Tips in Criminal Trial/Proceedings in Nigeria: FCT/Abuja as a Case Study

Being a paper delivered by Hameed Ajibola Jimoh, Esq., Sole Practitioner & Principal Counsel, THE VICEGERENT LEGAL CONSULT, Bwari, Abuja. 08168292549.

Criminal laws relate to crimes and offences and omissions thereto.

Criminal trial can be by summary trial or by full trial by proof of evidence.

Criminal trial starts from arrest (Note: Arrest can be unlawful where there is no justification for such or on a mere unsubstantiated suspicion. Such an arrest can be a violation of fundamental rights of the victim to which the victim is entitled to compensation and public apology). Section: 36(8), (9), (10) and (12) of the Constitution of the Federal Republic of Nigeria (as amended). See: FIRST BANK OF NIGERIA PLC. & ORS. v. ATTORNEY-GENERAL OF THE FEDERATION & ORS. (2013) LPELR-20152(CA) thus
“It is an established principle of law that where there is evidence of arrest and detention of an applicant which were done or investigated by the respondent in an action for the enforcement of fundamental rights, it is for the respondent to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention is lawful. See EJEFOR v. OKEKE (2007) 7 NWLR [pt. 665] 373; ONAGORUWA v. IGP (1991) 5 NWLR [pt.193] 593.” Per AKOMOLAFE-WILSON, J.C.A (P. 59, paras. C-F).’. ANOLIEFO v. ANOLIEFO & ORS (2019) LPELR-47247(CA). also, see: OGUNWUMIJU, J.C.A. (Pp. 21-32, Paras. F-B) in the case of IGP & ANOR v. AGBINONE & ORS (2019) LPELR-46431(CA) as follows: ‘… Lord Wright in McArdle v. Egan [1933] All E.R. Rep. 611 at 613 showed that the responsibility is ministerial and not judicial when he said:- “It has to be remembered that police officers, in determining whether or not to arrest, are not finally to decide the guilt or innocence of the person arrested. Their functions are not judicial, but ministerial.”

The Police does not have the power of arrest and detention in respect of a civil claim. See the case of: ASSENE (NIG) LTD v. MIVERO PHARMA LTD & ANOR (2021) LPELR-56247(CA). thus “It is no doubt, that the call of the Respondents on the police “to intervene and look into the accounts” in a Purely Commercial Transactions was an invitation-too-far, it was made malafide and is ultra vires the duty of the Police as set down in Sections 4 and 23 of the Police Act as well as Section 214(1) and 2(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It has been repeatedly stated that the Police is not a Debt Recovery Agency and has no business in dabbling into contractual disputes between Parties arising from purely civil transactions. See: MCLAREN V JENNINGS (2003) FWLR (PT 154) 528; ACCESS BANK V KINAR WEST AFRICA LTD & ORS (2019) LPELR-47226(CA). I take notice of the Provision of Section 32 (2) of the Nigeria Police (Establishment) Act, 2020 which frowns and prohibit Police Officers’ interference in civil disputes, unless on the Order of a competent Court.

This Section states clearly that the Police are not to arrest any individual for any civil wrong or for breach of contract. No such Order of Court is on Record before the Court, which would have justified the action of the police on the instigation of the Respondents.” Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, JCA (Pp 46 – 47 Paras A – A). also see: the case of ANUBALU v. STATE (2019) LPELR-48088(CA) thus “The duty of the Police as spelt out in Section 4 of the Police Act include prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. I have scrutinized the provisions of the Section 4 of the Police Act and I am unable to decipher any provision empowering the Police to enforce contract or meddle into purely civil transactions between parties. The interference of the Police in purely civil matters is an abuse of the statutory powers of the Nigerian Police. I am not oblivious to the fact that the Police receive countless petitions daily alleging one crime or the other, however the Police is not a robot incapable of methodically sieving through the Petitions to determine if there is criminal element or not in each of the Petition before acting on same. It does not augur well for the society if the Police upon the instigation of a complainant acts outside its statutory defined functions by interfering in simple civil transactions between citizens. Simply put, it is neither the duty nor the power of the Police to serve as agents of any person, be it an individual or a corporate citizen or even agents of Government at either the Federal or State or Local Government level, to enforce commercial disputes, under any guise or pretext of investigating a crime in a purely civil dispute without any element of criminality. See Section 8(2) of the Administration of Criminal Justice Act 2015, wherein it is provided thus: “A suspect shall not be arrested merely for a civil wrong or breach of contract. This prevalent attitude of involving the Police in a purely civil transaction under the guise of commission of a crime has received scathing deprecations by the Supreme Court in a multitude of cases. In the case of DIAMOND BANK PLC v. H.R.H. EZE (DR) PETER OPARA Per ABUBAKAR SADIQ UMAR, JCA (Pp 45 – 49 Paras C – C).

