2017 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN CRIMINAL LITIGATION
NIGERIAN LAW SCHOOL
BWARI – ABUJA
BAR FINALS EXAMINATIONS
CRIMINAL LITIGATION
TUESDAY AUGUST 16, 2017 TIME ALLOWED: 3 HOURS
INSTRUCTIONS:
THIS PAPER IS DIVIDED INTO TWO SECTIONS. TWO ANSWER BOOKLETS ARE PROVIDED. QUESTIONS FORM EACH SECTION SHOULD BE ANSWERED ON A SEPARATE ANSWER BOOKLET. QUESTIONS 1 AND 4 ARE COMPULSORY. ONE OTHER QUESTION FROM EACH SECTION SHOULD BE ATTEMPTED.
WRITE YOUR EXAMINATION NUMBER ON EACH ANSWER BOOKLET.
SECTION A
QUESTION 1 (COMPULSORY)
QUESTION 1(a).
On August 5, 2017, Mrs. Chichi Bassey and Mr. Ngozi Itsifanus who both reside at No. 25, Odo-dlono Stréct, Calabar, Cross River State, Nigeria were aested by men of Criminal Investigation Department of Nigeria Police, Calabar. Their arrest was in connection with the ofences of procuring, using, offering and deceitfully inducing Miss Rosemary Idiba, 17 years old and Miss Eteng Okon, 16 years old all, of No. 25, Sabo Street, GRA, Calabar for prostitution at, Independence Hotel, No. 1, Independence Road, Cross, River State, Nigeria. The suspëcts were alleged to have confined the girls for prostitution at the hotel. The Police after investigation, forwarded the case file to the Arttoney General of the Federation who has instructed you, as ‘a Principal State. Counsel in his Office, to draft tlhe charge, for arraignment of the suspects in court
Draft the relevant charge(s) for filing at the Federal High Court.
THE LAW
TRAFFICKING IN PERSSONS, (PROHIBITION) LAW ENFORCEMENT AND ADMINISTRATION ACT 2003 (AS AMENDED)
SECTION
15.
Any person who-
(a) procures, uses or offers any person for prostitution, or the production of pornography, or for pornographic performance; (b) keeps a brothel; (c) allows a person under the age of eighteen years to be in a brothel or trades in prostitution; (d) procures, uses or offers any person for the production and trafficking in drugs; (e) traffics any person for the purpose of forced or compulsory recruitment use in armed conflict, commits an offence and is liable on conviction to imprisonment for fourteen years without an option of fine.
19(1) Any person who-
(b) by force compels or by deceitful means induces any person to go from any place, commits an offence and is liable on conviction to imprisonment for ten years or to a fine not exceeding N200,000.00 or both; (c) confines or detains another person in any place against his will, or otherwise unlawfully deprives another person of his personal liberty, commits an offence and is liable on conviction to imprisonment for five years or to a fine of N100,000.00 or both;
QUESTION 1
IN THE MAGISTRATE COURT OF KOGI STÁTE IN THE OKENE JUDICIAL DIVISION SITTING AT OKENE
CHARGE NO..
BETWEEN:
THE STATE__________________CLAIMANT
AND
OBI DAUDA____________________ DEFENDANT
I, Inspector Edet Umaru, accuse you, Obi Dauda as follows:
COUNT1
That you, Obi Dauda, on January 10, 2017, at Emirate Road, Okene within Okene Judicial Division, fraudulently took the sum of ten thousand naira (10,000.00) belonging to Mallam Yaro Ayuba and thereby committed, an offence contrary to Section 287 of the Criminal Procedure Code Law of Kogi State and triable by this Court.
