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23 Oct

2013 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN CRIMINAL LITIGATION

NIGERIA BAR FINAL EXAMINATIONS – PART II
CRIMINAL LITIGATION

TUESDAY, 10TH MAY, 2013 TIME: 3 HOURS

INSTRUCTIONS
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.

SECTION ONE

QUESTION 1 (COMPULSORY)
1A Chief Odunga Makun is a chieftain of a political party in Nigeria – The Democracy Party. During the last National Assembly polls held on April 16, 2011, he vowed that he must win the senatorial seat of the Osun South East Senatorial election in Osun State of Nigeria. He approached the Returning Officer and offered him the sum of N5 million as bribe and a promise to build him a house in his village. The Returning Officer rejected the offer and reported to the Resident Electoral Commissioner.

When his attempt to bribe the Returning Officer failed, Chief Makun recruited three notorious touts – Ijanla Ekun, Ajagun Mosco and Okoye Dudu and gave AK 47 rifles with instructions that they should seize the ballot box after the election and substitute with one already stuffed with thumb printed ballot papers. Anyone that attempts to stop them should be shot.

The three of them went to the Polling Station and in the course of taking the ballot box, the Polling officer tried to stop them but he was shot by Ijanla Ekun and he died instantly. Ajagun Mosco took the box and Okoye Dudu drove the get-away car. He hit a Youth Corper – Miss Damilola breaking her leg. All the three escaped.
Upon investigation, the three were arrested by the Police. They confessed that Chief Makun was the person that contracted them for the assignment. When Chief Makun’s house was searched, 3 other AK 47 rifles were recovered. All the suspects made statement under caution to the Police.
The Attorney General of Osun State intends to charge them to Court. As a Principal State Counsel, draft the charges.

THE LAW
SECTION 319 CRIMINAL CODE
(1) Subject to the provisions of this section any person who commits the offence of murder shall be sentenced to death
SECTION 355 CRIMINAL CODE
Any person who unlawfully assaults another and thereby does him harm is guilty of a felony and is liable to imprisonment for three years.

SECTION 124 CRIMINAL CODE
(1) Any person who does any of the following;
(b) directly or indirectly, by himself or by any other person on his behalf, corruptly makes any gift, loan, offer, promise, procurement or agreement or for any person, in order to induce such person to procure or to endeavour to procure the return of any person as a member of a legislative house or to an elective office or the vote of any voter at any election.
(4) Any person who commits the offence of bribery is liable on conviction to a maximum fine of N500, 000 or imprisonment for 12 months or both.

SECTION 27 THE FIREARMS ACT CAP. F28 LFN 2004
(1) Any person who contravenes any of the provisions of this Act specified in paragraphs (a), (b), and (c) of this section is guilty of an offence and liable on conviction (a) as to any offences under any of the following;
(i) Section 3 of this Act (which prohibits the possession or control of fire arms or certain categories); to a minimum sentence of ten years.
1B. Assuming during the trial of the accused persons on the charge you have drafted that Ijanla, Ajagun and Okoye admitted making the confessional but that they were promised freedom if they implicate themselves.
a. What possible objection will you as Counsel raise to the admissibility of the statements.?
b. How will the Court proceed thereafter?
c. Assuming all the accused persons denied making the statements, what will be the attitude of the Court?
d. If Okoye Dudu in his statement had denied being at the scene of the elections on that date but that he was in Lagos. What submission will you make as his Counsel?
e. What should be the duty of the Police thereon?
f. Draw up 4 questions you would ask if you were to interview Chief Makun at the Police State.
QUESTION 2
Chinwa and Chikwe were two jolly good friends selling motor vehicle spare parts at Onitsha market, Anambra State. On 29th September, 2010, Chinwa pleaded with Chikwe to give him a ride to Enugu Airport to enable him board a plane to Lagos to buy spare parts and Chikwe consented to the request. When they got to Oji River in Enugu State, Chikwe parked by the road side, brought out the vehicle jack and used it to hit Chinwa several times on his head until Chinwa became unconscious Chikwe also used a pen knife to stab Chinwa at the neck which led to Chinwa bleeding to death. Chikwe searched Chinwa’s body and found the sum of N300,000.00 in his pocket which Chikwe removed. Chikwe left Chinwa’s body by the road side and drove back to Onitsha.
On 26th October, 2010, Chikwe was arrested by the Nigeria Police at Asaba, Delta State where he was celebrating his 25th birthday with friends at Hotel De Grovey. Chikwe was detained in Police Cell till 25th March, 2011 when he was arraigned by the Police for the murder of Chinwa at the High Court, Asaba, Delta State.
The Attorney-General of Delta State was infuriated by the fact that the Nigeria Police did not refer the case to the Ministry of Justice for advice and prosecution and therefore instructed Obina his Personal Assistant to discontinue the case in Court.
2A. With the aid of statutory and judicial authorities, comment on the followings:
i. The jurisdiction of the High Court of Delta State to entertain this case.
ii. The detention of Chikwe for five months without bail or trial.
iii. Whether the accused is entitled to bail and what the Court should consider before it is granted.
iv. The prosecution of this case by the Police in the High Court.
v. The Attorney-General’s instruction to discontinue this case in Court.
2B. The accused has approached you as Counsel to formally apply for his bail in Court, draft the motion and a seven paragraph affidavit in support.

