2020 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN CRIMINAL LITIGATION (JANUARY)
NIGERIAN LAW SCHOOL
BWARI – ABUJA
BAR FINALS EXAMINATIONS
CRIMINAL LITIGATION
TUESDAY 14TH JANUARY, 2020 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)
Uwakwe Obumseli, Umezinne Oyemli, Ogara Dialoke, Bassey Dikibo and Shonto Dike on 1 October, 2019 met at Uwakwe Obumseli’s house at No. 10 Uwani Road, Benin City, Edo State, Nigeria. The five resolved to take certain steps that will tum their lives around to become billionaires before 31st December, 2019.
To actualise their plan, the gang leader- Uwakwe Obumseli went to one Christopher Tolgate of No. 5 Miliki Avenue, Benin City to buy five brand new AK 47 rifles. The gang proceeded to a forest along Benin/Ore Federal Fighway where they perpetrated the atrocities. On the 28th October, 2019, Chief Everest Pam who was travelling from Benin to Lagos was stopped at gun point and taken hostage inside the forest for 10 days. Chief Everest was not released until the sum of N50,000,000.00 (Fifty Million Naira) only was paid as ransom to the gang Also, on the 31 October 2019, the gang at the’ same place kidnapped one Barrister Sunday Ego and kept him in their custody for 20 days. Barrister Sunday Ego was not released until his relations paid the sum of N100,000,000.00 (One Hundred Million Naira) only to the gang.
On the 2nd November, 2019, the gang again stopped one Madam Fine face Gidiga who was kept in the forest for 17 days. While she was in their custody, Madam Fine face Gidigba was raped severally by the gang leader Uwakwe Obumseli and Umezinne Oyemli She was not released until the sum of N10.000.000.00 Ten Mllion Naira) only was paid by her husband Chief Wilson Gidigba to the gang. However, on the 5 November, 2019, the Policemen from Benin City Central Police Command went arter the gang in the forest. There were hot exchange of gun between the gang and the Police in an attempt to arrest them in the process, Sergeant Kokori Kagina was hit by bullet fired by Shonto Dike and he died on the spot. Uwakwe Obumseli, Umezinne Oyemi, Ogara Dialoke, Bassey Dikibo and Shonto Dike have been arrested by the Nigeria Police and they are to be arraigned in Court.
The Attorney-General has instructed a State Counsel, P. K. Dulak, Esq, to file information against the suspects.
Draft the information.
THE LAW-CRIMINAL CODE
SECTION319 (1)-Subject to the provisions of this Section, any person who commits the offence of murder shall be sentenced to death.
SECTION 364 (2)- Any person who unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to Court for his release or from disclosing to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned, is guilty of a felony, and is liable to imprisonment for ten years.
SECTION 365- Any person who unlawfully detains another in a place against his will or otherwise unlawfully deprives another of his personal liberty, is guilty of a misdemeanour, and is liable to imprisonment for two years.
SECTION 358-Any person who commits the offence of rape is liable to imprisonment for life.
SECTION 428 (d) – Any person who shall have in his possession and not give a satisfactory account of his possession of any arms, ammunition, clothing accoutrements, medals or other appointments, furnished for the use of the Armed Forces of Nigeria or of the Police Forces, is liable to a fine of N1,000.00 (One Thousand Naira) only or to pay double the value of all or any of the several articles which he shall so become or be possessed of.
SECTION 402
A person who commits the offence of robbery is liable to imprisonment for fourteen years. IF the oftender is armed with any dangerous or offensive weapon or instrument and is in comparny with one or more other person or persons, or if at or immediately before or immediately after the time of the robbery, he wounds or uses any other personal violence to any person, he is liable to imprisonment for life with or without caning
SECTION 516-Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Nigeria would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years, or if the greatest punishment to which a person convicted of the felony in question is liable to less than imprisonment for seven years then to such lesser punishment.
QUESTION 1(b)
As the prosecuting Counsel, there is a need to remove a count and replace it with another (new count) in the course of the trial. Briefly explain how this can be achieved.
