STAGE FOUR-Draw up the questions you intend to ask in proof of your case and questions to ask in cross examination
STAGE FIVE-Identify and study the case law and statute you may use in court.
STAGE SIX-Plan your fall back options
STAGE SEVEN-Hold pre trial chambers meeting.
Preparation of witnesses for trial
Note that briefing or prepping is not the same as pre-trial coaching
E.g. of pre-trial briefing include: take witnesses to court to witness an actual trial; enlighten the witness that the court is there to protect them e.g. opposite counsel will not be allowed to badger them or abuse them
Note: (preparing the IPO as witness) - the service number and rank of police officer are relevant as introductory issues in examination in chief. IPO to state how the report by Mrs Agbo was made and interviewing her. Did he arrest anyone and take their statements and how the statements were taken (i.e. no torture). The report of the identification parade and how it will be introduced in court. Exhibit keeper will have assigned a number to the bike recovered – so IPO has to explain the chain of custody (where was the bike recovered, who did he hand it over to, what is the assigned number to the bike). In his investigation, bank would have given the IPO a statement of account and this would form part of the evidence
Trial Plan (Ene Agbo scenario): Prosecution’s trial plan
Law under which the charge is brought
Section 296 Penal Code for robbery
Section 286 Penal Code for theft
Section 97(1) Conspiracy
Evidence of Elements of the offence
Testimony of Mrs Ene Agbo
Result of the identification parade
The bike that was used in the commission of the crime
To use the video, must lay down the proper foundation for admissibility
Testimony of the clerk
Documents to be relied on
Bank teller showing the withdrawal of money
Challenges/weaknesses of case
No eye witness testimony
Up to 5yrs imprisonment
Conviction on all charges
Defence’s trial plan
No eye witnesses at the scene of the crime
Defence of alibi – produce the witnesses to the Jollywell Hotel, Wuse. Testimony of the accused persons and witnesses
Due process not followed – identification parade requires a minimum of 8 people for 1 suspect and 12 people for 2 suspects of the same physical build
Stating that the bike doesn’t belong to the defendant
Documents to file
Defendant’s statement made at the police station when they were arrested
Acquit the defendants on all charges
Burden of proof: Obligation of the party to adduce evidence or to prove a case. It is the person’s obligation to do something. Legal burden and evidential burden. The legal burden of proof is on the prosecution. It never shifts. It is static. Standard of proof: duty of a party to prove a case by producing the quantum of evidence required by law.
a. General burden of proof/ Legal Burden of Proof; or
b. Evidential burden of proof
GENERAL BURDEN OF PROOF
The general burden of proof in a criminal matter is on the prosecution. Prosecution’s duty to establish/proof the ingredients of the offence. Prosecution must discharge this legal burden and it is fixed by law (Constitution, CPL, CPCL, ACJL)
S. 135(3) of the Evidence Act 2011: If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
SECTION 36(5) CFRN 1999: Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty
SECTION 135(2) EVIDENCE ACT 2011(he who asserts must prove).
WOOLMINGTON v. DPP
Sections 132, s135(2) Evidence Act shows that the burden of proof is static. S135(2): whenever a commission of crime is in issue in any case, the burden of proof is on the party who alleges the crime. Right to silence. It is not for the accused to prove his innocence: s36(5) Constitution. Failure of accused to testify does not imply guilt: Mbele v The State (1990). The prosecution shall prove the ingredients of the offence. Accused not bound to prove his innocence i.e. not compelled to give evidence in his trial (s36(11) Constitution). Habibu Musa v The State (2013) 9 NWLR (Pt. 1359) 214
SHIFT OF BURDEN OF PROOF TO THE ACCUSED PERSON (evidential burden)
The burden of proof in criminal cases rests on the prosecution and that burden never shifts.