QUESTION 3
Following a report to the Nigeria Police Yola, Adamawa State by Duke Smith that his Ipad Computer has been stolen by one of his friends who visited him, Inspector Fianana issued a search warrant for the house of said Nuhu to be searched at No. 15 Market Road, Kaduna. On the day of the search, Sa’id was away to Kano on a business trip. His wife and four children were at home when the Police arrived. The Police searched the house and everybody therein including a woman in Purdah and recovered an Ipad and 22 kilograms of a substance suspected to be an Indian Hemp. Subsequently, the DPO issued a warrant of arrest for the arrest of Sa’id Nuhu in Kaduna.
Answer the following questions:
a. Comment on the propriety of the issuance of the search Warrant.
b. What is the proper procedure for the search of a house where the woman is in purdah?
c. What is the effect of any evidence illegally obtained?
d. Briefly outline the contents of a Warrant of Arrest.
e. What is the effect of Warrant of Arrest signed by the DPO?
f. What is the procedure for effecting Warrant of Arrest issued in Yola Adamawa State to be executed in Kaduna State?

SECTION 2
1. Please use another Answer Booklet for this section.
2. Question 4 is compulsory. One other question from this section should be attempted.
QUESTION 4
(A) The following took place in the examination-in-Chief of Chief Emeka Philips
1. Counsel: Your name is Chief Emeka Philip; you live at Plot 1342 ‘R’ Close, Victoria Garden City, Ajah, Lagos and an Electrical Engineer?
Chief Philips: Yes, you are correct
2. Counsel: And you know the accused in this case?
Chief Philips: That is also correct.
3. Counsel: So I will be right to say that you were present at the scene when the accused snatched Mrs. Ediri Thompson’s handbag?
Chief Philips: That is also correct
4. Counsel: Please tell this Court how it happened.
Chief Philips: It happened when……….
5. Counsel: Take a look at this document and tell this Court if it was one of the documents found in Mrs. Ediri Thompson’s handbag.
Chief Philips: Yes it was
6. Counsel: My Lord I seek to tender this document in evidence
Now answer the following questions:
1. What type of question is Question 1 and is it allowed in examination-in-Chief?
2. Is Question 2 objectionable? If yes how should it have been asked?
3. What type of question is Question 3? Is it allowed in examination-in-Chief? If No. state the appropriate question.
4. What type of question is Question 4? Is anything wrong with the questions? If yes, give reasons.
5. Is anything wrong with Question 5? Explain the procedure for tendering of documents in evidence.

(B) On the 3rd of April 2011, Danjuma and Obi were arrested at the Murtala Mohammed International Airport, with 50 kilograms of cocain each. They were arraigned at the Federal High Court two days later. Upon the charge being read to them, Danjuma pleaded guilty and was promptly convicted and sentenced to life imprisonment. Obi pleaded not guilty, and thereafter applied to court for bail. The prosecution however objected to the bail on the ground that the offence is not a bailable one. The Judge upheld his objection and refused to grant bail. On the next adjourned date during the proceeding, the Director of Prosecution entered the Court room and announced that the Attorney General sent him to enter a Nolle Prosequi on his behalf. He thereby ordered that the case be discontinued. The Judge refused the DPP’s application for nolle and proceeded with the case. At the close of the prosecution’s case, instead of entering his defence, Obi raised an objection and pleaded autre fis acquit based on the nolle entered by the Director of Prosecution.
Answer the following questions:
1. Comment on the propriety or otherwise of Danjuma’s conviction after his plea of guilty.
2. What is your view on the prosecutions ground of objection to the bail application.
3. What is your opinion on the Nolle Prosequi entered by the Director of Prosecution on behalf of the Attorney General?
4. Comment on the plea of autre fois acquit made by the accused.