Criminal Trial entails detention ((Note: Detention can be unlawful where there is no justification for such or where such detention is beyond reasonable time as provided by Section 35(4) and (5) of the Constitution. Such a detention in this instance can be a violation of fundamental rights of the victim to which the victim is entitled to compensation and public apology). Section: 35 (6) of the Constitution of the Federal Republic of Nigeria (as amended). If the offence is bailable, apply for administrative bail only within the reasonable time allowed by law i.e. 24 of 48 hours as the case might be. Where the detention is above the reasonable time, administrative bail is no more lawful and or relevant, because there is now breach of his fundamental right to fundamental right to personal liberty per day which entitles him to compensation and public apology. IGP & ANOR v. AGBINONE & ORS (2019) LPELR-46431(CA) ‘… it is important to add that detention no matter how short can still qualify as a breach of fundamental right, as long as such detention is adjudged unlawful. See Gusau v. Umezurike (2012) LPELR -8000; Okonkwo v. Ogbogu (1996) 5 NWLR Pt. 499 Pg. 420; Isenalumbe v. Joyce Amadin (2001) 1 CHR 458;’. Per OGUNWUMIJU, J.C.A. (Pp. 21-32, Paras. F-B).’.

ADMINISTRATIVE BAIL IS UNKNOWN TO CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA IN KEEPING A SUSPECT BEYOND 48 HOURS ON GROUNDS OF FAILURE TO FULFILL ADMINISTRATIVE BAIL CONDITIONS. THEREFORE, SUCH DETENTION IS UNCONSTITUTIONAL AND ILLEGAL. The following judgment is applicable to all security agencies who uses stringent bail conditions to keep suspect in custody at their pleasure. In the case of EFCC v Emem Uboh (2022) LPELR – 57968 (CA):

“The Court stated that by detaining the respondent for eight days, EFCC contravened the provisions of SECTION 35(4)(A) OF THE CONSTITUTION OF NIGERIA 1999 (AS AMENDED), which provides thus “any person arrested and/or detained upon a reasonable suspicion of having committed a crime shall be brought before a Court of law within a reasonable time”. The Court stated that the SUB-SECTION (5)(A) OF SECTION 35 explained in clear terms what the Constitution means by “reasonable time”, to be 24 or 48 hours as the case may be.

Note: always apply wisdom whenever you visit the detention facilities of the security and law enforcement agencies of government.

A suspect is entitled to all evidence to be used against him in the criminal trial and that is a constitutional right. See section: 36(6)(a) and (b) of the Constitution.

The main objection to a criminal trial can be based on where an alleged error is fatal or leads to miscarriage of justice. For instance, See: Lawrence Oguno & Anor. V The State (2013) LPELR-20623 (SC) where the Court held ‘The alleged irregularity complained of was not objected to immediately or timeously at the trial court, and being of the view that no miscarriage of justice was occasioned thereby. I therefore find not justification for allowing the appellants to raise it on appeal. See: Durwode v The State (2000) 15 NWLR (pt. 691) 467 at 488. Nasco MGT Service Limited v A. M. Amaku Transport Ltd supra’.