However, S. 36 (5) CFRN recognises the fact that any law may impose on the accused the burden of proving particular facts. Such burden may be found in SS. 139, 140, 141 Evidence Act. The obligation of a party to produce evidence to establish a particular issue or matter in a case. The evidential burden may shift. Evidential burden is similar to that in civil case – he who assert, must prove.
a. Burden of Proving Reasonable Doubt
If the Prosecution proves the commission of a crime beyond reasonable doubt, the defence may adduce evidence at the close of the Prosecution’s case to enable it raise some doubts in the mind of the court as to the guilt of the accused: Section 135 (3) Evidence Act 2011
When accused has the burden of proof
b. Burden to Prove Exemption, Exception or Qualification in statutes: s141 EA
JOHNSON v. COP.
c. Facts peculiarly within the knowledge of the Accused:
Section 140 Evidence Act;
Otti v. Police (illegal moneylender)
Rahman v. COP (case of a pilot)
d. Defence of Intoxication and Insanity
Section 139 (3)(c): presumption of sanity; S. 27 Criminal Code
e. Special plea of autre fois acquit and autre fois convict
f. Burden imposed by statute e.g. if a person is arrested with substances suspected to be cannabis and the accused states he has the licence (e.g. works for a drug manufacturing company), the person must show by evidence the licence and that he is working for the company.
DISCHARGE OF EVIDENTIAL BURDEN OF PROOF
The burden of proof placed on the defendant may be discharged by evidence from prosecution or the defence: s139(2) EA
Thus, the evidential burden of proof placed on the defence/accused above can be discharged either by:
Direct evidence of the prosecution
Indirect evidence from the cross-examination of the Prosecution’s witnesses-S. 139(2) of the E.A
B-STANDARD OF PROOF REQUIRED IN CRIMINAL MATTERS
Standard of proof is the quality or quantity of evidence required to convince the Court of facts asserted in the matter. The standard of proof required is beyond reasonable doubt: S.135 (1) of the Evidence Act.
The above does not however mean it is beyond a shadow of doubt-BAKARE VS. STATE; MILLER v. MINISTER OF PENSIONS;
Failure of accused to explain certain facts within his knowledge is not a valid ground for holding that the case was not proved beyond reasonable doubt. IGABELE V. STATE
Whenever there is any doubt, the accused person is made to take benefit of the doubt-ABDULLAHI v. STATE,
If the standard stipulated by the law in proof of a particular case or claim is not met, it is said that the burden placed on the party has not been discharged.
However, the standard of proof of criminal defences or exemptions etc is on the balance of probabilities: s137 EA
Admissibility of evidence
Admissibility is the same as the reception or receivability of evidence in court
Evidence must be relevant to be admissible but not every relevant evidence is admissible
Evidence must satisfy any condition stipulated by the Evidence Act before it can be admissible
Improperly obtained evidence is admissible it if its relevant: s14 EA
However, a court may exclude improperly obtained evidence where the “court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence”: s14 EA
S15 EA: factors guiding the court in determining whether or not to admit improperly obtained evidence.
Section 15 EA: For the purposes of section 14, the matters that the court shall take into account include—
(a) the probative value of the evidence;
(b) the importance of the evidence in the proceeding;
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;
(d)the gravity of the impropriety or contravention;
(e)whether the impropriety or contravention was deliberate or reckless;
(f)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(g)the difficulty, if any, of obtaining the evidence without impropriety or contravention of law.
Competence means the ability of a person to give evidence in Court while compellability is the authority of the court to compel a person to testify. Compellability is the obligation of a person to attend and give evidence when commanded by a court by subpoena or witness summons.
The general rule is that all persons are competent to testify EXCEPT they are:
Prevented from understanding the questions put to them, or
Prevented from giving rational answer by reason of extreme old age, tender years, disease whether of the body or mind or any other cause of the same kind: s175(1) EA
For the court to determine whether a person is competent or not. Competence is not a matte of age but intellectual capacity – stated by Supreme CT in Onyegbu v The State (1995).
Note that a person of unsound mind may testify during lucid intervals: s175(2) EA
A dumb person may testify by sign or in writing made in open court: s176 EA
All accused persons (Defence)
S. 180 of the Evidence Act
A convict-R. V. ONYUIKE
IBRAHIM V. THESTATE
Person of unsound mind or drunkards. They can give evidence during their lucid intervals.
Deaf and dumb witness-S. 176 of the Evidence Act
A co accused is a competent witness for the defence but not a competent witness for the prosecution EXCEPT when
Tried separately; and
Convicted and sentenced or
Discharged on a nolle prosequi or
Pleaded guilty and convicted(R. v. AKPAN)
A co-accused person may, while testifying in his own behalf incriminate his co-accused person.