Signed…………
Insp. Edet Umaru:
For: Hon. Commissioner of Pollce
Kogi State
i. Serially point out the erors, ir,any, without ‘redrafting in the charge sheet.
ii. As the Defence Counsel raise a preliminary objection in respect of the above charge, stating clearly the ground(s) for your objection (without affidavit and written address).
iii. Assuming that the prosecution’s, application to amend the charge was granted by the Court, what step(s) will the Court take before continuing with the trial?
iv. As Defence Counsel, at thei conclusion of arraigniment, mention the first application, you will make on behalf of y our Client. Draft the said application only
QUESTION 2
At the trial of Akpan Ede for culpable homicide, punishable with death, before a Makurdi High Court, the charge was read to him in Tiv language by an amicus curiae” who is very proficient in the language. He stood mute The judge recorded a plęa of not guilty for him and called on the prosecution to present its case. The prosecution called only one witness, Mr, Donga Vande who was an eye witness to the crime and closed its case
The defence made a No Case Submission, since thhe prosecution called only one witness. Without asking the prosecuting counsel to reply, the learned trial judge overruled the no casę suubmission as follows: “The no casę submission lacks merit and is accordingly ovexruled. The defence must now enter a defence”.
On the date fixed for defence, Coumsel to the accused was absent, but the juudge read out the options open to the acçused and he elected to remain silent. The prosecuting counsel then urged the court to convict the accusecl as charged because his silence was an acceptance of guilt. He was convicted and sentenced to death by lethal injection, or hanging as may be determined by the Controller of Prisons
Answer the following questions:
(a) Was the arraigriment of the açcused, perşon in this case valid? Give your reasons, Comment on the plea recorded for the aceused by the ćourt.
(b) Comment on the basis of the no case submission, and the uling of he court thereo
(c) State “the options opened to the court, when it noticed that counsel to the accused was absent.
(d) State other options opened to the accused, apart from the option he chose.
(e) Was the prosecution right in urging the court to convict the accused, based on his silence? Give reasons for your answer.
(f) Comment on the sentence pronounced on the accused and indicate what you consider, the appropriate death sentence in this case?
QUESTION 3
On February 14, 2017, complaint was made to the Chief Magistrate court, Bwari, FCT by Mrs, Sarki, the President of Bwari Women’s Association that one of members, Madam G.I. Victory of Victory Beer Parlour , Bwari was beaten to a state of coma by Lance Coporal Udensi Udenta, of Kiuchiko Army Barracks, Bwari. The Complaint stated that Madam G. Victory was only revived at the Bwari Hospital. The Chief Magistrate, M. O. Bucknor issued summons by affixing his signature stamp which the bailiff “took to thie house af Lance Corporal Udensi at the Iuchiko Army Barracks.
After making three attenmpts at serving Lance Corporal Udensi with summons without success, the bailiff pasted the summons at the front main gate of the barracks,
Lance Corporal Udensi saw the summons and reported to the court on February 28, 2017. The summons was read to him and he denied the complaint.
A the end of the trial the Magistrate delivered an oral judgement convicting the defendant.
The convict is désirous of appealing against the judge against the judgemént.
Answer the following questions:
(a) The propriety or otherwise of the mode of issuihg the smmons or Otherwise of the mode of issuing the súmmons by the Chief Magistrate.
(b) The mode of service of the summons by the court bailiff,
(C) The request of the Commissioner of Police to the court to withdraw the summons and the response-of the Chief Magistrate,
(C) The delivery of oral judgnment by the Chief Magistrate.
(e) Where will the-appeal be filed?
(f) Identify and draft two grounds of appeal arising rom the facts in this case
SECTION B
PLEASE USE ANOTHER BOOKLET FOR THIS SECTION
________________________________________________________________
QUESTION 4 (COMPULSORY)
Alhaji Bello and Clement Inyang were arraigned at the Lagos High Court, Ikeja, on two counts of conspiracy to commit a felony to wit Murder and Assault occasioning grievous bodily harm. At the trial, the Prosecution called Dr.Ayo Bmnianuel, a Pathologist who conducted a post mortem examination on the victim Chief Duru, in the trial as the second Prosecution Witness (PW2). He was examined as follows:
Examinationin-Chief
1. Prosecuting Counsel: You are Dr Ayo Emmanuel, a Consultant Pathologist with the Lagos Teaching University Teaching Hospital with 12 years experience
PW2: Yes my Lord
2. Defence ounsel: Objection My Lord, my learned friend is leading the wimess. I am not sure tlhe witness ls even a medical doctor
