and 2nd defendants.
(d) What is the legal implication of Question 6? When can the statement of 1st defendant be used against the 2nd defendant?
(e) What is the nature of the evidence in Question 7.
(f) What kind of questions are Questions 8 and 10.
(g) Lay a proper foundation to admit the photographs in evidence in Question 8.
(h) Lay a proper foundation to admit the statement of Account in Question 11 in evidence.
The trio of Edem, Obi and Chika are undergraduate students of University of Benin, Bening City. The trio live in a one roomapartment outside the University campus. Lillian, a female classmate of theirs lives close by Unkown to Lillian, and in pursuit of an evil plan, her three make class mates invited her to their apartment ostensibly for a class discussion. On getting to the one room apartment, the three boys raped Lillian in turns Lillian started bleeding profusely and she reported her ordeals in the hands of her three class mates to her parents. Upon report to the Police, Edem, Obi and Chike were arrested. In the course of investigation, Edem confessed to the IPO, Sgt. Peters, admitting that he and his two friends indeed raped Lillian.
During the trial, Obi denied participating in the rape alongside the other friends of his. He further stated in his defence that Lillian is a girl friend to Edem and that James Obega, a Law Student who was notcalled to testify had earlier informed him that Edem was in the company of Lillian on the alleged date. In his testimony, Obi claimed the offence of rape could have been committed by Edem in the course of his outing with Lillian. Edem has earlier been convicted for the rape of a secondary school girl. During the trial, a nole prosequiwas entered on behalf of Chika who was subsequently used as a prosecution witness.
Consider the following issues:
(i) Is the confessional statement of Edem in this case admissible against Obi?
(ii) If in the course of the trial, Edem says he did not make any confessional statement to the IPO, the investigating Police Officer, how would the trial court handle such a defence?
(iii) Would your answer be different from (ii) above if Edem had agreed that he made the confessional statement to the Police but that the IPO and his mates at the Police station gave a serious beating of his life before he was compelled to make the statement?
(iv) Is Obis evidence of previous conviction admissible against him?
(v) Assuming the prosecution is entitled from the facts of this case to give evidence of previous conviction against Obi, state the first step he would take to prove the previous conviction of Obi.
(vi) What other options are available to the prosecution to prove Obis previous conviction?
(vii) Is the evidence of Obi that Edem went out with Lilian on the alleged date of the offence admissible in this case? Give reasons for your answer?
(viii) Why is evidence of previous convictions generally excluded in law?
(ix) Can the court convict Edem and Obi on the evidence of Chika in this case?
(x) Assuming the Attorney General of Edo state entered a nolle prosequeon behalf of the trio thereby terminating the entire case, what are the remedies available to the parents of Lillian? How effective are these remedies if any?
Adamu Okechukwu was arraigned before the Nassarawa State High Court on the 10th July, 2011 for the offences of theft contrary to Section 287 Penal Code and Criminal assault contrary to Section 264 of the same Code. The accused pleaded not guilty. The prosecution Counsel asked for a date for hearing which was granted. After four (4) adjournments at the instance of the prosecution and no witness was called, the defence Counsel, on 5th January, 2012, made a no case submission on behalf of the accused. After listening to arguments on both sides, the Learned trial Judge, in a 25 page ruling overruled the no case submission essentially on the following grounds:
(a) That the offence of theft has became an embarrassment to the state and must be discouraged.
(b) That assault is a threat to life; and
(c) That the defence counsel has not shown that the accused has no case to answer.
After the ruling, Learned defence Counsel, before storming out of the Court in anger, addressed the Judge;
Excuse me, this ruling is unacceptable to us and we are going to exerise our constitutional right of appeal.
Now, answer the following, questions:
(a) Was the no case submission rightly made?
(b) Was the Judge right in over ruling the no case submission on the two counts?
(c) Comment on the reasons given for overruling the no case submission on the two counts.
(d) Comment on the conduct of the prosection Counsel in this case.
(e) Comment on the length of the ruling on the no case submission.
(f) If the time was ripe for the no case submission, what are the condition that the court ought to consider in the submission?
(g) If the No case submission is up held, what is the effect on future proceedings?
(h) Comment onthe mode of address adopted by defence counsel before he left the court room. State the right mode of address.
(i) Comment on the comments made by the defence counsel and his conduct of leaving the court in anger.
(j) If the accused was aggrieved by the ruling on the no case submission, what option(s) was open to him?