Such incriminating evidence may be utilised by the court to convict either or both of them
Ajani v. R-
S. 198 of the Evidence Act.
Spouses of a valid marriage
S. 179 and 258 of the Evidence Act.
This is applicable to valid marriages under Islamic Law, customary Law and the Act.
A spouse is competent and compellable witness for the accused
Generally, spouses of a valid marriage are not competent witnesses for the prosecution where one spouse is standing trial UNLESS in the following circumstances.
i. Where the offence for which the spouse is standing trial relates to any of those mentioned in S. 182 (1)(a) EA (i.e. sex – related offences)
ii. In relation to an offence against the property of the Husband or wife, subject to the provisions of S. 36 Criminal Code S. 182 (1)(b) EA
iii. Where the husband or wife is charged with the offence of inflicting violence on his wife or husband-S. 182(1)(c) EA NB-In any other case, the husband or wife is only a competent and compellable witness upon the application of the spouse charged or upon obtaining the consent of the spouses- S. 182(2) EA; R. V. ADESHINA (WIFE TESTIFYING IN MURDER CASE WITHOUT CONSENT) NB Every woman who has contracted a valid marriage shall for the protection and security of her own separate property, have in her own name against all persons including her husband, the same remedies as if she were unmarried. - S. 144 ACJL
A child of tender age (under 14yrs old: s209 EA, s2 CPL, s371 ACJL, Solola v The State (2005)): .- Here the Court is to investigate if the child sufficiently understands the questions and to answer them rationally, and his ability to know the effect of telling the truth. -S. 175 of the Evidence Act. The judge will ask preliminary questions that are not related to the matter in controversy to the child. From the answers to those questions, the judge will decide whether the child is possessed of sufficient understanding. Issue that if the court does not record the details of the preliminary questions and answers, is the evidence is null? Supreme CT said ‘NO’ provided that preliminary questions were asked to ensure the child was of sufficient evidence. Note: defence must raise objection that preliminary test must be taken, if not he will not be heard on appeal to complain. Where CT does not conduct preliminary test, the evidence is inadmissible: Agenu v State (1992). Case law on sections s175(1) and 209(1) is needed to clarify if section 209(1) has changed the law as the language of s182(1) EA 2004 (which had both sworn and unsworn evidence of a child)
See the slide of Dagayya v The State (2006): where child gives sworn evidence, his evidence requires no corroboration. Where child gives unsworn evidence, his evidence must of necessity be corroborated
A child under 14 years of age must give unsworn evidence needing corroboration. - S. 209(3) of the Evidence Act. Evidence of child under 14yrs must be taken otherwise than under oath or affirmation
A child of 14 years and above can give sworn evidence which will need no corroboration but the Court will caution itself if it decides to convict on it.
Counsel as witness for client: counsel is competent but ought to withdraw as counsel if he is likely to be a witness: Elabanjo v Tijani (1986) 5 NWLR (Pt. 46) 952. Imagine the difficulties counsel may face if he has to continue with the case after his credibility is questioned under cross examination
Tainted witness: Tainted witness not an accomplice but may be a witness who has a purpose of his own to serve: Mbenu v State (1988)
E.g. witnesses with criminal connections who may want to rope in another person so they receive a lesser sentence and claimants to the property of deceased person: Ali v The State (2009)
Evidence of relations of accused or victim: Such witnesses are competent but their evidence should be scrutinised with caution
COMPELLABILITY OF WITNESSES
This means to put a witness under a legal obligation to give evidence.
The general rule is that all witnesses can be compelled to give evidence in Court.
Judges or judicial officers as to matters within their capacity as a judge. He may be examined as to other matters. –
S. 188 of the Evidence Act
Legal practitioners, Court interpreters or Clerks of Legal Practitioners in official capacity. - S. 192 and S. 193 of the Evidence Act. Except with EXPRESS CONSENT
Information in respect to the commission of offence received by prosecutors or the Police.
