Section 83(2) E.A.means that the even though primary means of proof of a document is the original document, there are circumstances where secondary evidence of the document may be admissible in evidence. The primary method is to produce the original document itself.
Other Categories of Documents
Section 85 E.A. 2011 says that “the contents of documents can be proved by primary or secondary evidence”.
Section 86 E.A. 2011 says that the primary evidence is the document itself that is produced for the court. Section 86 E.A. 2011:
86.(1) Primary evidence means the document itself produced for the inspection of the court.
(2)Where a document has been executed in several parts, each part shall be primary evidence of the document.
(3)Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it.
(4) Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest; but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.
Secondary evidence is defined by section 87 E.A. 2011. This includes certified true copies. Section 87 E.A. 2011 says:
87. Secondary evidence includes—(a) certified copies given under the provisions hereafter contained in this Act;
(b) copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(c) copies made from or compared with the original;
(d) counterparts of documents as against the parties who did not execute them; and
(e) oral accounts of the contents of a document given by some person who has himself seen it.
Section 88 E.A. 2011 provides that documents shall be proved by primary evidence, except as mentioned in the Evidence Act 2011.
89. Secondary evidence may be given of the existence, condition or contents of a document when-
(a)the original is shown or appears to be in the possession or power— (i) of the person against whom the document is sought to be proved, or
(ii) of any person legally bound to produce it, and when after the notice mentioned in section 91 such person does not produce it;
(b) the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) the original has been destroyed or lost and in the latter case all possible search has been made for it;
(d) the original is of such a nature as not to be easily movable;
(e) the original is a public document within the meaning of section 102;
(f) the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence;
(g) the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection; or
(h) the document is an entry in a banker's book.
Section 90 E.A. 2011specifies the types of secondary evidence that may be admissible in the various exceptions set out in section 89 E.A. 2011. Section 90 E.A. 2011 says:
90. (1) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of section 89 is as follows—
(a) in paragraphs (a), (c) and (d), any secondary evidence of the contents of the document is admissible;
(b) in paragraph (b), the written admission is admissible;
(c) in paragraph (e) or (f), a certified copy of the document, but no other secondary evidence, is admissible;
(d) in paragraph (g), evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents; and
(e) in paragraph (h) the copies cannot be received as evidence unless it is first be proved that—
(i) the book in which the entries copied were made was at the time of making one of the ordinary books of the bank,
(ii) the entry was made in the usual and ordinary course of business, (iii) the book is in the control and custody of the bank, which proof may be given orally or by affidavit by an officer of the bank, and
(iv) the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit.
For our purposes, the lecturer focussed on secondary evidence of public documents, which is an exception set out in Section 89(e) E.A. 2011. Therefore the most relevant section of section 90 is section 90(c) E.A 2011.
Section 91: Secondary evidence of the contents of the documents referred to in section 89(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice to produce is prescribed by law then such notice as the court considers reasonable in the circumstances of the case.
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it—
(a) when the document to be proved is itself a notice; (b) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(d) when the adverse party or his agent has the original in court; or
(e) when the adverse party or his agent has admitted the loss of the document.
The terms, ‘Public Documents’ are defined in section 102 E.A. 2011:
Section 102. The following documents are public documents— (a) documents forming the official acts or records of the official acts of—
(i) the sovereign authority, (ii) official bodies and tribunals, or
(iii) public, officers, legislative, judicial and executive, whether of Nigeria or elsewhere: and
(b) public records kept in Nigeria of private documents.
Section 103: All documents other than public documents are private documents.The conditions for admissibility of public documents are contained inSections 104 – 105 E.A. 2011.