QUESTION 2
During the last flooding of some States in Nigeria including Bayelsa, many lives were lost, houses submerged and properties worth milions of naira lost. Yenagoa, the capital of Bayelsa state was heavily flooded and as a result, many people left their homes. Some miscreants used the opportunity to break into people’s homes in the affected areas to steal. Four of them, Tare, Timi, Bolupe and Dokubo were arrested by the police and detained at the police station pending the conclusion of investigation.
On 1 December, 2019, the defendants were arraigned before the Federal Hligh Court, Yenagoa for conspiracy, malicious destruction of property and stealing by the Attorney-General of the Federation, who described the flood as a national disaster.
When the charge was read and explained to the defendants, Timi pleaded not guilty for himself and on behalf of the other defendants. The defendants application for bail was refused. The Judge in his ruling described the defendants action as a crime against humanity.
The Prosecution called five (5) witnesses, two of whom were local divers and fishermen respectively, who actually caught the defendants carting away peoples properties during the flood disaster. At the conclusion of the prosecutions case, the defendants decided to rest their case on that of the prosecution.
Now answer the following questions:
(a) As defence Counsel, what preiminary objections would you raise in respect of the above scenario?
(b) Draft the Notice of Preliminary Objection ONLY (without any supporting document)
(C) Comment on the Attorney-General of the Federation’s reason for the arraignment and his power to do so.
(d) Comment on Timi’s plea for himself and on behalf of the other defendants.
(e) Was the defendants’ decision to rest their case on that of the prosecution? Give reasons for your answer, stating the legal implication of such decision.
(f) Comment on the trial Judges reason for refusing the defendants’ application for bail.
(g) Draft the application for bail ONLY (without any supporting documents)
QUESTION 3
A case of conspiracy to commit murder and murder was reported against Ika and Boji at the Ilishan Police Station in Ogun State. They were alleged to have conspired and murdered one Beauty, Ika’s girlfriend who had been threatening to expose their affair to Ika’s wife. At the Police Station after being tortured, starved and denied access to Counsel and family for two weeks, Ika wrote a confessional statement admitting that they both committed the offences, but Boji denied vehemently.
Upon arraignment, Ika pleaded guilty and was promptly convicted and sentenced to death by firing squad. Boji pleaded not guilty. At the close of the Prosecution’s case, Boji’s Counsel made a No Case Submission, which was upheld by the court. In a 50-page ruling discharging him, the Judge thoroughly analysed the case.
Boji was excited, bùt as soon as he stepped out of the dock, he was re-arrested by the Police, who subsequently re-arraigned him for the same offences, stating that he had merely been discharged and not acquitted. The Solicitor-General of Ogun State was however furious about this development and has personally come to the court to enter a ‘nolle prosequi’ in the case.
With the aid of relevant judicial and statutory authorities, comment on the propriety or otherwise of:
(a) the detention of the suspects at the Police Station.
(b) The admissibility or otherwise of the confessional statement of Ika and whether or not it can be used against Boji.
(c) The arragnment, conviction and sentence of lka.
(d) The ruling on the No Case Submission by Boji and his subsequent re-arrest by the police.
(e) Entery of nolle prosequi by the Solicitor-General
SECTION B
________________________________________________________________
QUESTION 4
Elbert Demiss, an expatriate attached to Abakiliki Special Rice Processing Company Ltd was arraigned at an Abakiliki High Court on a two-count information of indecent assault and rape. At his trial, the prosecution, in a bid to prove its case, called Dr. Ogbunigwe, a consultant gynecologist from EBSU Teaching Hospital as PWI. During his testimony the following transpired.
1. Prosecuting Counsel: you are Dr Ogbunigwe Consultant Gynecologist, fellow Nigerian Medical College and President, Nigerian Society of gynecologists?
Answer: yes, my Lord
2. Prosecuting Counsel: you examined the prosecutrix in this case and wrote a report, am I right?
3. Defence Counsel: objection my Lord. Counsel is leading the witness
4. Court: objection overruled. Please continue
5. Prosecuting Counsel: please tell the court everything you know about this case.
Answer: I examined the prosecutrix and found evidence of penetration and injuries in her private part. The summaries of my findings are in my report
6. Prosecuting Counsel: My Lord, I apply to tender the report in evidence
7. Defence Counsel: Objection my Locd, counel has not laid proper foundation to tenderig this report
8. Court: Objection sustained counel please lay proper foundation
9. Prosecuting Counsel: do you have any other thirg to tell this Court
Answer: No my Lord. Just a few words
10. Court: Defence counsel, do you have any question the semes
Answer Yes my Lord, Just a few questions
11.. Defence Counsel: Dr Ogbunigue. You are e a notorius abortonist who have been sactioned severerally by the Medica and Dental Council for Unprofessional conduct. I’m I correct?