(k) What application should the defence make after the prosecution failed to call witness despite four (4) adjournments?
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
THE STATE ………………………………………………………………….. COMPLAINANTS
1. UCHE MOHAMMED
2. ADEMOLA OKPARA
3. WILSON JOHNSON …………………………………………. ACCUSED PERSONS
That you Uche Mohammed, Ademola Okpara and Wilson Johnson on 15th July, 2012 at about 8.45pm at No. 25, Power House Crescent, Maitama, Abuja, the house of one Alhaji Mohammed Duku, forced the safe in the room open and saw a bag containing N3,000,000.00 and took it thereby committed an offence contrary to section 287 of Penal Code Act.
That you Uche Mohammed, Ademola Okpara and Wilson Johnson on 15th July, 2012, at about 8.45p.m at the house of one Alhaji Mohammed Duku at No. 25, Power House Crescent Maitama, Abuja, while the said house was securely locked, climbed the wall and skillfully marked a hole on the roof and found your way into the Alhajis bedroom through the ceiling and also opened the door for the others to come in for the purpose of committing theft and thereby committed an offence contrary to section 353 penal Code act.
That you Mohammed Uche on 16th July, 2012 at about 3.00am at the Sheraton Hotels and Towers while having a disagreement with your fiancee, Mary Idoko, picked up your shoe and hit her with it on her arm causing her a dislocation thereby committed an offence contrary to section 246 Penal Code Act.
Dated this 7th August, 2012
U. O. OBASI ESQ
PRINCIPAL STATE COUNSEL
FOR THE ATTORNEY GENERAL
FEDERAL MINISTRY OF JUSTICE
Yes he can do it
1. The Court shall cause the amended charge to be read to the accused persons for the purpose of taking fresh plea. Section 163 7 164 CPA; 208 (2) CPC.
2. Either the prosecutor or the accused person is entitled to an adjournment if proceeding immeditely with the trial, or the amended charge, will be prejudicial to them.
3. A note of the order for amendment shall be endorsed on the charge, which in its amended form is deemed to be the original charge.
4. Either the prosecutor or the accused person may call or recall any witness who may have given Evidence to testify again.
The power of the Attorney General of the Federation or a State to institute, takeover or discontinue Criminal proceedings is an absolute one. This means that where two or more persons are alleged to have committed an offence; the Attorney General has the power to prosecute one or more of them and let one or more of them go . he is under no obligation to give reasons for exercising his discretion. Bagadu v FRN
In the instant case, I would not do anything based on the general principle of Law.
The Deputy Director of public prosecutions is a Legal practitioner and as such he can enter a nolle proseque on behalf of the Attorney General. However, he cannot do it orally, he must present the nolle proseque in writting duly signed by the Attorney General as it is only the Attorney General that can enter a nolle proseque orally.
MINISTRY OF JUSTICE
Our Ref: ………………………………………. Your Ref:………………………………
7th August, 2012
THE HONORABLE CHIEF JUDGE
APPLICATION TO PREFER A CHARGE FOR THE OFFENCE OF BOMBING A CHURCH IN ZARIA AGAINST ONE ABUBAKAR MAILAFIA PURSUANT TO SECTION 185 OF THE CRIMINAL PROCEDURE CODE
The above subject matter refers.
My Lord, in compliance with the rules we hereby attach the charge sheet, the unedited statement of the accused person made at the Police Station during Police interview, list of witnesses who will testify at the trial and proof of Evidence.
This is also to reliably inform your Lordship that this application has not been made to any other Court and no preliminary inquiry has been conduct in this matter.
We humbly urge Your Lordship to treat this application with favourable consideration.
HON. AG OF THE STATE.
The preliminary step to take is to prepare and file a no case submission and then address the Court on the no case submission.
The mode of bringing the application for bail will be by summons based on the provision of section 363 of the Criminal Procedure Act (CPA) which makes provision for a recourse to the practice and procedure of the High Court of Justice in England in criminal trial where there is a lacuna in the CPA as to the mode of application, and the procedure in England is by Summons.
1. That the accused person has been in prison for over five months without trial.
2. That the accused person will attend his trial without jumping bail
3. That the accused person has been sick in the prison as a result of lack of proper medical care and needs to be treated outside the prison walls
4. That the accused person does not have any criminal record against him.
5. That the accused person will not interfere with investigation while on bail
6. That the accused person have credible sureties to take him on bail
7. That it will be in the interest of Justice to grant him bail
By either applying for the bail of the accused person at a higher Court; or By applying for prerogative writ of Habeas Corpus at a higher Court.