QUESTION 5 (OPTIONAL)
Ahmed Torfa, Chukwuka Okeke, and Dauda Bashir, in Bodja area of Ibadan kidnapped the wife of one Chief Ebenpejo Olowooke for the ransom of N10 million. While still negotiating with the suspects, Chief Olowookere reported the incidence to the Police.
Several days later, the Police were able to trace the suspects to their hideout through the telephone calls on the outskirt of Ibadan. They were immediately arrested and remanded in custody. When Mrs. Olowookere recovered from the shock of her ordeal, she wrote a statement for the Police describing how she was kidnapped. They later brought out only 3 men for her to identify. She promptly identified them as the people that kidnapped her.
Ahmed, Chukwuka and Dauda were also made to write their statements but they declined that they would only do so in the presence of their lawyer. They were beaten and tortured until they agreed to write the statements, admitting the commission of the offence. They were not arraigned in court until one week later. Their Counsel came to see them at the Police State, but he was not allowed to see them but was told to meet the accused persons in Court. Upon their arraignment in the High Court Ibadan, Oyo State the charge was read to them but their Counsel prevented them from taking their plea on the ground that he has not been allowed to see his clients in custody. He asked for an adjournment which the court refused. The plea of the accused persons were taken and recorded and the case was adjourned for trial.
On the adjourned date, all the accused persons and their Counsel were in Court but the state Counsel in charge of the case was absent and did not give any reason to the court. The defence counsel rose and applied to the court to dismiss the case for want of diligent prosecution. The Judge refused the application on the ground that prosecution should be given more time. Therefore the counsel for the defence informed his Lordship of the application for bail he filed on behalf of the accused person and that he was ready to move the application. The Judge declined that he could not take the application in the absence of the prosecuting counsel.
At the trial, counsel for the accused persons challenged the identification parade and stated vehemently that the only rules of identifying the suspects must be by identification parade.
In the confessional statement made by the 2nd accused person, he implicated the 1st accused person. The prosecuting counsel urged the court to convict the 1st accused based on the confessional statement of the 2nd accused, implicating the 1st accused.
Answer the following questions, supporting your answer with statutory and judicial authorities where necessary;
i. As Counsel for the defence how would you fault the validity of the identification made by Mrs. Olowookere.
ii. Is it correct to assert as done by Counsel for the defence that identification parade is mandatory in all cases? Explain.
b) Comment on the admissibility or otherwise of the statements made by the accused persons at the Police Station?
c) Comment on the argument by the Prosecuting Counsel that the confessional statement of the 2nd accused be used to convict the 1st accused.
d) Comment on the detention of the accused persons for one more week before arraignment and the denial of access to their lawyer?
e) Was the Court right in refusing the application for adjournment? Explain.
f) As Counsel for the defence would you have applied for dismissal of the case at the stage of the proceedings? If No, what would you have done and why?
g) Was the Judge right in refusing to take the application for bail in the absence of prosecution? Give reasons.
h) As Counsel for the defence draft the application for bail for the 1st accused person only and without the affidavit in support.
i) Assuming at the trial, the 2nd accused person intends to call Dr. Banda as a witness to testify on his health condition, by what means can he compel his attendance?
j) Assuming Dr. Banda is only to come to tender a medical report without oral evidence; what process will issue? Comment on the implication of each process?