3. Court: Objection overruled
4. Prosecuting Counsel: Can you tell this Honourable Court what happened on March 10, 2016?
5. P.W.2: I conducted an autopsy on the body of Chief Duru.
6. Prosecution counsel: What was your finding?
7. PW2: I discovered that the died of gunshot injuries. I issued an autopsy report.
8. Prosecuting counsel: I seek to tender a photocopy of the report, My Lord.
9. Defence Counsel: I object to the admissibility of the report. No proper foundation was laid.
10. Court: objection overruled. The autopsy report is admitted in evidence as Exhibit
Now answer the following questions with relevant authhorities
(a) What is the nature of question 1? would you have objected to this question? Give reasons for your answer.
(b) Justify the order of the Court, overruling the objection of Counsel to question 1.
(c) What is the näture of of question 4? What purpose does it serve in the examination of a witness? Why is it not advisable at to use this questioning technique in cross-examination?
(d) What objection wold you raise to question 6? As Prosecuting Counsel, what question would you have asked make it unobjectionable?
(e) Do you agree with the defence Counsel in the objection to the photocopy of the autopsy report? Give your reasons.
(f) As the prosecuting. Counsel, lay the proper foundation for the admission of the photocopy of the autopsy report
(g) Why is it generally not advisable to ask a question Cross-examination, the answer to which you do not know?
QUESTION 4b
with the aid of statutory and judicial authoriies, determine the correctness of the following issues:
ss or otlherwise of
(i) A one-count charge of the killing two brothers by a trigger-happy accused/Policeman which was filed at the High Court of Lagos State.
of the killing of the ‘accuscd.against Miss Stephen
(ii) A Senior State Counsel, who filed three separate charge sheets for offences of rape, burglary and stealing respectively committed by Aina at her residence on February 3, 2017.
(iii) John Okri, whose bail application at his trial for onidecent assault was refused by aChief Mlagistrate’s Couirt in Yenagoa, Balyesa State, has filed’ an appeal against tne ruling at the Federal High Court, Yenagoa Judicíál Division in Bayelsa State.
(iv) Buba James was arraigned at the High Court of Oyo State. for stealing 5 tubers of yam belonging to Chief Adelakun Ojo, at his farm in lbadan, which Buba had earlier been tried and convicted of by a Senior Magistrate in lbadan, Oyo State.
(v) Two Lawyers in the office of Ojugbana Ben,& Co, in Warri disagree over whether or not it is necessary for a defendant/applicant for bail, to meet any condition before he is admitted to bail pending his trial for the offence of rape, since bail is at the discretion of the trial Judge.
QUESTION 5
Daniel Mangoro, Peace Orho and Qkoro, Silvanus went shopping at Next Supermarket, Suleja Street, Abuja. When they got to thę Jewellery Section, Peace saw a beautiful diamond necklace and was desirous of liaving it, but the price tag on it was a whooping N2 million which she could not afford. Realising that the Sales Attendant in the Jewellery Section was her former boyfriend Mike Joro, they exchanged pleasantries and Peace informed Mike of her desire to have the necklace, but that she could not afford it. Mike told her o hạve faith in God.
After Daniel, Peace and Okoro left the Supermarket, they met Mike’ a few meters away and he handed the necklace to Peace and left. On their way back with Peace driving n a reckless manner, she knocked down a pedestrian who died instantly.
The three of them were arrested and have been charged with stealing the diamond necklace. Peace, in addition, was charged with causing death by dangerous driving.