Note the following in criminal charge:
The Charge;
The Extra-Judicial Statement of the accused person/defendant;
The Names of Witnesses and their statement of facts of their proposed testimonies;
The list of exhibits to be tendered in the trial (both real and documentary);

The above documentary evidence might not be important where the accused person/defendant has pleaded guilty to the charge/charges or in relation to one or more of the charges. This is because an accused person can be convicted by the court solely on his confession/confessional statement. DANJUMA v. STATE CITATION: (2019) LPELR-47037(SC). ‘Whether a court can convict solely on the confessional statement of an accused person “The evidence adduced by the prosecution in proving its case at trial was in several folds. There is the side of confessional evidence of the Appellant which is neither denied nor challenged as contained in Exhibit 4 and 4A. This alone could ground conviction. By virtue of the provisions of Sections 28 of the Evidence Act, Confessional Statement is tenable and admissible. The section describes a confessional statement thus: “A confession is an admission made at any time by a person, charged with a crime tending to show or suggest the inference that he committed the crime.” Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice. See for example PATRICK IKEMSON & 2 ORS VS THE STATE (1989) 3 NWLR (Pt.110) 455 at 476 Para D; JOSEPH IDOWU VS THE STATE (2000) 7 SC 50 AT 62; (2000) 12 NWLR (Pt.680), at 48, NKWUDA EDAMINE VS THE STATE (1996) 3 NWLR (Pt.438) 530 at 537 Para D-E; SAMUEL THEOPHILUS VS THE STATE (1996) 1 NWLR (Pt.423) Page 139 at 155 Para AB; and AWOPEJU VS THE STATE (2002) 3 MJSC 141 at 151. See also PETER ILIYA AZABADA VS THE STATE (2014) All FWLR (Pt.751) 1620, Para B where this Court, per the Learned Onnoghen, JSC (as he then was) declared that: “The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved…Confession in criminal procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof.” Per BAGE, J.S.C. (Pp. 18-20, Paras. E-D).

Where the Accused person/Defendant pleads not guilty to a charge by virtue of Section 36 (5) and Section 138 (1) of the Evidence Act, it is the prosecution that has the burden of proof of the said count. See: the case of SAMAILA VS THE STATE (2016) All FWLR (Pt.818) 845 at 857, Para CD; THE STATE VS GWANGWAN (2015) All FWLR (Pt.8010) 1470 at 1491, Paras E-F.

It is settled law that the guilt of an accused person may be proved by the Prosecution/Complainant within the following three (3) options as held by the Supreme Court of Nigeria in the case of DANJUMA v. STATE (2019) LPELR-47037(SC) Per BAGE, J.S.C. (Pp. 17-18, Paras. E-D) They are as follows:
“(i) a confessional statement of the accused;
(ii) evidence of an eye witness; or
(iii) Circumstantial evidence.” See IGRI VS THE STATE (2012) 16 NWLR (Pt.1327) 522; OGUNO VS THE STATE (2013) 15 NWLR (Pt.1377) at 1; IBRAHIM VS THE STATE (2014) 3 NWLR (Pt.1394) 305; OGEDENGBE VS THE STATE (2014) 12 NWLR (Pt.1421) 338 and UMAR VS THE STATE (2014) 13 NWLR (Pt.1425) at 497.