An accused person not a compellable witness for the defence-S.36(11) CFRN. As witness for the prosecution (Umole v IGP: held that accused can testify against co-accused when the former had pleaded guilty and convicted before being called by the prosecution: can be compellable at this stage)
Evidence as to the affairs of a State unpublished. -S. 190 of the Evidence Act.
Official communication by public officers
-S. 191 of the Evidence Act.
The President and Vice President of Nigeria; and the Governors and Deputy-Governors of the States. S. 308(1)(c) of the 1999 Constitution are competent but not compellable witnesses
TINUBU V. IMB SECURITIES
ISHOLA NOAH VS.BRITISH HIGH COMMISSIONER (except election matters)
Diplomatic agents and convoy. S. 2 of the Diplomatic Immunities and Privileges Act
Diplomats and members of diplomatic missions including foreign envoys. Consular officers and members of their families and staff (and members of the family of the officer staff) are immune from all legal process S. 1(1) Diplomatic Immunities and Privileges Act.
NB-Zabuski v. Israeli Aircraft Industries-It was held that the provisions of S. 1(1) DIPA, only make Diplomats un-compellable but they are competent witnesses if they desire to waive the immunity: S. 2, 4 and 15 DIPA.
What of Nigerian working in an embassy or a Nigerian working for the UN in Nigeria (see Ishola case)
This is an order of court issued to a person whose presence is required for purposes of testifying in a manner before the court. It is used in the magistrates’ courts. However, it is not expressly prohibited to be used in the High Court.
a. The party desirous to call a witness (who may be unwilling to come would apply to the Registrar of the court to issue summon upon payment of the requisite fees.
b. The witness summons is served on the witness personally unless where leave of court is granted to serve by substituted means – S. 187 CPL
c. Failure to obey the summons will be regarded as contempt of court -S. 191 (a)CPL
d. A person so served may refuse to attend unless his travel cost is paid except where the Prosecutor is a Law officer. S. 186 (2) CPL SUBPOENA
This is the commonest method by which the attendance of a witness is secured in trials before the High Court.
In Police v. Jane, it was held that a Magistrate has no power to issue a subpoena.
A subpoena is a writ in an action requiring the person to whom it is directed to be present at a specified place and time for a specific purpose under a penalty under the law-Morrison Ind. Plc v. Makinde.
TYPES OF SUBPOENA
a. Subpoena ad testificandum: This is for the purpose of compelling a witness to attend court and give evidence: Form 40 FCT
b. Subpoena duces tecum: This is used to compel a witness to come to court or before an Examiner or Referee to give evidence and also to bring with him/her certain document in his/her possession specified in the subpoena: Form 42 FCT
c. Habeas corpus ad testificandum: Form 41 FCT – writ directed at the controller of Prisons directing the person to produce that person to court at the named date or days to testify and give evidence
i. Application is made by the party who requires it to the Registrar upon payment of the requisite fees.
ii. It is also served on the witness personally.
iii. Failure to obey a subpoena would make the court to issue warrant for the arrest of the person whose attendance is so required unless the person has applied to have same set aside.
This is not a means of securing attendance of a witness in court at first instance. It is usually issued after a witness summons has been disobeyed-S. 188 CPL
However, where the court is satisfied upon oath that the person is likely to give material evidence but that he would not attend court unless he is compelled to do so; the court may use warrant at the first instance.-S. 189 CPL
In criminal trials, there is generally no required number of witnesses to call to prove a case.
Evidence of one witness which is credible would prove the most heinous crime: Section 200 EA 2011
All that is required is for the Prosecution to prove the case against the accused beyond reasonable doubt.
However, where the Prosecutor fails to call an eyewitness or material witness, the court may reasonable infer that if the witness had been called, his testimony would have been favourable to the accused person. OGBODU V. THE STATE A prosecutor must not call all eyewitnesses to testify-
ALLI & ANOR V. THE STATE;
ADAJE V. STATE.