Section 104.-(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. (3)An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
Section 105. Copies of documents certified in accordance with section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
If a public document is properly certified as required by law, it is admissible without the need to call a witness. You simply tender to the court the public document
WEEK 16-TRIAL 4: PRESENTATION OF THE CASE FOR THE DEFENCE
After the last prosecution witness is excused by the court, prosecution will close his case. Court will consider whether a prima facie case has been made by the prosecution to necessitate the accused person to open his case. If it appears to the court that the case has not been made out sufficiently, then defendant cannot be asked to prove his innocence. This results in a discharge: s239(1) ACJL, 286 CPL, s191(3) CPCL. Discharge whether the accused is represented by counsel or not. If represented by counsel, it is expected that counsel will make the application but court can discharge suo motu.
Note that if making a no case submission, no requirement that it must be in writing or filed before it can be made. Counsel can orally make a no case submission at the close of prosecution’s case.
IN OPENING THE CASE FOR THE DEFENCE, THE ACCUSED PERSON HAS TWO BROAD OPTIONS;
He may make a No Case Submission.
He may choose to enter into his own defence.
A-NO CASE SUBMISSION/RULING
This can be made by the defence or the Court on its own volition at the close of the prosecution’s case where a prima facie case has not been established against the accused: DABOR & ANOR v. THE STATE
When it is made by the court, it is called a no case ruling.
It may be made in respect of one count of offence or the entire charge sheet. The court must make a ruling on each count of offence separately-AJANI & ORS v. R
PURPOSE OF A NO CASE SUBMISSION- To prevent the accused from entering his defence and prove his innocence and to save the Court’s time. EMEDO VS. THE STATE; S.36(5)
CONDITIONS FOR NO CASE SUBMISSION-
S. 239(1) of the ACJL, S. 286 of the CPL and S. 191 of the CPCL.
When the evidence adduced by the Prosecution has been so discredited during cross-examination – (refer to the specific portions of the evidence that are unreliable e.g. evidence of PW1 etc)
When the evidence is so manifestly unreliable that no reasonable Tribunal/Court can safely convict upon it-EMEDO V. STATE.
NOTE-These conditions stated above are culled from the Practice Note of PARKER L. J. (England) issued by the Queen’s Bench Division of the High Court of England-S.363/262/35CPL/ACJL/HCNR) and were approved and applied in IBEZIAKOR v. COMMISSIONER OF POLICE
NOTE-These conditions are not cumulative-Existence of ANY of the conditions is sufficient.
Court must rule separately on each of the count: Ajani & ors v R.
If upheld, it is for the court to uphold the no case submission. And prosecution wants court to overrule the no case submission. It must be detailed like any other judgment if court is upholding the no case submission. If overruling it, ruling should be brief and refrain from expressing an opinion on evidence adduced: State v Audu, Emedo v State. Court must not fetter its discretion: R v Ekanem. Inordinate length cannot fetter discretion: Odofin Bello v State. Length alone is insufficient to nullify a trial: Atano & Anor v AG Bendel. The proof here is not beyond reasonable doubt.
EFFECT OF A NO CASE SUBMISSION WHEN RIGHTLY UPHELD BY THE COURT
CPL STATES- it is a discharge on the merits and the accused will be acquitted.
NB- A Bar plea will avail him - IGP V. MARKE ;NWALI V. IGP, EMEDO V. STATE-S.286&301 CPL
ACJL(LAGOS)-A Discharge on a no case submission operates as an acquittal-S. 239(1) of the ACJL; EMEDO VS. THE STATE
CPCL STATES- This depends on the COURT-S.159 and 169 CPCL
-High Court- discharge on the merit and therefore an acquittal.
S. 191 (3) & (5) CPCL
Magistrate’s Court-a discharge but not on the merits: S159(3) & 169(3) CPCL.
A discharge in the magistrate’s court shall not be a bar to further proceedings against the accused on the same charge. A plea of autrefois acquit based on it will necessarily fail.
EFFECT OF NO CASE SUBMISSION IF WRONGLY UPHELD
The appellate court will
Quash the order of the trial Court acquitting the accused AND
Any subsequent evidence adduced before the court is proper and material to the case: CHUKA v THE STATE
Where such evidence implicates an accused person, he can be safely convicted on it.