Burden of proof does not shift to the accused person/defendant where the Prosecution has failed to proof its case beyond reasonable doubt (though not beyond all shadows of doubts). See the cases of: ADEREMI ADEROUNMU VS FEDERAL REPUBLIC OF NIGERIA LER (i.e. Legalpedia Electronic Report) [2019] CA/L/782C/2018 where the Court of Appeal of Nigeria re-echoed the trite position of law as follows
‘The position of the law is trite. It is that in criminal cases, the burden is entirely on the prosecution to prove the guilt of the Defendant. This burden does not shift if the Respondent must secure conviction. This is because, there is the presumption of innocence in favour of the Defendant as he has no obligation in law to prove his innocence. The duty is squarely on the shoulder of the Respondent to prove all the ingredients of the offence to secure conviction. This burden does not shift at all. In Ankpegher vs. State (2018) LPELR-43906 (SC), the apex court per Kekere-Ekun, JSC at pages 24-25 held:
“There is no doubt that in criminal proceedings the onus of proof lies on the prosecution throughout the trial and does not shift. In other words, there is no burden on the accused person to prove his innocence. It is also trite that the standard of proof in criminal proceedings is proof beyond reasonable doubt but not proof beyond the shadow of a doubt. See: Section 135 of the Evidence Act, 2011; Ikpo vs. The State (2016) 2-3 SC (Pt. III) 88; Oseni vs. The State (2012) 5 NWLR (Pt.1293) 351 @ 388 F-G; Woolmington vs. D.P.P (1935) AC 462.”. The onus of proving the guilt of any person accused of the commission of a crime lies on the prosecution and that the burden never shifts but must be discharged by credible evidence to ensure that all necessary and vital ingredients of the charge or charges are satisfactorily proved. See the case of THE STATE VS JAMES GWANGWAN (2015) 13 NWLR (Pt.1477) 600, at 621, Paras B-E, Per OKORO JSC. See also YONGO VS COMMISSIONER OF POLICE (1992) LPELR — 3528 (SC); (1992) SCNJ 113; (1992) 8 NWLR (Pt.257) 36; OGUNDIYAN VS THE STATE (1991) LPELR- 2333 (SC); (1991) 3 NWLR (Pt.181) 519, ALONGE VS IGP (1959) 4 FSC 203; IBRAHIM VS THE STATE (2015) 11 NWLR (Pt.1469) 164 at 192, Paras A-B.

The Prosecution has a duty to prove the particulars of the offence spelt out in the charge, citing the case of CAPT. O. ABIDOYE VS FEDERAL REPUBLIC OF NIGERIA (2014) All FWLR (Pt.722) 1624 at 1642-1643, Para G-D.

In criminal trial, the following are important:

Review the criminal allegations and evidence as to whether there is need for ‘plea bargain’ for the accused person; For plea bargaining, see: Section 270 of ACJA. By section 294 of ACJA, “Plea bargain” means the process in criminal proceedings whereby the defendant and the prosecution work out a mutually acceptable disposition of the case; including the plea of the defendant to a lesser offence than that charged in the complaint or information and in conformity with other conditions imposed by the prosecution, return for a lighter sentence than that for the higher charge subject to the Court’s approval’.

Review the charge filed against the suspect or accused person to see whether the charge exists under the law; See: Section: 36(8), (9) (10) and (12) of the Constitution.

Note: No statute is superior to the Constitution of Nigeria. The Supreme Court of Nigeria has held in A.C.B. V Losada (Nig.) Ltd. (1995) 7 NWLR (pt.405) 26, thus: ‘It has never been the case in our laws that the provisions of any ordinary statute would render nugatory the relevant provisions of the constitution. Therefore, if any law of the State including a subsidiary legislation… is inconsistent with the provision of the constitution, the provision of the constitution prevails and that State law is to the extent of inconsistency void’. Also see: Achu v C.S.C. Cross Rivers State (2009) 3 NWLR (pt. 1129) 475. Further see: the case of INEC v Musa (2003) 3 NWLR (pt. 806) 72 SC, page 157, at paras. D-G, (Ayoola, J.S.C). Also, no Rules of Court or Practice Direction is superior to a statute. See the case of: HAMEED AJIBOLA JIMOH ESQ. V AGF & ANOTHER (UNREPORTED) CA/A/643/2017, DELIVERED ON 12TH DAY OF AUGUST, 2022, BROADBANK OF NIGERIA V OLAYIWOLA & SONS (2005) 1 SCM 65, AFRIBANK NIG. PLC. V MR CHIMA AKWARA 2006 1 SCN.