QUESTION 6
The following is continued in the record of proceedings of a rape case following the conclusion of evidence by the prosecution.
Judge: Accused, you heard the evidence of the prosecution witnesses. Frankly, they spoke the truth about how you raped the five year old girl. But I am not going to pass any judgment until I hear you. Do you wish to give evidence in your defence?
Accused: My Lord, my lawyer lost his father and today is the burial. I could not ask him for a letter because of his bereavement.
Judge: Did you hear the question put to you? Let me repeat: Do you wish to give evidence in your defence?
Accused: My Lord, they are telling lies. I did not do it. My neighbours know I was not even in town. They know the girl’s father has a land dispute with me. If my lawyer were present I would know what to do.
Judge: Well, you mean you did not rape the girl? All you have to say is that the prosecution witnesses are telling lies?
Accused: Yes, My Lord.
Judge: Since you have denied that you raped the girl, I will use that as your testimony.
Prosecutor: My Lord, we agree with the Court. Even though accused spoke from the dock he has given his own evidence.
Judge: The case is hereby adjourned for judgment as there is no Counsel to address the Court on behalf of the accused person. On the adjourned date the Court sentenced the accused person to life imprisonment and 26 strokes of canning.
Now answer the following question with the aid of legal and statutory authorities.
a. What rights are available to an accused person when the prosecutor has closed its case.
b. What should the Judge have done upon receiving information of the bereavement of Counsel. Support your answer with relevant authorities.
c. Was the Judge right in sentencing the accused person without listening to the address of Counsel.
d. Comment on the propriety or otherwise of the sentence imposed by the Judge.
e. As Counsel to the accused person, draft three grounds of appeal noticeable from the above proceeding.

CRIMINAL LITIGATION

MARKING SCHEME

MAY 2013

SECTION 1

QUESTION 1A

IN THE HIGH COURT OF OSUN STATE
IN THE OSHOGBO JUDICIAL DIVISION
HOLDEN AT OSHOGBO (1mk)
CHARGE NO: (1/2mk)
BETWEEN;
THE STATE COMPLAINANT
AND (1mk)
(1) CHIEF ODUNGA MAKUN
(2) IJANLA EKUN ACCUSED PERSONS
(3) AJAGUN MOSCO
(4) OKOYE DUDU

At the session holding at Oshogbo on the ——–day of ————–2011, the court is informed by the Attorney General of Osun State on behalf of the State that:

(1) CHIEF ODUNGA MAKUN
(2) IJANLA EKUN
(3) AJAGUN MOSCO
(4) OKOYE DUDU are charged with the following offences: (1mk)

COUNT 1
STATEMENT OF OFFENCE
Bribery of electoral official contrary to section 124(4), Electoral Act, 2010 (as amended)
PARTICULARS OF OFFENCE
Chief Odunga Makun on the —–day of April, 2011 at ——–in the Osun South East senatorial district in the Oshogbo judicial division offered the sum of N5 million and a promise to build a house for Mr. —– a returning officer in the election to the Osun South East senatorial election to induce the said returning officer to return him as the duly elected candidate of the Osun East senatorial district. (2mks).

COUNT 2
STATEMENT OF OFFENCE
Murder contrary to section 319, Criminal Code
PARTICULARS OF OFFENCE
Chief Odunga Makun, Ijanla Ekun, Ajagun Mosco and Okoye Dudu on the 16th day of April , 2011 in Oshogbo in the Oshogbo Judicial division murdered Mr. ……….(a polling officer) (2mks).

COUNT 3
STATEMENT OF OFFENCE
Assault occasioning harm contrary to section 355, Criminal Code
PARTICULARS OF OFFENCE
Okoye Dudu on the 16th day of April, 2011 in Oshogbo in the Oshogbo judicial division hit Miss Damilola with a car with Registration No——driven by him and thereby broke her leg. (2mks)

COUNT 4
STATEMENT OF OFFENCE
Possession of Firearms contrary to section 3, Firearms Act and punishable under section 27 Firearms Act.
PARTICULARS OF OFFENCE
Chief Odunga Makun, Ijanla Ekun, Ajagun Mosco and Okoye Dudu on the —–day of —-2011—in Oshogbo in the Oshogbo judicial division unlawfully had in their possession 3 AK47 Rifles (2mks).