They all pleaded not guilty to thę charges. When the Court Registrar inquired from them whether they understood English language, they answered in the negative but that they are fluent in pidgin English Thereafter, the Coirt proceeded with their trial
After close of evidence, the Judge wrote his judgment and informed the parties that he was ready to deliver it. The Coumsel to the defendants requested that they needed to address the Court, bút the Judge replied that there was no need for that since the judgment ot a Court is not based ol submissions of Counsel but evidence adduced in the case.
.
The Court convicted and sentenced Daniel, Peace and Okoro to six years imprisonment each without option of fine for receiving stolen property, The court in addition, found Peace guilty of causing death by dangerous driving, and sentenced her to death, but reduced it to, life imprisonment having found that she was nursing a child.
Answer the following quuestions with the aid of statutory and judicial authorities:
(a) What is the effect of the defendants’ trial after informing the Court that they did not understand English language but pidgin English?
(b) Comment on the refusal by the Judge to allow the defendant s’ counsel to address the Court before delivering his judgement,
(c) What is the propriety or otherwise of the conviction of Daniel, Peace and Okoro for receiving stolen property? Give reasons for your answer.
(d) In your opinion, was the Court right in sentencing Peace to death and subsequently reducing it to life sentence?
(e) Had the three defendants been charged also for theft in one count, what would be your opinion as their counsel if they are convicted thereon?
QUESTION 6
Bunima Marshal, Major Briggstone Paco and Lieutenant Colonel Zamparoni Hakeem where charged before the Special Court the offence of desertion and cowardly behaviour. The charge was filed on May 10, 2017 and trial commenced on May 12, 2017..It was alleged that on November 12, 2012, whilst fightng the insurgents at Maiduguri, Borno State, they took off their uniform in the heat of the battle and ran away to Cameroon.
Brigacier General Akporo is the President’of the Special Court while Colonel Bakayoko, Colonel Habccb and Lieutenant Colonel Colonel Zanga are members. Mrs: Aino Balu, a legal practitioner of five year’s post-call experience is the Judge Advocate and .the Nigerian Bar Association representative, No waiting member and Liaison Officer were appointed. The Convening order was signed on the arraignment date.
At the trial, objection, was raised to the jurisdiction of the Court Martial to try the defendants as the offences were committed more than four years before the arraignment date. The Court Martial denied a private legal practitioner engaged by the 2nd defendant, right of audieńce, on the ground that he. was not á member of the Armed Forces,.
In the course of trial, the Honourable Attomey-General of the Federation entered nolle prosequi due to the nature of the trial. It was accordingly upheld.
Answer the following questions with judicial and statutory authorties.
(a) Comment on the propriety or otherwise of the qualification of, the Judge Advocate
Comment on the propriety or otherwise of the composition of the Special Court Martial as it relates to the President and other members.
Is the Special Court Martial duly constituted without a Liaison officer and a Waiting Member? Give reasons for your answer
Comment on the jurisdiction of the Special Court Martial to try the defendants for the alleged offence.
Comment on the propriety or otherwise of the denial of right of audience to the 2nd defendan’s Counsel.
Comment on the legality or otherwise of the nolle prosequi entered by the Honourable Attorney-General of the Federation.
COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
BAR PT II EXAMINATIONS
AUGUST 2017
CRIMINAL LITIGATION
MARKING SCHEME
SECTION A
QUESTION 1( COMPULSORY)
QUESTION 1(A)
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE BENIN JUDICIA DIVISION
HOLDEN AT BENIN
CHARGE NO:…..……..