Corroboration means confirmation of a piece of evidence by another independent evidence. As a general rule, corroboration is not required to prove the guilt. Person can be convicted based on the evidence of a single credible witness: s200 EA
In all the situations, where the law of Evidence requires corroboration, the Prosecution will require the testimony of at least two witnesses to secure a conviction- Corroboration may be required as a matter of law or as a matter of practice. The nature of the corroborative evidence will vary from one case to another
The circumstances are as follows:
The testimony of the following persons as witnesses require corroboration.
i. Testimony of an accomplice S. 198(1) EA. An accomplice is any person who pursuant to section 7 of the Criminal Code may be deemed to have taken part in committing the offence as the defendant or is an accessory after the fact to the offence, or a receiver of stolen goods (s198(2) EA): Mohammed v State. A co-accused is not an accomplice, a court must warn herself that it is unsafe to convict based upon the evidence of a co-accused
ii. The unsworn testimony of children S. 209(3) EA
iii. The testimony of a tainted witness
An accused person can only be convicted of any of the following offences upon his plea of guilty or on the evidence of at least two witnesses; one corroborating the testimony of another.
Such offences are:
i. Treason and Treasonable felony
S. 201(1) EA; R. v. Omisade
NB == However, S.
201 (2) EA provides that on a charge of treasonable felony, the court can convict on the testimony of one witness where the treason alleged is the killing of the President or an attempt to endanger his life or injure his person.
ii. Perjury or for counseling or procuring Evidence on charge of the commission of perjury: S. 202 EA
iii. Exceeding Speed Limit S. 203(1) EA: Exception - “Provided that the evidence of a duly authorised officer of the relevant authority who was at time of the commission of the offence operating any mechanical, electronic or other device for the recording of the speed of a moving vehicle, the record of such device being additionally tendered in evidence against, the defendant, shall not require further corroboration”
iv. Sedition S. 204 EA, S. 528 Criminal Code Act
Effect of corroboration
When corroboration is required as a matter of law, failure of corroborative evidence of a crucial witness may nullify a conviction and sentence.
Where corroboration is not required by law but a court did not warn herself as to the need for corroboration, the effect would depend upon the quality of testimony of the single witness
Sexual offences S. 179 (5) Old Evidence Act 2004
SS 218, 221, 223 and 224 CC.
This was completely omitted in the New Evidence Act meaning the requirement has been abolished under the E.A.
Computer generated evidence
Kubor v Dickson
Need for foundation as to the identity and operation of the computer at the relevant period
Certificate of compliance
Section 84 EA 2011
Section 84(2)(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d)that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
Section 84(3): Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in subsection (2) (a) of this section was regularly performed by computers, whether—
(a) by a combination of computers operating over that period; (b) by different computers operating in succession over that period;
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
Section 84(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate —
(a) identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer.
(i) dealing with any of the matters to which the conditions mentioned in subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for
the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section—
(a) information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
OATH AND AFFIRMATION
Oath taking or affirmation by a witness is generally mandatory.-S. 205 EA 2011; S. 229(1) CPCL, S. 194 CPL
CONSEQUENCES OF REFUSAL TO TESTIFY ON OATH
Under the CPL (south): refusal to testify on oath or affirmation is an offence punishable by 8 days imprisonment. Under the CPCL, Testifying under oath or affirmation is discretionary. A witness shall not be compelled to testify an oath, or asked the reason for refusal.
However, the court shall record the fact of refusal and any reason voluntarily given. S. 230 CPCL
Under the ACJL, refusal to testify under oath or affirmation, refusal to answer any questions, refusal to produce any document without sufficient reason; renders one liable to be committed to prison for a period up to 8 days.- S. 190 (1) ACJL
WHEN EVIDENCE NOT GIVEN ON OATH MAY BE RECEIVED
a. Where the witness is not a believer in any of the known religions or is a person whose religion forbids oath taking S. 208 EA
NB-where however an oath has been administered, the fact that the person to whom the oath is administered has no religious belief would not affect the validity of the oath: S. 207 EA.
b. EVIDENCE OF A CHILD: The law permits the reception of evidence/testimony of a child who does not understand the nature and implication of an oath provided he understand the duty of telling the truth in addition to understanding questions put to him and giving rational answers to such questions. S. 209 (1) EA;
S. 9 Oaths Act
DAGAYYA V. S NEW-CAUTION BEFORE TESTIFYING AN OATH
SECTION 206 Evidence Act 2011 introduced the provision calling for cautioning a witness before he gives oral evidence on oath.