Review the charge to find out whether the accused person is identified with the criminal allegation. The identity of the accused becomes an issue at the trial, where: (a) The victim did not know the accused person prior to the time of the alleged crime and his acquaintance with him (accused) was during the commission of the offence. (b) The victim or witness was confronted by offender, for a very short time. (c) Due to time and circumstances of the encounter, the victim might not have had full opportunity to observe the features of the accused. He said that in such situations, as stated above, it is desirable that an identification parade be conducted so as to clear doubt about the evidence of identity. He relied on the case of Alebiosu Vs State (2016) LPLER – 41359 (CA); Nnadi Vs State (2016) LPELR – 41032 (CA).

Identification parade is not necessary in all cases, but would be needed relying on Auta Vs The State (2018) LPELR – 44490 CA and R Vs Turnbull & Ors (1776) 3 AER 549; Ikemson Vs State (1989) 6 SC (Pt.5) 1, to the effect that “Identification is very essential and useful, wherever there is doubt as to the ability of the victim to recognize the suspect who participated in carrying out the crime.”

There is no vicarious liability in criminal charge/offence.

Review the statement of the accused person/defendant to find out whether it was made voluntarily or not made at all by the accused person/defendant. Where the accused person alleges that he did not make the statement at all, the court can still admit same in evidence and know what weight to attach to it. But where the accused person/defendant alleges oppression or involuntariness, then, a trial-within-trial would be conducted by the court (only to clear the allegation of involuntariness) and this trial-within-trial is conducted upon each of the extra-judicial statements sought to be tendered (in a situation where the suspect made more than one of such statements) and not just once or as a whole. Each of the evidence/statements begets its own trial-within-trial before the court admits same in evidence.

Note: Evidence adduced during trial within trial cannot be used in the main trial. See: AYOADE V. STATE (2020) 9 NWLR (PT 1730) 577 SC @ 603 PARAS F – G, Per Augie, JSC., as follows “So PW1 was cross-examined by appellant’s counsel at the trial-within-trial, but the law says that a trial within trial is a separate and distinct proceedings from the main trial, therefore, evidence adduced therein “cannot be translated, injected or imported into the main trial”. See Ifaramoye v. State (2017) LPELR – SC, (2017) 8 NWLR (pt 1568) 457. Thus, whatever PW1 said at the trial within trial in evidence in chief or cross examination, stays there and cannot be used, in anyway or form, in the main trial.”

Note: Where the Trial Court delivers a Ruling in the trial-within-trial and you are not comfortable with the Ruling, make sure that you appeal against the Ruling (if you intend to oppose the admissibility of such exhibit), else, you cannot challenge such evidence on appeal after the conviction and sentence of the accused person by the trial court. So, the accused person/Defendant should immediately file an interlocutory appeal if he intends to challenge such Ruling. See: Section 168(1) EA. See: Asimi v State (2016) 12 NWLR (pt. 1527) 414, Rhodes Vivour, JSC at page 431, paras. E-G thus ‘There is no appeal from the trial-within-trial in which the confessional statement of the appellant was admitted as exhibit 4. In the absence of an appeal, the ruling on the trial-within-trial is inviolate until set aside and in this case, that ruling would never be set aside since there is no appeal. In the circumstances, the ruling on the trial-within-trial is correct. The confessional statement of the appellant was properly and correctly admitted in evidence as exhibit 4’. Also see: Yusuf v State (2019) 10 NWLR (pt. 1680) 269. Also see: Fundamentals of Confessional Statement in Criminal Trials, by Obioma Ezenwobodo Lawcraft Publishers Ltd., Utako, Abuja, published in 2021, at pages 197-200.

Appeal does not amount to a stay of the criminal proceedings. So, an application for stay of proceedings in the trial shall not entertained. See: section 306 of the ACJA.

Review the criminal trial entirely to discover any defence as to: alibi, accident, provocation, unsoundness, etc. Note that ‘alibi’ must have been stated in the extra-judicial statement by the accused person and with full details of where he was and other details to enable the police to investigate same and it is only in this case that the accused person can benefit from his ‘defence of alibi’. See: UMOR v. STATE (2018) LPELR-44934(CA) “The Appellant contended that he timorously raised a defence of alibi and that once that is done, the burden is on the prosecution to investigate and rebut the defence. This case was investigated and Exhibits A & C being statements obtained in evidence. However, there is no where the Appellant raised a defence of Alibi in either Exhibit A or C. It is a settled principle of law as handed down by the Supreme Court, that alibi as a defence should be raised at the earliest opportunity and that opportunity is in investigation room.