. Prosecuting Counsel: My Lord I objet to the above question, counsel is the witness
12. Court: Question sustained, please continue.
Answer the following questions
(a) What type of question is quesson 1? is it allowed in this case
Gve reasons
(b) What type of questions is question 2? Was the court right in overruling the objection?
(c) What type of questions is question5 and what are its use in examination-in-chief?
(d) Comment on the validity of defence counsel’s objection to the application in (6) above? Was the court right in upholding the cbjections?
(e) In five paragraphs stated and numbered chronologically, outline how you will lay proper foundation for tendering of the report in this case
(f) Comment on the propriety of the question asked by defence counsel in (11) above. Was the court rght in sustaining the objection?
(g) What possible remedies are cpen to the witness against the question put to him by the deence counsel in this case?
QUESTION 5
At the trial of Balogun Akpati for murder before Justice Adetokumbo of Ogbomosho High Court, the charge was read to him in Yoruba language by the Youth Corps member attached to the court who speaks Yoruba fluently. The defendant refused to plead. The judge in anger recorded a plea of not guilty for him and ordered the prosecution to open its case, Out of the 10 witnesses listed on the back of information, the prosecation called on three, excluding the only eye witness to the murder and the investigating police officer. Atthe close of the case for the prosecution, the defendant opted for ‘a no case submission’
The learned trial judge, Adetokumbo J, overruled the no case submission as follows:
This no case submission is without merit and same is hereby overruled”. The matter was adjourned for detence. On the date fixed for defence, counsel to the defendant was bereaved and could not attend court. The defendant informed the court about this development and sought for an adjournment, but the judge refused the application.
He read out the options open to the defendant to him and he elected to remain silent. In the prosecutions final address, he urged the court to convict the defendant because his silence was an indication of his guilt. He was convicted and sentenced to death by firing squad after his allocutus was rejected by the court,
Answer the following questions:
1. Comment generally on the validity of the arraignment in this case?
2. Was there any obligation on the court when the defendant refused to plead? Give reasons for your answer.
3. What is the implication of the decision of the prosecution to call only three (3) witness out of the ten (10) listed on the information?
4. What effect does the short ruling on the no case submission have on the trial, assuming the ruling is appealed against?
5. Comment on the propriety or otherwise of the refusal of application for adjoumment in this case.
6. Discuss the implication of the comment by the prosecution on the trial.
7. Comment on the validity of the sentence of the court in this case.
QUESTION 6
Justice Ikeme Popoola of the Federal High Court Lagos is presiding over the trial of Arizone Gilmor, Perikoma Brumah and Ayatola Briggs for unlawful possession of cocaine. At their arraignnment on October 15th 2019 and before the charge was read, the Attorney-General of the Federation through a State Counsel made an oral application to take over the proceedings which was objected to by the prosecuting counsel from NDLEA and the objection was upheld by the court. The Legal Assistant to the Judge read the charge in block and the plea was taken in block.
Before plea was taken objection was raised on grounds of duplicity but overruled by the court. The application by the defence Counsel for stay of proceedings pending appeal on the ruling of the court refusing the bail application was also refused.
At the trial the prosecution called two of its witnesses but before the third witness was called the Judge was elevated to the Court of Appeal. An application by the prosecution for fiat to enable justice Popoola to continue with the proceedings despite the elevation was opposed by the defence counsel.
Answer the following questions with the aid af judicial and statutory authorities.
(a) Comment on the propriety or otherwise of the Attorney-General’s application to take over the proceedings before the arraignment of parties in Court.
(b) Comment on the propriety or otherwise of the charge being read by the Judge’s Legal Assistant.
(c) Comment on the propriety or otherwise of the reading of the charge in block and taking of the plea in block.