The Court or the Registrar upon the court’s direction shall caution the witness, thus:
You …………. (full name) are hereby cautioned that if you tell a lie in your testimony in this proceeding or wilfully mislead this court you are liable to be prosecuted and if found guilty you will be seriously dealt with according to law.
ORDER IN WHICH WITNESSES ARE CALLED
S. 210 Evidence Act 2011 provides that this shall be regulated by the Law and practice for the time being relating criminal procedure or in absence of such by court’s discretion.
Since it is the duty of the counsel to conduct a case, the number of witnesses and the order in which to call them has remained at the discretion of counsel. But he should adopt a logical order.
Opening statements, opening speech or opening address is usually called for in criminal cases before the jury (NOT USED IN NIGERIA).
Opening address is made after the conclusion of arraignment
For prosecution: contains a short summary of the facts of the case: s240 CPL, s189(1) CPCL, s268 ACJL
For the defence would be a brief summary of the defence’s version of the facts
Parties normally conclude their opening address that they are ready to proceed with the case
Note that in practice the opening statements may consist of parties informing he court that they are ready to proceed with the hearing
Note Rule 4 High Court FCT practice Direction 2014 on pre-hearing protocol – matters to be included in the opening statements would be considered in the pre-hearing protocol
Rule 4 FHC Practice Direction 2013: certain duties on the prosecution and defence – to inform the court and opposite party, the number of witnesses to be called and the likely exhibits
CONTENTS OF THE OPENING ADDRESS (optional)
a. The allegations against the accused and the law contravened.
b. The nature of evidence available to prove this.
c. The witnesses intended to be called, whether and when they would be available;
d. Where possible the approximate time for prosecution to complete its case.
TIPS ON MAKING AN OPENING ADDRESS
i. Opening address is merely an outline of the case not full submissive.
ii. Use good, plain and simple English.
iii. Give a most rational account of the events.
iv. Develop a structure for the speech.
v. References should not be made to inadmissible evidence.
vi. Give out signposts of what the Judge should look out for in the trial.
vii. Personal opinions should not be reflected.
Opening address for the Prosecution: My Lord, the accused are charged with the offences of theft, robbery and criminal conspiracy contrary to Section 296 Penal Code, Section 286 Penal Code and Section 97(1) Penal Code respectively. The Prosecution will show that on the 13th day of December 2014, the accused conspired to dispossess the victim, Mrs Ene Agbo of N20,000 by forcefully taking the money from her, when she boarded a bike belonging to Burago from the bank to Law School. The Prosecution will present Mrs Ene Agbo as a witness and tender the bike used in the robbery as evidence. In addition, the bank teller and account balance of Mrs Agbo showing the withdrawal of N20,000 will be tendered as evidence for the Prosecution as well as the testimony of the bank clerk, Mr James Ado who served Miss Agbo on the day she withdrew the money.
Opening address for the Defence: My Lord, the defence will show that the accused could not have committed the offence as stated by the Prosecution. Firstly, the accused persons were nowhere near the scene of the alleged crime. There is no witness to corroborate the testimony of Mrs Ene Agbo and given the flawed nature of the identification parade producing only the accused persons to be identified, we cannot be sure that Mrs Agbo correctly identified the accused persons as the perpetrators of the crime. Moreover, the accused persons will raise the defence of alibi stating that they were with friends at the Jollywell Hotel in Wuse at the time of the alleged crime. The friends, Mr Clement Oni and Miss Chioma Ego will be called as witnesses to this fact as well as the bar man, Mr Monday Ewe. These people will state that the accused persons spent the entire afternoon from 12pm – 8pm at the hotel on the day of the alleged crime.
WEEK 15-TRIAL 3-EXAMINATION OF WITNESSES
No particular number of witnesses required to prove a case: Olabode v State. However, note the instances when corroboration is required e.g. evidence of a child under 14yrs. Also in picking witnesses, only pick material or vital witnesses that will prove the case for the prosecution or the defence.
PREPARATION OF WITNESSES FOR TRIAL
The first thing a Registrar does is to ask all witnesses for a case to go out of Court and of hearing.
NB-This announcement is made either on the application of either party or by the court suo motu.