DATED THIS —–DAY OF —————————————–2011. (1/2mk)

Signed
O.O SHODE
PRINCIPLA STATE COUNSEL
FOR: ATTORNEY GENERAL OF OSUN STATE
(1mk)

QUESTION 1B
a) The statements were involuntary because they were obtained by inducement. Section 28 Evidence Act. (2mks)
b) The court will conduct a trial within trial to determine the voluntariness’ of the confessional statements
GBADAMOSI v STATE
NWACHUKWU v STATE. (2mks)

c) Mere denial or retraction will not affect the admissibility of the confessional statement as long as it is voluntary. It does not require a trial within a trial. The retraction or denial of a confessional statement goes only to the weight that the court will attach to the affected confession on evaluation of evidence.
SALAWU v STATE
ONYEJEKWE v STATE
MADJEMU v STATE (2mks)

d) The submission raised is a defence of ALIBI. (2mks)
e) Where a defence of alibi is timeously raised by an accused person, the police should investigate it. (2mks)
f) (i) Do you know Ekun, Mosco, and Dudu?
(ii) Do you know one Mr. ………(a returning officer)?
(iii) Where were you on the day of the election?
(iv) Did you offer any money to anybody? (2mks)
(TOTAL MARKS = 25MARKS)

QUESTION 2 A
(i) The High Court of Delta State lacks the jurisdiction to entertain this case because no ingredient of the offence occurred in Delta State. An accused person can only be tried where the incident that led to his arrest took place. Ibori v F.R.N. The proper court to try this case is Enugu State High Court, (1mk)

(ii) The detention of Chikwe for five months without bail or trial contravenes his right to personal liberty. See section 35(1) CFRN, 1999. Where a suspect is arrested in connection with an offence of murder, he must be arraigned in court within a reasonable time. See section 35(4) CFRN, 1999.

However, if the arrest or detention of Chikwe is based on reasonable suspicion of having committed the offence of murder, he may not be able to invoke the provisions of section 35(4) (a) CFRN, 1999 by virtue of section 35(7) (a) CFRN, 1999, He can be detained for longer. (1mk)

(iii) An accused person charge for the offence of murder is not ordinarily entitled to bail except he can establish special circumstances and such bail can only granted by a judge of the Hight Court. Section 118 (1) CPA (1mk).
The conditions the court will consider to grant bail are:
a) The availability of the accused to stand his trail.
b) The gravity of the offence.
c) The nature and character of evidence available before the court.
d) Serious health needs of the accused.
Enwere v. C.O.P; Anaekwe v C.O.P: Suleman v. C.O.P: Chinemelu v. C.O.P: Ogueri v. C.O.P: Eda v. C.O.P: Abacha v State; Bamaiyi v The State. (One case is sufficient.) (1mk)

(iv) The Nigeria Police is competent to prosecute cases in the High Court. See F.R.N. v. Osahon. (1mk).

(v) The Attorney-General has constitutional power to discontinue in court any case instituted by him or any other authority or person. Section 211(1) (c) CFRN, 1999. The Attorney-General’s power to discontinue a case in court may be exercised by him in person or through an officer of his department. Section 211(2) CFRN, 1999. Where the Attorney-General is delegating his power to an officer in his department, the instruction must be in writing. Ibrahim v. The State.

Obina, the Attorney-General’s Special Assistant is not an officer in the Attorney-General’s department (except if he is a Law Officer) and therefore is incompetent to carry out the Attorney-General’s unwritten instruction to discontinue the case in court. The instruction given by the Attorney-General to his Special Assistant is null and void. (1mk)

QUESTION 2 B

IN THE HIGH COURT OF DELTA STATE OF NIGERIA
IN THE ASABA JUDICIAL DIVISION
HOLDEN AT ASABA (1/2mk)

CHARGE NO……(1/2mk)
BETWEEN:
CHIKWA ACCUSED/APPLICANT
AND (1/2mk)
THE STATE COMPLAINANT/RESPONDENT
(Students who alternate the arrangement of parties should be marked correctly)

MOTION ON NOTICE
BROUGHT PURSUANT TO SECTION 118(1) CPA, SECTION 35(1)(4) CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT. (1/2mk)

TAKE NOTICE that this honourable court will be moved on …….Day of …………………..2011 at the time of 9.O’clock in the forenoon or so soon thereafter as counsel on behalf of the applicant may be heard praying the court for:
1. An order releasing the applicant on bail
2. And for such further order or orders as this honourable court may deem fit to make in the circumstances. (1mk)

Dated this ……………………Day of …………………………………..2011 (1/2mk)

Signed………………………………
Yusuf Daniel
Counsel to the Applicant
No. 1 Market Road,
Asaba, Delta State
(1/2mk)

For NOTICE On
The Attorney-General
Ministry of Justice,
Asaba, Delta State. (1/2mk)