(d) Comment on the propriety or otherwise of the refusal of the application for stay of proceedings by the Judge.
e) In the circumstances of the case, comment on the propriety or otherwise of the request by the prosecution for a Judge of the Federal High Court elevated to the Court of Appeal to continue to preside over the trial previously holding before him at the Federal High Court.
COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
JANUARY 2020
BAR PART II EXAMINATION
CRIMINAL LITIGATION
MARKING SCHEME
SECTION 1
CRIMINAL LITIGATION SECTION A
QUESTION 1(A) (COMPULSORY)
IN THE HIGH COURT OF EDO STATE
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
CHARGE NO…………………
BETWEEN:
THE STATE COMPLAINANT
AND
1. UWAKWE
2. OBUMSELI 3.UMEZINNE 4.OYEMLI OGARA 5.DIALOKE
6.BASSEYDIKIBO DEFENDANTS
7.SHONTO DIKE 8.CHRISTOPHER TOLGATE
At a session holding at Benin on the …………day of……..2020, the Court is informed by the Attorney General of Edo State on behalf of the State that the following persons:
UWAKWE OBUMSELI UMEZINNE OYEMLI OGARA DIALOKE BASSEY DIKIBO SHONTO DIKE
CHRISTOPHER TOLGATE; are charged with the following offences:
COUNT ONE
STATEMENT OF OFFENCE
CONSPIRACY contrary to section 516 of the Criminal Code Law of Edo State
PARTICULARS OF OFFENCE
Uwakwe Obumseli, Umezinne Oyemli, Ogara Dialoke, Bassey Dikibo and Shonto Dike on 1stof October, 2019 at No 10 Uwani Road, Benin City, Edo State, within the Benin Judicial Division conspired or agreed to commit felony.
COUNT TWOSTATEMENT OFOFFENCE
MURDER contrary to section 319(1) of the Criminal Code Law of Edo State PARTICULARS OF OFFENCE
Uwakwe Obumseli, Umezinne Oyemli, Ogara Dialoke, Bassey Dikibo and Shonto Dike on 5thof November, 2019 at the forest along Benin/Ore Federal Highway, Edo State, within the Benin Judicial Division shot and killed Sergeant Kokori Kagina
COUNT THREE STATEMENT OF OFFENCE
UNLAWFUL IMPRISONMENT/KIDNAPPING contrary to section 364(2) of the Criminal Code Law of Edo State
PARTICULARS OF OFFENCE
Uwakwe Obumseli, Umezinne Oyemli, Ogara Dialoke, Bassey Dikibo and Shonto Dike on 28thof October, 2019 at the forest along Benin/Ore Federal Highway, Edo State, within the Benin Judicial Division abducted and unlawfully imprisoned Chief Everest Pam for a ransom of N50,000,000.00 (Fifty Million Naira)
COUNT FOUR STATEMENT OF OFFENCE
UNLAWFUL IMPRISONMENT/KIDNAPPING contrary to section 364(2) of the Criminal Code Law of Edo State
PARTICULARS OF OFFENCE
Uwakwe Obumseli, Umezinne Oyemli, Ogara Dialoke, Bassey Dikibo and Shonto Dike on 31stof October, 2019 at the forest along Benin/Ore Federal Highway, Edo State, within the Benin Judicial Division abducted and unlawfully imprisoned Barr. Sunday Ego for a ransom of N100, 000,000.00 (One Hundred Million Naira)
COUNT FIVE
STATEMENT OF OFFENCE
UNLAWFUL IMPRISONMENT/KIDNAPPING contrary to section 364(2) of the Criminal Code Law of Edo State
PARTICULARS OF OFFENCE
Uwakwe Obumseli, Umezinne Oyemli, Ogara Dialoke, Bassey Dikibo and Shonto Dike on 2ndof November, 2019 at the forest along Benin/Ore Federal Highway, Edo State, within the Benin Judicial Division abducted and unlawfully imprisoned Madam Fineface Gidigba for a ransom of N10,000,000.00 (Ten MillionNaira)
COUNT SIX
STATEMENT OF OFFENCE
UNLAWFUL POSSESSION OF FIREARMS contrary to section 428(d) of the Criminal Code Law of Edo State
PARTICULARS OF OFFENCE
Uwakwe Obumseli, Umezinne Oyemli, Ogara Dialoke, Bassey Dikibo, Shonto Dike and Christopher Tolgate on 28thof October, 2019 at No 5 Milki Avenue, Benin City, Edo State, within the Benin Judicial Division were in unlawful possession of firearms (AK 47 Riffles).