The CONVICTION above will be valid irrespective of the accused taking further part in the proceedings-
CHUKA VS. THE STATE
OKORO VS. THE STATE.
CPCL: in magistrate court, if no case to answer is overruled, the accused person can apply to recall prosecution witnesses to cross-examine them before opening his defence.
EFFECT OF A NO CASE SUBMISSION WRONGLY OVERRULED
The accused may enter his defence OR rest his case on the Prosecution’s case.
Any conviction based on incriminating subsequent evidence will be quashed on appeal as it is a nullity
The fact that he took FURTHER PART in the proceedings OR WITHDREW after his no case submission is irrelevant- MUMUNI & ORS V. THE STATE; OKORO V. THE STATE; DABOH V THE STATE
NATURE OF A RULING OF NO CASE SUBMISSION WHEN IT IS RIGHTLY UPHELD
Where the court upholds the submission of no case to answer, its ruling is a decision on the matter.
The ruling must be detailed and contain the reason for the decision, just like any other judgment of a court.
NATURE OF A RULING OF A NO CASE SUBMISSION WHEN IT IS RIGHTLY OVERRULED
The ruling of a court is not a decision on the substantive case.
The ruling must be brief so as not to fetter the judge’s discretion-ODOFIN BELLO v. THE STATE
The court can give a lengthy ruling if it intends to acquit the accused
It is not the length of a ruling per se that determines that a judge has fettered his discretion.
Rather, it is the contents of the ruling that shows whether the judge has fettered his discretion. ATANO & ANOR v. ATTORNEY GENEAL (BENDEL)(15 page ruling)
Ruling must be confined to the issues raised by the Defence in the submission such as veracity or insufficiency of evidence-ABRU v. STATE; R. v. EKANEM
The court should refrain from expressing any opinion on the evidence already before it.-THE STATE v. AUDU.
OPENING CASE FOR THE DEFENCE
If prima facie case is established, defence will open his case for defence
S. 287 of the CPL,
S. 191 of the CPCL
S. 240 of the ACJL
THE 3 OPTIONS OPEN TO AN ACCUSED IN OPENING HIS DEFENCE ARE AS FOLLOWS:
Make his statement unsworn from the dock
he will not be sworn on oath to testify
he is not liable to be cross-examined
he is not seen or treated as a witness
ADVANTAGE-if accused is a doubtful witness he is spared the rigors of cross-examination
DISADVANTAGE- court will not attach much weight to his evidence
Give sworn evidence from the witness box
he will give sworn evidence in the witness box
he is liable to cross-examination but not compellable
much weight will be attached to his evidence
ADVANTAGE-this is advisable for a credible and stable accused person as his evidence can withstand cross examination
May remain silent - S. 36(11) & (5) of the 1999 Constitution as amended.
He will not ADDUCE any evidence whatsoever
He is deemed to have RESTED HIS CASE on the Prosecution’s case and the court can give a VALID conviction on that basis-AKPAN V. STATE
So there will be written addresses and then judgment
Note- the prosecution cannot comment on the silence of the accused-S.236(1)(C) CPCL
NOTE if the accused chooses any of the options above in opening his defence, he can call witnesses.
S. 287 (1) (a) CPL,
S. 36 (6)(d) CFRN (as amended) If represented by counsel, the court shall assumes counsel knows the implication of these options and call upon counsel to proceed with the defence: s287(1)(b) CPL, AKPAN V STATE DUTY OF THE COURT AFTER ACCUSED SELECTS ANY OF THE OPTIONS ABOVE-
IF HE IS NOT REPRESENTED BY COUNSEL;
The Court must read out and explain the implications of each of the 3 options available to him
Court must record that it is complied with this requirement: JOSIAH V STATE
Failure of the Court to do so (e.g. court explained but didn’t record that it explained) will not vitiate the trial except it occasioned a miscarriage of justice resulting in the conviction, depending on the circumstances of the case-JOSIAH VS. THE STATE;
S.288 CPL; S.240 ACJL
SAKA V. STATE (No miscarriage of justice); KAJOLA V.COP; EMA V STATE IF HE IS REPRESENTED BY A COUNSEL, the duty is dispensed with as the Lawyer is deemed to have informed him accordingly.-
EDET VS. THE STATE and
ADIO VS THE STATE.