IN THE HIGH COURT OF DELTA STATE OF NIGERIA
IN THE ASABA JUDICIAL DIVISION
HOLDEN AT ASABA (1/2mk)

CHARGE NO. ……..(1/2mk)
BETWEEN:

CHIKWE APPLICANT

AND (1/2mk)

THE STATE RESPONDENT

AFFIDAVIT IN SUPPORT OF MOTION
I, Mr. Christian Chikwe, male, Christian, Nigerian, trader of No 2 New Market Road, Asaba, Delta State, Nigeria, do hereby make oath and state as follows:
1. That I am the father of the applicant herein and by virtue of my position, I am very conversant with the facts of this case
2. That I have the authority of the applicant to depose to this affidavit on his behalf.
3. That on 25th October, 2010, the applicant was arrested in connection with the murder of one Chinwa by the Nigeria Police, Asaba, Delta State at De Grovey Hotel, Asaba when he was celebrating his 25th birthday.
4. That the applicant informed me at the Police State, Market Road, Asaba on 25th October, 2010 and I verily believe him that he is completely innocent of the allegation made against him by the Police.
5. That ever since the applicant was arrested by the Police, he has not ben taken to court or granted police bail.
6. That I know as a fact that the applicant is presently suffering from acute tuberculosis and needs urgent medical attention.
7. That I make this oath bonafide and in accordance with the Oaths Laws of Delta State (1 1/2mks)
Deponent
(1/2mk)

Sworn to at the High Court Registry,
Asaba this……………………….Day of ………2011. (1/2mk)

Before me

Commissioner For Oaths (1/2mk)

(TOTAL MARKS = 15MK)

QUESTION THREE (3)

(a) A search warrant can be issued by a judge or magistrate. See S.76 (1) CPC. However, a police officer above the rank of cadet ASP may issue a search warrant to recover stolen property if such property was stolen within 12 months. See S. 28 Police Act. Inspector Fionana is not a superior police officer above the rank of cadet ASP. The search warrant is not valid. (3mks).
(b) Where the occupant of the premises is a woman in purdah she should be given adequate time to withdraw. Section 82 CPC. Since the woman was not given time to withdraw the procedure was irregular. (2mks)
(c) Evidence illegally obtained is admissible. It is relevancy that determines admissibility and not how the evidence was obtained or procured. The Ipad and the Indian hemp are admissible for the prosecution of the relevant offences. See also Reynolds. V. COP., Sadau V. State, Kuruma V. Queen (3mks).
(d) A warrant of arrest must contain the following:
– must be in writing;
– must contain date of issue
– must contain particulars of offence
– name of the suspect;
– signature of the judge, or magistrate or justice of the peace
Sections 56(1) & 58(1) CPC. (2mks)
(e) A warrant of arrest signed by the DPO is invalid . Only a judge or magistrate or justice of the peace can sign a warrant of arrest. (2mks)
(f) A warrant of arrest issued in Yola, Adamawa State for execution in another state must be endorsed by a judge or magistrate in Kaduna State before it can be executed. The endorsement by the judge or magistrate is sufficient authority to a police officer to execute the warrant and bring the person arrested before the judge or magistrate who endorsed it. See S. 482 (1)CPA. COP V. Apampa. (3mks).

(TOTAL = 15 MAKRS)

COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
BAR PART 11
CRIMINAL LITIGATION MARKING SCHEME
SECTION 2

QUESTION 4A
1) Question 1 is a leading and introductory question. It is allowed in examination-in-chief.

It is an exception to the rule that leading questions are not allowed in examination-in-chief. See S. 196 Evidence Act. (2mks)

2) Question 2 is objectionable. It is a leading question. I will ask “Do you know the accused person in this case? (3mks).
3) Question 3 is a leading question and suggestive. It is not allowed in examination-in-chief.
The appropriate question is:
“What happened to Mrs. Ediri Thompson’s handbag on the day of the incident?” (3mks)
4) Question 4 is an open question.
No, such question is proper in examination-in-chief. It allows the witness to tell a story. (2mks)
5) Yes, no proper foundation was laid for tendering the document.
The procedure for tendering the document is as follows:
– Ask if he sees the document he will be able to recognize it?
– Ask the witness to identify the document
– State the means of identification that it was actually the document recovered.
– Seek to tender the document. (3mks)

QUESTION 4B

1. Where an accused person pleads guilty to a charge requiring scientific proof, he cannot be convicted on his plea of guilty without scientific proof that what he had in his custody was the alleged substance.