COUNT SEVEN
STATEMENT OF OFFENCE
RAPE contrary to section 358 of the Criminal Code Law of Edo State PARTICULARS OF OFFENCE
Uwakwe Obumseli and Umezinne Oyemli, on 2ndof November, 2019 at the forest along Benin/Ore Federal Highway, Edo State, within the Benin Judicial Division raped Madam Fineface Gidigba.
DATED……………DAY OF 2020
……………………………
P.K DULAK ESQ. STATE COUNSEL
FOR: ATTORNEY GENERAL OF EDO STATE
QUESTION 1B
As a prosecuting counsel, in order to remove a count from the charge and replace it without a new count, I will bring a formal application seeking the leave of court to amend thecharge.
The application will be by motion on notice supported with an affidavit stating the reasons for the amendment and exhibiting the proposed amendment and a writtenaddress.
QUESTION 2
a) As defence counsel, the preliminary objections I will raiseare:
That the federal High Court lacks jurisdiction to try theoffence
Secondly, that the Attorney General of the Federation is not the appropriate prosecutorial authority to prosecute theoffences.
b) Draft of Notice of preliminaryobjection:
IN THE FEDERAL HIGH COURT OF NIGERIA IN THE YENAGOA JUDICIAL DIVISION HOLDEN AT YENAGOA
CHARGE NO………………
BETWEEN:
THE FEDERAL REPUBLICOFNIGERIA COMPLAINANT/RESPONDENT
AND TARE
TIMI DEFENDANTS/APPLICANTS
BOLUPE DOKUNBO
NOTICE OF PRELIMINARY OBJECTION
BROUGHT PURSUANT TO SECTION 251 & 174 OF THE 1999 CONSTITUTION OF THEFEDERAL REPUBLIC OF NIGERIA (AS AMENDED) AND WITHIN THE INHERENTJURISDICTION OF THIS HONOURABLE COURT
TAKE NOTICE that at the trial of the above charge the Defendant/Applicants intends by way of preliminary objection to challenge the competence of this trial, and may be heard praying this Honourable Court for an Order striking out the charge and discharging thedefendants.
AND TAKE FURTHER NOTICE that the grounds on which the Defendant/Applicant intends to rely on are as follows:
The Federal High Court lacks the substantive jurisdiction to try the allegedoffences.
The Attorney General of the Federation is not the appropriate prosecutorial authority to prosecute theoffences.
DATED THIS ……………..DAYOF 2019
………………………….. Samuel Ayodeji Esq Counsel to the Defendants Excellus Law Firm
10 Yaba Road, Lagos
FOR SERVICE ON:
Attorney General of the Federation Federal Ministry of Justice
No 1 Ikoyi Hall, Lagos
c) The power of the Attorney General of the Federation to institute criminal proceedings is restricted to offences made pursuant to an Act of the National Assembly. He can only prosecute a state offence with the fiat of the Attorney General of the state; section 174 CFRN; Edet vState
In the instant case, the reasons given by the Attorney General of the Federation that the flood is a natural disaster does not bring the offences committed by the defendants within his powers. Therefore, he lacks the power to prosecute the offences
d) The position of the law is that plea must be personal; thus where there are several defendants, each defendant must plea personally to the charge; R v Pepple. Therefore, the plea of Timi for himself and the other defendants was wrong and renders the trial invalid.
e) No, the defendants were wrong to have rested their case on that of the prosecution, this is because the evidence of the prosecution is overwhelming (from eye witnesses) and clearly implicated thedefendants.