BETWEEN
FEDERAL REPUBLIC OF NIGERIA……………………. COMPLAINANT
AND
1. MRS CHICHI BASSEY
2. MR NGOZI ITSIFANUS………………………DEFENDANTS
1 MK
COUNT 1
That you Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at 25 Sabo Street, GRA, Calabar in the Calabar Judicial Division procured 18 years old Miss Martina Opaku for prostitution and thereby committed an offence punishable under section 15 (a) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 2
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 25 abo Street, GRA, Calabar in the Calabar Judicial Division procured 17 years old Miss Rosemary Idiba for prostitution and thereby committed an offence punishable under section 15 (a) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 3
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 25 abo Street, GRA, Calabar in the Calabar Judicial Division procured 16 years old Miss Miss Eteng Okon for prostitution and thereby committed an offence punishable under section 15 (a) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 4
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 1 Independence Road, Calabar in the Calabar Judicial Division used 18 years old Miss Martina Opaku for prostitution and thereby committed an offence punishable under section 15 (a) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 5
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 1 Independence Road, Calabar in the Calabar Judicial Division used 17 years old Miss Rosemary Idiba for prostitution and thereby committed an offence punishable under section 15 (a) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 6
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 1 Independence Road, Calabar in the Calabar Judicial Division used 16 years old Miss Miss Eteng Okon for prostitution and thereby committed an offence punishable under section 15 (a) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 7
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 1 Independence Road, Calabar in the Calabar Judicial Division offered 18 years old Miss Martina Opaku for prostitution and thereby committed an offence punishable under section 15 (a) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 8
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 1 Independence Road, Calabar in the Calabar Judicial Division offered 17 years old Miss Rosemary Idiba for prostitution and thereby committed an offence punishable under section 15 (a) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 9
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 1 Independence Road, Calabar in the Calabar Judicial Division offered 16 years old Miss Miss Eteng Okon for prostitution and thereby committed an offence punishable under section 15 (a) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 10
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 1 Independence Road, Calabar in the Calabar Judicial Division deceitfully induced 18 years old Miss Martina Opaku to prostitution and thereby committed an offence punishable under section 19 (1) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 11
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 1 Independence Road, Calabar in the Calabar Judicial Division deceitfully induced 17 years old Miss Rosemary Idiba to prostitution and thereby committed an offence punishable under section 19 (1) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
COUNT 12
That you, Mrs Chichi Bassey and Mr Ngozi Itsifanus on August 5, 2017 at No. 1 Independence Road, Calabar in the Calabar Judicial Division deceitfully induced 16 years old Miss Miss Eteng Okon to prostitution and thereby committed an offence punishable under section 19 (1) of Traficking in Persons (Prohibition) Law Enforcement and Adninistration Act, 2003 (As Amended). 1/2 Mk
DATED THIS _________DAY OF ____________2017. ½ MK ___________________
(Principal State Counsel)
For: Attorney-General of the Federation.
QUESTION 1B
-The heading of the Court sbould be in three lines. It should be in the Okene Magisterial District not Judicial Divisicn. It should be Holden” at Okene not Sitting” at Okene,
-‘Charge No’ is wrong, it should be ‘Case No’
-It should be ‘Commissioner of Police’ as ‘Complainant’ and not the State as ‘Claimant’
-Obi Daudu should be desciibed as ‘Accused’ and not Defendant.
-The introductory paragraph should contain the name oi the
-Magistrate drafting the Charge as Police does not draaft charge in Magistrates Court in the North.
-It should not be accused you but rather Charge you
-‘Count 1’ is wrong, it should be ‘Charge 1′
-in the body of the charge (2 paragraph) it should be magisterial District and not Judicial Division’,
-In the body of the charge the description of the offence should be
-The third paragraph, it should not be merged, together witlh the 2
paragraph, thus “triable by this Court is part of the paragraph’
-The signing authority is Wrong, It should be the Magistrate who
drafted the charge, with his name and date..