STEVENSON V POLICE; ESSIEN V STATE
The trial judge was wrong in quickly convicting Danjuma based on his plea of guilty. (3mks)

2. A charge for possession of cocaine is a bailable offence. It is a felony but not a capital offence. It is at the discretion of the court. Section. 118(2) CPA. The prosecution’s objection was invalid. (3mks)
3. Nolle Prosequi can be entered by the Attorney-General in person orally (section 73(1) CPA) or by instrument under his hand and sent to court through an officer in his department. Section 211, 1999 Constitution; STATE V. CHUKWURAH. The DPP is not constitutionally empowered to enter a nolle prosequi. (3mks).
4. A valid nolle prosequi can only amount to a discharge and not an acquittal. It can therefore not be a basis for a bar plea of autre fois acquit. For a bar plea of autre fois acquit to succeed, the following conditions must be fulfilled: (a) the first trial of the accused person must have been on a criminal charge; (b) the first trial of the accused must be by a court of competent jurisdiction; (c) the first trial must have ended with a conviction or an acquittal; (d) the offence charged must be the same as the first offence for which he was tried or an offence of which the accused person could have been convicted of the first trial. The objection of Obi based on the Nolle entered by the DPP is invalid or improper. (3mks)

(TOTAL MARKS = 25MARKS)

QUESTION 5

(i) What was carried out before the victim Mrs. Olowookere is not an identification parade but mere identification. For proper identification parade to be done, there is a laid down procedure. The suspect must be assembled together with persons of similar height, stature, colour, facial expression and other physical features. The victim is expected to identify the suspect amongst the assembled. The people must not be less than five. One suspect at a time should be identified. See Ani v The State. The State v Aibangbee, Abudu v The State. The Police must not in any way help the victim or witness in identifying the suspect. (1mk).
(ii) No it is not correct. It is not in all cases that identification parade is necessary. It is only essential where the identity of the suspect is in doubt during commission of the crime. See Almu v The State, Wakada v The State. (1mk).
ii) A statement must be made voluntarily by the suspect for it to be admissible. Where it is obtained by force, threat, coercion or any form of promise, it amy render such statement inadmissible in criminal trial. Ss 27, 28 Evidence Act. Emeka v The State, Ojegele v The State, Afolabi v COP, Omoju v FRN. (1mk).
iii) Where an accused person makes a confessional statement and in the process he incriminates a co-accused, the statement would be admissible against him alone. The statement can only become admissible against the co-accused if he adopts it either by word or conduct. Therefore the argument of the prosecution cannot stand. See s.27(2)(3) Evidence Act.
Ikemson v The State, Durago v The State, Solola v The State. (1mk)

iv) The detention of the accused persons for one more week is wrong. It offends against their right to be tried within a reasonable time and right to be informed of the offence committed. See Ss 35(4) (5), 35 (6) (a) 1999 Constitution, It was also wrong to deny the accused access to their counsel.

It is their Constitutional right, see Section 36(6) (c) 1999 Constitution, they are entitled to be defended by counsel of their choice. See Awolowo & Ors v Usman Sarki & Ors, Registered Trustees, ECWA Church v Ijesha, Uzodinma v COP, Ariori v Elemo. (1mk).

v) The court was wrong in refusing application for adjournment. The accused persons have right to be given adequate time and facilities to prepare for their trial. This includes reasonable adjournments to bring material witnesses to court or to engage a lawyer to defend him. See Ss 36(6)(b) 1999 CFRN, Udo v The State, Yanor v The State, Shemfe v The State, Gokpa v COP, Omega v The State (1mk)

vi) No, I would not apply for dismissal but ask for an order to strike out the case for want of diligent prosecution. Striking out allows the prosecution to re-arraign the accused if he so desires in the future. And also it is too early in the case to ask for dismissal. (1mk)

vii) The judge was not right. Once the judge is sure that the other party (the prosecution) has been served, he can take the defence’s bail application. It is the right of the accused to be granted bail where it is a bailable offence. See ss 118 CPA, Olugbusi v COP. (1mk).

viii) Application for Bail on behalf of the 1st accused only.