The legal implication of resting their case on that of the prosecution is that the defendants are adopting the evidence of the prosecution and have elected not to lead evidence nor call witnesses. The court can convict based on such evidence if it is sufficientenough;
Babalola v State, Igabele v State
f) A judge has discretion to grant or refuse to grant bail, however such discretion must be exercised judicially and judiciously. In the instant case, the offence committed by the defendants are bailable offences therefore the reasons given by the court in refusing to grant bail was improper and unlawful; Bamaiyi vState.
g) Draft application for bail (Note: you can draft motion or summons)
IN THE FEDERAL HIGH COURT OFNIGERIA
IN THE YENAGOA JUDICIAL DIVISION HOLDEN AT YENAGOA
CHARGE NO………………
BETWEEN:
THE FEDERAL REPUBLICOFNIGERIA COMPLAINANT/RESPONDENT
AND TARE
TIMI DEFENDANTS/APPLICANTS
BOLUPE DOKUNBO
SUMMONS FOR BAIL
BROUGHT PURSUANT TO SECTIONS 35(4), S. 36(5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED), SECTION 341(2) and (3) OF THE CRIMINAL PROCEDURE CODE ACT AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT
LET ALL PARTIES attend at this Honourable court on the …….day of ……. 2019 at the Hour of 9 O‟clock in the forenoon or so soon thereafter on the hearing of an application for bail by counsel on behalf of the Accused person/ Applicant for:
AN ORDER admitting the Defendants/Applicants to bail pending the determination of the trial before thiscourt.
AND FOR SUCH ORDERS OR FURTHER ORDERS as this Court may deem fit to make in the circumstances.
DATED THIS ………DAYOF 2020
FOR SERVICE ON:
The Hon. Attorney-General of theFederation Federal Ministry ofJustice
This Summons was taken out by:Emokiniovo Dafe-Akpedeye (Applicant‟s counsel)
No. 15 Law School Close, Bwari, Abuja,
QUESTION 3
a) A person arrested is entitled to his or her fundamental which includes; right to bail, right to dignity of human person, right to counsel of his choice and above all right to be charged to court within a reasonable time; Section 34 & 35 of the 1999 Constitution of Nigeriaas amended. In the instant case, the detention, torture, starvation of the suspects and their denial of access to a lawyer is unlawful and a breach of their fundamental humanrights.
b) A confessional statement is only admissible if it was made voluntarily; section 29(2) Evidence Act. In this case, Ika was tortured before making the statement and therefore it is inadmissible; Adamu v State; Mohammed vState.
On the other hand, a confessional statement is only admissible against the maker and it is not binding on a co-defendant unless he admits it expressly or by conduct; section 29(4) of the Evidence Act. Therefore the confessional statement of Ika if admitted cannot be used against Boji.
c) The position of the law is that where a defendant pleaded guilty to a capital offence, the court shall record a plea of not guilty for him and proceed with the trial; Olabode v State; Udofia v State. Secondly, the sentence for murder is death by hanging and not death by firing squad. Therefore the arraignment, conviction and sentence of Ika are invalid, null andvoid.
d) The position of the law is that where a no case is rightly upheld, it will amount to a discharge and acquittal. Therefore, the defendant cannot be arraigned or tried again for the same offence; Emedo v State; Odofin Bello v State. In the instant case, the re-arrest of Boji by the Police for the same offence was wrong andunlawful.
e) It is on the Attorney General that can enter nolle prosequi orally; section 211 CFRN; Chukwurah v State. An officer of the office of the Attorney General can only enter nolle with a written authorization signed by the Attorney General. Therefore the nolle prosequi entered by the Solicitor General is unlawful andinvalid.
SECTION B
QUESTION 4 (COMPULSORY)
a) Question is a leading question. It is not allowed in this case. This is because leading questions are generally not allowed in examination in chief. Although it may be allowed in introductory matters, in this instance it bothers on the qualifications and experience of the witness who is an expert; section 221(1) & (2) of the Evidence Act2011.
b) Question 2 is also a leading question. No the court was wrong to have overruled the objection because leading questions are not allowed in examination inchief.
c) Question 5 is an open question. It is used in examination in chief to enable a witness give his testimony from his or her personal knowledge and experience. It is used in order to make the testimony of the witness more believable by thecourt.
d) In trials, proper foundations must be laid before a document whether private or public can be tendered in evidence. In this case, the Prosecuting counsel did not lay the proper foundation therefore the defence counsel‟s objection was validly raised and was rightly upheld by the court.
e) I will lay the proper foundation by asking the witness the followingquestions:
You said you made a report of yourfindings?