The accused person can bring the same bail application at the High Court; or bring an application for prerogative writ of Habeas Corpus at the High Court Igbosere for the Magistrate Court to produce the accused person.
He must file a counter affidavit in opposition of the bail application and also his written address.
The terms of bail are
• Bail on self recognizance
• Bail on a bond for a fixed amount
• Bail on a bond with surety or sureties
• Deposit of money instead of bond.
The accused person may apply to the trial Court for the bail terms to be reviewed and if the trial Court refuses to review the term of bail, he can apply to a higher Court. Eyu v The State.
Where the accused has pleaded to a charge, the prosecutor can amend or alter the charge at any time before judgment but he must apply to the Court either orally or in writing for leave to amend. Section 208 CPC & section 163 CPA.
In the instant case, the amended charge sheet and the procedure for its amendment was unlawful because due process was not followed.
The trial judge was not right in recording a plea of not guilty for the accused person. The reason being that by virtue of section 215 of the CPA and section 187 of the CPC, the charge should be read over and explained to the accused person to accused in the language that he understands to the satisfaction of the Court before his plea can be taken and the judge must record the plea in the exact words that the accused person used.
The general rule is that where a witness has been put in the witness box to testify in evidence, all the other witnesses who are to testify in the same case are ordered to leave the Court and out of hearing. However if a witness who has not testified remains in Court, the Court has the discretion either to allow him testify or not but whether he testifies or not, the Court will attach less weight to his evidence.
In the instant case, it lies on the discretionary power of the Court whether to allow the witneesses to testify or not despite objection by the prosecuting counsel.
Where an accused person chooses to testify from the dock, he shall not be sworn on oath and as such he still can give an unsworn evidence and at the same time not be entitled to cross-examination.
In the instant case, the cross-examination of the accused person by the prosecutor is unlawful and as such a nullity.
The judge was wrong in refusing to accept the nolle prosequi as one of the powers conferred on an Attorney General is to discontinue a criminal trial against an accused person at his discretion without any obligation to expalin the reason for exercising such discretion. Bagudu v The FRN.
You are hereby sentenced to death by hanging by your throat until you are dead. May God have mercy on your soul.
Yes question 1 is allow in examination-in-chief
The reason being that leading questions are allowed on introductory matters and issues that are no longer in contention and question 1 is a landing question.
Where a counsel raises an objection during trial, it is the duty of the Court to find out or hear from the counsel the reason why he is raising objection before deciding whether to uphold or overrule such objection.
In the instant scenario, it was wrong for the judge to have overruled the counsel objection without knowing the reason for his objection.
1. Counsel should find out from the witness if he made any statement
2. Counsel seeks the leave of the Court to tender the statement before the Court.
3. The said statement will be shown to the adverse counsel for perusal and approval.
4. The Court will admit the statement and mark it as exhibit
5. Then Counsel can now ask questions on the said exhibit after which the Court will put it in the exhibit file.
The legal implication of question 6 is that such questions are not allowed because the evidence of an accused person is not binding on a Co accused and cannot ground his conviction as provided under the relevant provision of the Evidence Act.
The statement of the 1st defendant can only be used against the 2nd defendant if the 1st defendant has pleaded guilty to the charge and has convicted accordingly, then the Court may use his statement as an evidence against the Co-accused.
The evidence given to question 7 is hearsay evidence and they are not admissible. Subramanian v Public prosecutor
Question 8 and 10 are open questions.
My Lord the negatives of these photographs got lost at the studio where they were printed. The studio was attacked by hoodlums who made away with so many items from the studio and invariably the negatives were among the items stolen as informed me by the studio management. In the instant case, I urge my Lord to admit the printed photographs in the interest of justice.
My Lord I seek to tender the statement of Account which was issued to me by the Bank. My Lord under the relevant provisions of the Evidence Act, it is only the Bank that can produce the original bankers book if they are appearing as parties in an action.
The confessional statement of Edem in this case is not admissible against Obi as it is evidence of a co-accused.
The Court will still admit the Confessional Statement but however will consider the weight to be attached to the statement.
My answer will be different because in this case, voluntariness of the statement has become an issue and the Court will have to conduct a trial within trial to ascertain the voluntaries or involuntariness of the confessional statement before deciding whether to admit it or not.