-S.287.Penal Code Law NOT S. 287 Criminal Procedure Code Law
4 MARKS
1B
ii) The charge is bad for anmbiguity and the authority that drafted the charge lacks the power to draft a Charge and
commence an action before the Court in the North, thus there is nothing before the Court. See Olatunjitv State (2000) FWLR (Pt.30)2635
1 MK
iii)The following are the steps the court would take before continuinig with trial;
1. The new charge is read and explained to the accused. Youngman v COP 2. The accused takes a fresh plea and gives fresh consent where applicable. Okosun v State 3. Endorsement of an amendment note. COP v Alao
4. The accused is asked if he is ready to proceed with the trial.
5. The accused or the prosecution may apply for adjournment if to proceed immediately will prejudice the accused. Gokpa v IGP. 6. The prosecution has the right to apply call or recall witnesses. Shoaga v R; Section 163, 164 & 16 CPA
2 Mks
1 B (iv) The first application I will make on behalf of my client at the conclusion of araignment is application for bail pending trial.
1 MK
IN THE MAGISTRATE COURT OF KOGI STATE
IN THE OKENE MAGISTERIAL DISTRICT
HOLDEN AT OKENE ½ MK
CASE NO…………
BETWEEN
COMMISSIONER OF POLICE………,.COMPLAINANT/RESPONDENT
AND
OBI DAUDA ………. ACCUSED PERSON/APPLICANT
MOTION ON NOTICE
BROUGHT PURSUANT TO SECTION 341(2) OF THE CRIMINAL PROCEDURE CODE ACT; SECTION 35 AND SECTION 36 (5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999; AND UNDER THE INHERENT JURISDICTION OF THE COURT.
TAKE NOTICE that this Honourable Court will be moved on the……..day of………………2013 at the hour of 9 O’clock in the forenoon or so soon thereafter as Counsel on behalf of the Accused/Applicant can be heard praying this Honourable Court for the following orders:
AN ORDER admitting the Accused/Applicant to bail pending the
determination of this case.
AND for such order or further orders as this Honourable Court may deem
fit to make in the circumstances of this case.
Dated this………day of…………………2017
____________________
Edet Umaru
Counsel to the Accused/Applicant, ½ MK
For Service On:
The Attorney-General of the Kogi State,
Ministry of Justice,
Lokoja..
1B (v) The steps that must be folowed to arraign tbe accused persen are:
(1) The accused must appear or be brought before the court unfettered.
(2). The charge must be read out in court and explained to him in the language he understands.
(3) He wil be called upon to plead instantly to the charge. Section 187 CPC.
2Mks
Total: 25 Marks
QUESTION 2
A) The arraignment of the accused person in his case was not valid because the language of the court is English and not Tiv language. Reading of the charge in Tiv language was wrong.
It Was also wrong for an Ainicus Curiae to have read the charge. lt is the duty of the registrar of the Court to read the charge and explain it to the accused before he takes his plea: See section 187 CPC.
The plea of not guilty recorded for the accused person in this case was wrong. Where an accused person stands mute, the court must cause an inquiry into the reason for the muteness. If the muteness is as a result of malice, the court will record a plea of not guiltyfor the accused and call on the prosecution to proceed to prove its case. But where it is as a result of the visitation of God, the court will order that the a ccused person be kept in an asylum pending the pleasure of the Governor, See Yesufu v. State; R v Ogor.
3Mks
(B) The basis of the no ase submission was Wrong, See.section 159(1) CPC; 191(5) CPC.
Generally, a no case subrmission, may be made in any ‘of the following Circumstances :
i. That there is no evidence to establish the essential ingredients of the offence; ii. That the evidence put forward by the prosecution has been so discredited on cross examination; or iii. That the evidence of the prosecution is so manifestly unreliable that no reasonable tribunal can safely convict upon them. Section Emedo v State; Ibeziako v COP; Ubanatu v COP; R v Coker. The ruling of the court in this case was wrong. The Court ought to have callled On ne prosecution Counsel to reply before the ruling.