S. 212 Evidence Act,
S. 242 ACJL, S. 285 CPL
Requirement for ordering witnesses out of court and hearing does not apply to parties themselves or their respective legal advisers even if they will be called as witnesses: s212 Evidence Act
RATIONALE-Such that witnesses may not tailor their own evidence totally, with what other witnesses called by their party have said to their hearing.
EFFECT OF FAILURE TO ORDER WITNESSES OUT OF COURT
Failure to order prospective witnesses out of court and out of hearing does not vitiate the proceedings – Proviso to s. 242 ACJL; UWAEZUOKE V. COP.
If a witness remains in the Court, his evidence will be admitted but less weight will be attached to it.
NWABUEZE V.COP; FALAJU V. AMOSU
The Court may also restrain communication between the witnesses in Court. S. 213 of the Evidence Act.
STAGES OF EXAMINATION OF WITNESSES
1. Examination in -chief
2. Cross –Examination
3. Re – Examination
A-EXAMINATION IN CHIEF
The examination in chief is the examination of a witness by the party who called him-SECTION 214(1) EVIDENCE ACT. Method of putting questions to witnesses with a view to obtaining material evidence from them. Conducted by the party calling the witness.
ROLE OF EXAMINATION IN CHIEF
1. The purpose of examination in chief is to obtain from the witness, first hand, all the facts that he can prove in support of the case of the party calling him.
2. It aids to elicit the admissible, relevant and material and favourable evidence in relation to the issues.
3. The evidence elicited from examination – in – chief fine tunes the parties’ theory of the case.
4. The court tends to see the true position of events from the witnesses’ evidence in chief.
5. It aids in the extraction of truths from the facts of the case.
It takes the form of responses to questions, which eventually provides a story line. Usually commenced by introductory questions before main questions. Counsel should guide witness to tell court only story that is relevant, in an orderly, sequential and easy to follow manner. Pre-trial interview prepare witnesses
QUESTIONS NOT TO BE ASKED IN EXAMINATION IN CHIEF
a. Leading questions shall not be asked in examination in chief: s221(1) & (2) E.A.
b. Question’s tending to give hearsay evidence
c. Questions eliciting evidence of opinion.
d. Questions eliciting oral evidence from the contents of a document.
e. Also irrelevant questions should not be asked.
TYPES OF QUESTIONS USED IN EXAMINATION IN CHIEF
a. Open questions: Here the witness tells the story
b. Closed questions: Limit the answers to be given by the witness.
c. Transitional Questions
NB ==For examination–in–chief, prepare your questions based on the theory of the case.
Use open ended questions e.g. where, why, when, what, who, how, describe, explain etc.
It is not allowed in re-examination and examination in chief-S. 221(2) EA 2011.
WHEN LEADING QUESTIONS WILL BE PERMITTED BY THE COURT
However, the court shall permit leading questions in the following instances.
a. Introductory matters or
b. Undisputed facts or
c. Matters which in the opinion of the court have already been sufficiently proved before the court. S. 221(3)
Note where an objection is not raised to a leading question and same is answered by the witness, the CT can act on it: Garba v R (1959) 4 FSC 162.
Also note that where introductory facts are disputed, then leading questions of these facts are not allowed. CROSS EXAMINATION
The examination of a witness by a party other than the party who called him shall be called cross examination Section 214 (2) Evidence Act 2011
It comes after the examination in Chief has been completed.
Not limited to acts elicited in examination in chief: s215(2) EA
Cross-examination is not mandatory. If the counsel on the opposing side has no real issues to prove by the questions, then he should refrain from asking them: Kpokpo v Uko
Where a witness in examination – in – chief is silent on a material point and did not say anything against the interest of the opponent cross examination would not be necessary- KPOKPO V. UKO
Where more than one defendant is charged at the same time each defendant shall be allowed to cross-examine a witness called by the prosecution before the witness is re-examined: s216 EA
A co-accused is allowed to cross-examine the witness brought by another accused person. This must be done before cross examination by the prosecution: s217 EA
A person, whether a party or not in a cause, may be summoned to produce a document without being summoned to give evidence, and if he causes such document to be produced in court the court may dispense with his personal attendance: s218 EA
A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness: s219 EA
EFFECT OF FAILURE TO CROSS EXAMINE-
Failure to cross examine a witness on a vital point he raised during examination – in – chief, may be regarded as an admission of such issue. OFORLETE v. STATE