IN THE HIGH COURT OF OYO STATE
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN (1/2mk)

CHARGE NO: (1/2mk)
BETWEEN
AHMED TOFA DEFENDANT/APPLICANT
AND (1/2mk)
THE STATE COMPLAINANT/TRESPONDENT

SUMMONS BROUGHT PURSUANT TO SECTION 123 OF THE CRIMINAL PROCEDURE LAWS OF OYO STATE (1/2mk)
LET ALL PARTIES CONCERNED attend this Honourable court on ——the ———–day of ——-2011 for the hearing of an application on the part of counsel for the Accused/Applicant for an order admitting Ahmed Torfa to bail in respect of charge
No:
AND for such further order or orders as this honourable court may deem fit to make in the circumstances of this case (1 1/2mk)

DATED THIS ………..DAY OF ……………..2011. (1/2mk)

………………………………………..
(SIGNED) (1/2mk)
SOLICITORS TO THE ACCUSED/APPLICANT
48 IYANGANKU ROAD, IBADAN, OYO STATE
ON NOTICE:
THE ATTORNEY GENERAL
MINISTRY OF JUSTICE
OYO STATE (1/2mk)

ix) To compel Dr. Banda to testify, the 2nd accused will apply to court to issue subpoena ad testificandum. This is a process compelling a witness to come to court to give evidence on a particular day and time (1mk).
x) If Dr. Banda is to produce document alone without oral testimony the court will order subpoena duces tecum. In this case he may simply produce document without appearing in court or being summoned to testify. See ss. 192, 193 Evidence Act. (1mk).

Question 6
a) The rights available to an accused person when the prosecution has closed its case are:
i) He may enter into his defence,
ii) He may make a submission of no case to answer.
iii) He may rest his case on that of the prosecution.
If the accused enters into his defence, he may;

b) The judge ought to have adjourned the case based on the reason given by the accused for his lawyer’s absence. The accused is entitled to adequate time and facilities for the prepartion of his defence. S. 36 (b) CfRN, Yanor v State, (3mks)
c) The judge was not right in sentencing the accused person without listening to the address of consel. The right to final address by the defence counsel is Constitutional right. Any denial gives rise to appeal when it can be proved that there is a miscarriage of justice. S. 294 CFRN, 1999. (3mks)
d) The combination of life imprisonment as a maximum sentence and canning is proper. However, imposition of canning, should not exceed 12 strokes of the cane. See s. 358 Criminal Code, and s, 77 & s 283 Penal Code. (3mks)
e) The grounds of appeal noticeable from the proceeding are:
GROUND ONE.
The learned trial judge erred in law and denied the Accused/Appellant fair hearing when he concluded that the accused/appellant was guilty after hearing the prosecution witnesses without having heard from the defence.
PARTICULARS
i. The court is bound to hear both sides before judgment.
ii. The court prejudged the outfdcome of the case an accused person is entitled to fair hearing.
GROUND TWO
The trial court erred in law when it failed to grant an adjournment when defence counsel was bereaved and this occasioned a miscarriage of justice.
PARTICULARS
i. The accused person is entitled to adequate time and facilities to prepare his defence.
ii. The accused informed the court that his lawyer was beareaved and that if his lawyer was present, he would know what to do.
iii. The refusal of adjournment was a wrong exercise of discretion.
GROUND THREE
The trial court erred in law when it treated the statement of the accused that he was innocent as his testimony.
PARTICULARS
i. The court did not explain to the accused person the options available to him after the prosecution has closed his case.
ii. The accused person did not tell the court that his denial of the charge was his evidence.
iii. The statement of the accused person from the dock was not proper evidence in this case.
GROUND FOUR
The learned trial judge erred in law when he proceeded to give judgment without final addresses and this occassioned a miscarriage of justice.
PARTICULARS
i. The parties have a Constitutional right to address the court. The final addresses are part of the trial
ii. The final addresses are part of the trial.
iii. Failure to take final address has occassioned a miscarriage of justice.

GROUND FIVE
The learned trial judge erred in law when he imposed the maximum sentence and 26 strokes of the cane.
PARTICULARS
i. The learned trial judge did not adduce any reasons for imposing the maximum sentence.
ii. The sentence of canning was excessive and not according to law. (3mks)
(Any three grounds will be sufficient. One mark for each ground correctly stated)
(TOTAL = 15MARKS.)

Isochukwu

Quite eccentric really

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