2 MkS
The optiorns open to the court when it noticed that Counsel to the accused was absent are:
To ask the accused whether he needed another counsel, and if yes, to.appoint for him
Adjourn the.l mater to enable the counsel to the àccused appear. Failure to do this is a denial of fair hearing. See Udo v. State
2Mks
(D) When the accuséd elects to enter a defense the accused Can do any of the following
(i) Make a statement from the dock without being sworn, in which case he will not be subject to cross-exanination or
ii)Enter the witness box to testify, in which case be will be sworn and subject to cross-examination
iii) He need not say anytlhing at all in his defence, if he so wishes. See Ss 191 (a) (b) and S. 236 (1)(b) CPC
E. Thec prosecution was wrong in urging the court to eonvict thc accused person based on his silence. The right to silence is a constitutional right. See section 36(11) of the constitution: Though the prosecutlon is entitled to make comment on the failure of the defendant to give evidence, such comment shall not suggest that the defendant failed to do so because he was, or that he is guilty ot the offence charged. See section 181 of the Evidence Act 2011.
3 Marks
(F) The death sentence pronounced on the acused person in this case was wrong, This is because, death by Lethal injection is not recognized under the CPC. The appropriate death sentence in this case is by hanging. See Section 273 CPC
2 Marks
Total=15
QUESTION 3
(a)The summons was properly issued.
A Magistrate may issue summons by affixing his signature stamp on it. Goodman V. Ebans Limited,
A Magistrate, has’l discretion and power to issue summons to Compell the atttendanve of the defendant in cout where there is a complaint, oral or written showing. a reasonable or probable cause that an offence has been committed in the Magisterial District, See section 115(1) (a) ACJA
(b) Sumnmons shall be served by a police offcer or by an officer of the court issuing the summons or other public ofiicer Or through a courier service company duly registered with the Chief Judge as a process Service agent of the court, See section 122 ACJA
Service shall be personal by delivering it on the defendant. See. section 123(a) ACJA
However where personal service cannot be etfected on the defendant the process server may, with the’ leave of court, serve by substituted means. After the leave of court is sought and. obtained, the bailiff or processe server may affx one of the duplicatës of the summons to Some conspicuous part of the premises or place in which the individual to be served ordinarily resides or Works, and on doing so the summons shall be deemed to have been duly served. See section 124 ACIA
Although Lance Corporal Udensi’ residés at the barracks and
the bailiff made thirée attempts before pasting the summons at the front main gate of the Barracks, the mode ofservice Was invalid because leave of court for substituted service was not sought or gránted by the Court.
However, the irregularity in the service of the summons will not
vitiate the trial because Udensi’s appearance before the court is
evidence that be got notice of the summons. See section 136 ACJA: 3 Mks
(c) The Police may apply to withdraw the complaint at any time before judgment. However, suficient grounds or reasons for withdrawal shall be placed before the court to enable the court exercise its diiscretion whether to allow the withdrawal or not.
.3 Mks:
(d) Under section 308(2) ACJA,, a Magistrate may instead of writing the Judgement, record briefly in the book, his decision or finding and his reason for the decision or finding, and then deliver an oral judgment. The Magistrate, in this case simply delivered an oral udgment’ without first briefly stating in his record book his decision or finding or reasons for the decision:Phe judgment is’ thçreforea nullity because it violates section 294 of the 1999 Constitution and secion 308 ACJA.
2 Mks
(e) The appcal would befiled at the registry of the Chief Magistrate Court Bwari being the court from which the appeal is brought. See section 485 (3) ACJA..
1 Mk
(f) The Omnibus ground of appeal, failure of the Chief Magistrate to hear final addresses of parties, and the oral judgment would be areas of appeal against the decision.
GROUNDS OF APPEAL
1. The decision of the learned Chief Magistirate is unreasonable and cannot be supported having regard to the evidence adduced.
2. learned trial Chief Magistrate erred when he convicted the appellant without affording him an opportunity to address the court.