Do you have the Report incourt?
If you see the report would you be able to identifyit?
How would you identifyit?
Is this the Report you made?
My Lord I seek to tender the Report as evidence in this case
f) The question asked by the Defence Counsel is a scandalous, vexatious and purposely intended to annoy the witness, such questions are not allowed in Cross examination; section 227 and 228 of the Evidence Act. Therefore it was not proper and the court was right in sustaining the objection by the prosecutingcounsel.
g) The possible remedies available to the witness against the question put to him by the defence counsel is either to avoid answering such questions or urge the court to caution the defence counsel from further asking suchquestions.
QUESTION 5
1. The procedure for a valid arraignment is that the defendant will be brought to court unfettered, the charge read (in English language) and interpreted to the defendant in the language he understands (if he does not understand English language) by the Registrar or any other officer of the court and the defendant will then take his plea; Edu v COP, Kajubo v State.
In the instant case, the charge was read in Yoruba language instead of English, secondly it was read by a Youth Corper posted to the court who neither qualifies as a Registrar nor as an officer of the court, therefore the arraignment was invalid; IGP v Rossek
2. Yes there was an obligation on the court when the defendant refused to plead. This is because the court ought to have enquired or investigated into the reason for the refusal to ascertain whether it was out of malice or visitation of God; Gaji v State;; Yesufu vState
3. There is no implication if the prosecution decides to call three (3) out of the ten (10) witnesses listed on the information. This is because the prosecution not bound to call any number of witnesses in prove of his case unless the offence is one that requires corroboration; section 200 Evidence Act; Adaje v State. However the prosecution is enjoined to always call the vital witnesses for example an eye witnesses as much as possible; Ogbodu vState
4. The effect of the short ruling on the no case submission is that it makes the ruling invalid. This is because although a ruling on a no case submission should be brief, it should contain the decision of the court on the issues raised in the no case submission; Odofin Bello v State; Atano v. Attorney General Bendel; R v Ekanem. Therefore, the ruling will be set aside on appeal.
5. A defendant is entitled to adequate time and facility in order to prosecute his defence; section 36(6)(b) CFRN; Udo v State, therefore he is entitled to reasonable adjournment to enable his counsel appear in court. In the instant case, the court was wrong to have refused to grant the adjournment.
6. A defendant has the right to remain silent during his trial; Igabele v State. Although the prosecution may comment on the silence of the defendant, he is not allowed to suggest that by remaining silent, the defendant is guilty ascharged.
In the instant case, the comment of the prosecution on the silence of the defendant was wrong.
7. The sentence for murder is death by hanging and not death by firing squad. Therefore, the sentence of the court in this case (i.e. death by firing squad) is notvalid.
QUESTION 6
a) One of the constitutional powers of the Attorney General of the Federation is the power to take over and continue any criminal proceedings at any stage before judgment; section 174 of the 1999 Constitution of Nigeria as amended. This power is absolute and cannot be challenged, Amaefule v State. It was therefore proper for the Attorney General of the Federation to have applied to take over the prosecution of thedefendants.
b) The procedure for a valid arraignment is that the charge is to be read by the Registrar or any officer of the Court. The Legal Assistant to the judge is not an officer of the court and it was therefore wrong for him to have read thecharge.
c) The position of the law is that during arraignment where there are several counts/charges, each count/charge must be read separately and plea taken separately on each count; Ayinde v State. In the instant case, it was improper for the charge to have been read in block and the plea also taken in block. The arraignment is invalid; Amachukwu v State
d) Under section 306 of Administration of Criminal Justice Act (ACJA) 2015, no application for stay of proceedings shall be entertained by the court. Therefore the judge was right to have refused the application for stay ofproceedings.
e) The general rule is that an elevated judge from the High court or Federal High Court to the Court of Appeal may be allowed to continue to preside over the case in order to conclude same; section 396(7)ACJA.
The condition for the above is that the case must be part-heard (i.e. the defence must have opened its case). Therefore in the instant case, the request by the prosecution for the elevated judge to continue with the case was not proper since the matter cannot be said to be part- heard under section 494 ACJA