S.240(1)(A)(III)ACJL. NB: even if a no case submission is overruled (only requires a prima facie case), the accused can still rest case on the case of the prosecution because requires proof beyond reasonable doubt to convict
If accused chooses to say nothing in his defence, the prosecution and court may comment on his silence, but prosecution must not argue that it amounts to an admission of guilt: s236(1)(c) CPCL; s36(11) CFRN. The court may make any necessary inferences it thinks just.
Note s181 EA 2011, the court, prosecution and any other party can comment but not suggest guilt due to give evidence. The court can draw inferences – Garba v State; s236(1) CPCL. RESTING THE ACCUSED’S CASE ON THE CASE OF THE PROSECUTION
This implies that he is calling the Court to convict or acquit him based on the evidence led by the Prosecution.
Where accused does not call any witnesses or adduce any evidence, then said to have rested its case on the prosecution. Court can come to a valid decision solely on that basis.
Accused is assumed to have accepted the evidence as truly and exactly stated by the prosecution: Akpan v State
But important to note Supreme Court caution in Babalola v State that this is reckless for a defence counsel where there are compelling evidence against the accused
The counsel to the accused person would inform the court and then proceed to address the court.
This address is wider and is expected to address all issues concerning the case as a whole
After such address by the Defence Counsel, the Prosecution if represented by a Law officer is entitled to reply.
Where the case of the Prosecution calls for some explanation from the accused and the accused chooses to rest his case on that of the Prosecution, the trial judge is entitled to draw necessary inference from the tale told by the Prosecution.-
NWEDE v. STATE;
BABALOLA v. STATE NB: accused person can tender documents through the prosecution witness in course of cross-examination but in such a case, cannot rest case on that of the prosecution because he would have entered a defence
WHEN CAN AN ACCUSED BE SAID TO REST HIS CASE ON THE PROSECUTION
This occurs when;
He refused to call any witness
nor give evidence in his trial.
WHEN IT IS ADVISABLE FOR AN ACCUSED TO REST CASE ON THE PROSECUTION’S CASE
A no case submission was wrongly overruled
The prosecution’s case is manifestly weak that no Court/Tribunal can possibly convict on it. EMEDO VS. THE STATE.
WHEN IT IS NOT ADVISABLE FOR AN ACCUSED TO REST CASE ON THE PROSECUTION’S CASE
When there is overwhelming evidence against the accused. -BABALOLA V. THE STATE.
DUTY OF THE COURT BEFORE CONSIDERATION OF AN ACCUSED’S REQUEST TO REST CASE The court should consider the whole case of the Prosecution including credibility of witnesses and weight to attach to evidence before delivering judgment after the accused has rested his case on that of the Prosecution.-
Where a no case submission is overruled, the accused is given leave to enter his defence. BUT where the accused rests his case on that of the Prosecution; the accused has no further opportunity of calling witnesses or to enter upon his defence.
Resting case is used where defence alleges that there is INSUFFICIENT EVIDENCE to warrant a conviction but no case submission is used where there is NO PRIMA FACIE EVIDENCE linking the accused person to the crime.
COMMENCEMENT OF THE CASE FOR THE DEFENCE
SECTIONS 241 CPL, 192 CPCL, 269 ACJL
This arises at the end of the case for the Prosecution i.e. after the re-examination of all the Prosecution witnesses, the Prosecution may close its case in this manner thus,
“My Lord, the Prosecution wishes to close its case” or My Lord, that is the case the Prosecution”.
The accused person may commence with an opening address by giving a summation of the case for the defence, its witnesses and evidence to be adduced.
In practice, the defence usually dispenses with an opening address and simply proceeds by calling his first witness.