3. learned trial Chief Magistrate erred when he delivered an oral judgment
PARTICULARS
The chief Magistrate failed to state briefly in his record book his decision or finding and the reason for the decision or finding
3 Mrks.
Total Mks=15
COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
BAR PT II EXAMINATIONS
AUGUST 2017
CRIMINAL LITIGATION
MARKING SCHEME
SECTION B
QUESTION 4:
(a)-Question 1 is a leading question: s. 221(1) E.A
Yes, I would have objected to this question This is because, although the question is introducton, it is disputed and the qualification has not been sufficiently proved. S. 221(3) E.A
2 Mks
(b) A court has a discretion to allow an othewise Leading question examination-in-chief. S. 220(2) E.A. In the circumstances of this case the Court ought not to haveallowed the leading question as the question is a crucial matter in issue. See S. 221.(3) E:A
3 Mks
(c)-Question 4 is an open question
It allows the witness to tell his story
If is an open questionis is sked in cross exanmination, it may allow the witness to fill the gaps in examination in chief. Closed questions are preferable in cross eXamination.2 Mks
(d) Question 6 is’l a leading question. It suggests that à finding was made. As the prosecuting counsel, I would ask him: ‘At the conclusion of the autopsy what did you do?
2 Mks
e)I agree with the defence counsel on the objection to the photocopy of the autopsy report. The autopsy repot is a public document and only an original OR a CTC is acmisible. s. 102(b), 105 E A
2 Mks
(f) Do you have the autopsy report in court?
where is the original of the autopsy report?
Since you do not have the original, what do you have?
If you see the Certified True Copy, will you be able to recognise it?
How will you recognise it?
2 Mks
(g) It is a risk. This is because, the answer may be detrimental to your case. 1 Mk
QUESTION 4(b).
(i) The charge wil be bad for offending the rule against dupiicity. s.
152 ACJL. 1 Mk
(ii) The rule against misjOinder, of offences postulates that for every distinct offence With which a person is accused, there shall be a Separate charge on it and every such charge to be tried separately.
An exceptionito this rule is where a person is accused of several
Offences in thecourse of the same trainsaction, such a person can be charged and tried in one trial, S.153(111) ACJL
Filing three separate charge sheets in this case offends this rule.
3 Mks
(iii) John Okri should make a fresh application to the Bayelsa State High Court and not appeal to the Federal High Court. S. 23 CPL.
2Mks
(iv)This offends the rule against double trial (jeoprdy) under section 36(9), 1999 Constitution (as amended). Buba James can raise tne bar plea of autre fois convict .
2 Mks
(v) A defendant must meet certain conditions before he can be
admitted to bail. The conditrons for grant of Bail include:
The nature and gravity of the offence
The severity of the punishment and the character of the evidence. See The State v. Felix (1979) L.R.N 308
Whether there is likelihood that the accused will interfere with police investigation if admitted to bail. See Dantata v. I.G.P (1958) N.R.N.L.R. 3
The criminal antecedents of the accused person. Eyu v. The State (1988) 2 N.W.L.R. (pt.78) 602 at P.610
The prevalence or frequency of such offences. See The State v. Felix (supra)
The likelihood of the accused committing another offence if admitted to bail. See R v. Jammal (1941) 16 N.L.R.54
The health condition of the accused person. . See Fawehinmi v. The State (1990) N.W.L.R (pt.127) 486
QUESTION 6
E. The denial of the right of audience to the counsel to the 2nd defendant by the Court martial on the grounds that he is not a member of the armed forces is Completely wrong. The constitution allows every person charged with a criminal offence the right to defend himself’either in pérson or by a legal practitioner of his choice. See section 36 (6) (c) of the 1999 constitution (as amended). See also Uzodinma v. C.O.P.
3 Mks
F. The nolle.prosequi entered by the Attorney Generàl and upheld by the court martial was wrong. This is because the Attoney Gerieral lacks the powers to institute, undertake or discontinue criminal proceedings before a court martial. See section 174 (1) of the 1999 Constitution (as amended).
2 Mks
Total Mks-15