PURPOSE OF CROSS EXAMINATION
1. The purpose of cross-examination is to contradict, destroy, discredit the evidence of a witness.
2. To weaken or qualify the case of the opponents.
3. It is used as a means of establishing the party’s case through the opponent’s witnesses
AWOPEJU v. STATE Cross examination must relate to relevant facts but which are not directly facts in issue:-S. 215(2) EA 2011 QUESTIONS WHICH MAY BE ASKED IN CROSS EXAMINATION
Leading questions may be asked in Cross – Examination-S. 221(4)
When a witness cross examined, he may be asked any questions which tend to :
a. test his accuracy, veracity or credibility; or
b. discover who he is and what is his position in life; or
c. shake his credit by injuring his character-S.223 EA 2011
In considering the questions of veracity and credibility of a witness, the court should consider the following:
The witness knowledge of facts to which he testifies
The witness’ disinterestedness
The witness’ integrity
Whether his evidence is contradictory or contradicted by surrounding evidence
Onuoha v State
Questions relating to credit but are not relevant or too remote to the proceedings may be disallowed by the court. The court is under an obligation to warn the witness that he is not obliged to answer: s224 EA
LIMITATIONS IN CROSS EXAMINATION
The right to cross-examine may be limited by the following circumstances.
i. Section 224(2)(b)such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the court as to the credibility of the witness on the matter to which he testifies; and section 224(2)(c)such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence.
ii. Where a question is indecent or scandalous the court may disallow it: S. 227
Section 226 EA: the judge is empowered to report a counsel who asks baseless or questions adjudged to be without reasonable cause to the Attorney General of the Federation or any other authority to which the legal practitioner is subject.
TECHNIQUES FOR CROSS EXAMINATION
a. Probing technique: pin down the witness to get a direct answer
TEN COMMANDEMENTS FOR CROSS EXAMINATION
1. Be brief, short, do not ask more than one question at a time.
2. Avoid open questions, rather use closed questions.
3. Review the questions.
4. Do not ask question to which you do not know the answer.
5. Listen to the answer given by the witness.
6. When you elicit the required answer, stop probing.
7. Do not be stereotyped, change your style.
8. Do not give him opportunity to repair his testimony.
9. Do not give him opportunity to explain himself.
10. Do not ask too many questions.
OTHER TIPS FOR CROSS EXAMINATION
a. Maintain eye contact with the witness always.
b. Put previous inconsistent statement made by him to him if you think there are material contradictions.
Facts to know about cross-examination
Have a goal in mind before deciding to cross examine – listen to the examination in chief of the witness
It is not compulsory to cross-examine
Do not base your decision to cross-examine on going on a fishing expedition i.e. with a view to finding something you can hold unto
Failure to cross-examine on adverse and material evidence could be fatal to your case
Tips on effective cross-examination
Make use of leading questions mostly
Avoid the use of open questions, rather make use of closed questions as well as direct questions (questions producing Yes or No answers should be used)
Aim at establishing facts
Know when to stop and don’t overemphasise a point that has been scored already
Avoid getting into arguments with the witness
Insist on an answer to a question asked
Do not interrupt the witness
Structure your question in a way that the witness cannot pretend not to understand
Maintain eye contact with the witness (make sure the witness cannot make eye contact with the lawyer who called him
Do not hesitate to expose inconsistencies in his testimony
Be gentle, polite, modest and kind to the witness
Avoid asking questions you do not know the answer
Be adroit, dynamic and flexible
Ask as few questions as possible. Too many questions may help repair damage already done
Locate a witness’s weak point and exploit it
Contradiction of a witness statement by previous evidence: s232 EA. The statement made earlier by the witness in writing may be brought to his attention for the purpose of contradicting him
Inconsistency rule and statement made by an accused person
Where a witness made a statement before trial and the statement is found to be inconsistent with his testimony, his testimony should be seen as unreliable and the previous statement should not be acted upon by the court. However, does not apply where the accused gives evidence
RE – EXAMINATION
This is the last stage of examination of a witness.
It takes place where necessary after cross examination. It is conducted by the