Evidence of previous conviction is admissible against an accused person where it is necessary to prove such conviction for the purpose establishing commission of the offence against the accused. Section 248(1) Evidence Act
In the instant case Obis evidence of previous conviction is admissible against Edem based on the authority as highlighted above
The prosecutor shall seek the leave of the Court to tender the document (s) evidencing his past conviction for the purpose of the exhibiting them before admission.
• Production of certificate of conviction which must be signed by the register or other officer of the Court in whose custody is the record of the said conviction
• Production of a certificate signed by the Director of prisons or any other officer in charge giving details of the offence and conviction
• By calling witnesses to testify orally in the witness box
The evidence of Obi that Edem went out with Lillian is not admissible in evidence against Edem.
By virtue of section 37 of the Evidence Act, a hearsay evidence is not admissible where the said evidence is tendered for the purpose of proving the truth of the matter stated in it.
JAMB ORJI & SUBRAMANIAN V PUBLIC PROSECTION.
Because the previous convictioon of the accused person is not the fact in issue. The Courts are always warned not to deviate from the evidence tendered before it but only to determine issues based on the facts laid before it.
Evidence of Chika in this case cannot ground the conviction of Obi and Edem. This is because the effect of a nulle proseque serves as a mere discharge and not an acquittal and as such, the innocence or guilt of Chika has not been determined and as such his evidence against the other 2 cannot sustain conviction.
The parents of Lillian can only present a petition to the relevant authorities as the Attorney General has the right to discontinue a criminal case without giving the reason for exercising his discretion to discontinue the case.
The remedy is not effective in the sense that if is the constitution which confers such power on the Attorney General, there is nothing the parents can do about it not even the judge.
The no case submission was not rightly made. The reason is that a no case submission is made only after the prosecution has presented their case and the defence is of the belief that no prima facie evidence is made out against him.
On one had, the judge was right in overruling the no case submission because it was premature to present a no case submission when the prosecution has not presented his case against the defence.
On the other hand, the judge was very wrong in overruling the no case submission on the ground that he did not consider the salient factors as provided under section 286 of the CPA and section 191 (3) and (5) CPC.
Under relevant provisions of the CPA and CPC, if it appears to the Court that a case is not made out against the defendant saufficiently to require him to make a defence, the Court shall discharge him.
Also by Virtue of the practice note of Parker C. J. (England) issued by the Queen Bench Division of the High Court of England, a no case submission may be properly upheld.
a. Where there is no evidence to prove an essential element in the alleged offence; or
b. When the evidence adduced by the prosecutor has been so discredited as a result of cross-examination or is no manifestly unreliable that no reasonable tribunal could convict on it.
Emelo v The State
Therefore, in the instant case, the reasons given by the judge for overruling the no case submission are unfounded.
It is the duty of a counsel whether for the state or for the defence to be committed, dedicated and devoted to the cause of his client, Rule 14 RPC.
In the instant case, coming to Court on 4 good occassions only to apply for adjournament is the height of professional misconduct.
It has been held in plethora of cases that the Court in making a ruling on a no case submission should not make it to be too lengthy as that may fetter the discretion of the judge.
In the instant case, 25 pages for a no case submission is unnecessarily lengthy
i If it appears to Court that the case made out against the defendant is not sufficient enough to ask him to enter a defence
ii There is no evidence linking the defendant with the commission of the offence.
iii Where the evidence so adduced has been discredited in the cause of cross-examination that no reasonable Court or Tribunal can convict on such frivolous evidence.
It depends on whether the no case submission was rightly upheld or not. If it is rightly upheld, the effect is that the defendant shall be discharge and acquitted and he can successfully plead ultra fois acquit if he is arraigned on the same offence. But if the no case submission is wrongly upheld, it means that the defendant has a case to answer and the Court discharged him in error. However, on appeal the Court shall be ordered tot call him to enter his defence.
The defence counsel ought to have addressed the judge properly by saying My Lordand not excuse meas such words are insulting and amount to criminal contempt in the face of the Court.
It is the duty of a Legal Practitioner to uphold the dignity and respect of the Court no matter what his grievances against the Court are.
In the instant case, the action of the defence counsel by his comment and storming out of Court amount to a criminal contempt in facie curie (in the face of the Court) and is liable to face a criminal charge of criminal contempt and may even be tried by the judge against whom the contempt was committed.
The option that is either open to him is to appeal against the ruling of the Court or proceed with his case by calling his witnesses.
Presents application to stike out the case for want of diligent prosecution.