This will enable the police to investigate the alibi. The police cannot investigate an alibi raised at the trial. It is too late, it is an afterthought. See Ndidi v State (2007) ALL FWLR (pt 381) 1617 at 1647 Paras E-F; Ebenehi v State (2009) ALL FWLR (pt 486) 1625 at 1833 Paras C-E. An Alibi defence is a defence which is aimed at persuading the Court that the accused person could not possibly be at the scene of the crime as he was somewhere else. Most probably there were people who could testify that the time the alleged crime and the date of the crime too, he was not at the scene of crime in raising the defence of Alibi, the accused must at the earliest opportunity furnish the police with full details of the alibi to enable the police to check the details. Failure to do same weakens the defence. See Sowemimo v. State (2004) 11 NWLR (PT. 885) 575, Nsofor v. State (2007) 10 NWLR (PT. 775) 274. The Appellant in this case did not furnish any details to substantiate his defence of alibi. Consequently, the defence of alibi does not avail him.”.

Note: On Confessional Statement generally, see: Fundamentals of Confessional Statement in Criminal Trials, by Obioma Ezenwobodo Lawcraft Publishers Ltd., Utako, Abuja, published in 2021.

Notice of Preliminary Objection can be made on:
Lack of jurisdiction either based on territorial jurisdiction or inappropriate court;
Non-existence of the offence charged.

Where the trial court sustains such NPO, the accused is discharged (but not acquitted) so, he can be re-arrested based on same offence in the court’s premises (but not in the open court). So, consider raising your objection in your NO CASE SUBMISSION, as any discharge of an accused person in a No case submission is a dismissal. See: Section 302 and 303 of ACJA on No Case Submission

Always take note of details in the Examination-In-Chief of the Prosecution witnesses

GUIDELINES ON EXAMINATION-IN-CHIEF OF WITNESS IN A TRIAL
Counsel: Can you please tell this Court your name?
Witness: My name is …………………………………
Counsel: Can you please tell this Court where you live?
Witness: I live at …………………………………………
Can you also tell this Honourable Court what you do for a living?
Witness: I work at or I am a trader, etc. (as appropriate).
Counsel: Do you recall that you appeared in this court to depose or sign your witness statement on oath where you explained all the facts that you know in this suit?
Witness: Yes.
If you see the witness statement on oath will you be able to identify or recognize it?
Witness: Yes.
Counsel: How will you identify or recognize it?
Witness: I will recognize it if I see it by my name and signature I signed on it.
Counsel: What do you want to do with it?
Witness: I wish to adopt it as my oral evidence in the Prosecutor’s or Plaintiff’s or Defendant’s suit (or in support of the Prosecutor’s or Plaintiff’s or Defendant’s suit). Note: the words in the bracket are for where other witnesses are called to stand for the plaintiff or defendant or prosecutor.
Counsel: My Lord, the Plaintiff’s/Prosecutor’s Defendant’s witness 1 etc. has adopted his witness statement on oath as his oral evidence in the Plaintiff or Defendant’s Prosecutor’s suit (or in support of the Plaintiff’s or Defendant’s or Prosecutor’s suit).
Counsel: In your witness statement on oath, you made reference to some exhibits.
Witness: Yes.
Counsel: Where are the exhibits?
Witness: They are with my lawyer.
Counsel: Will you be able to identify or recognize them if you see them?
Witness: Yes. (Counsel should apply to court to show him all the exhibits).
Counsel: Are they the exhibits?
Witness: Yes.
Counsel: My Lord, the witness has identified the exhibits and we seek to tender both the witness statement on Oath and the exhibits in evidence in this suit. We are very grateful, My Lord.
Note: witness should remain in the witness box-sitting or standing.
Note: After the Court’s ruling on the Oath and the exhibits, ask witness: Witness, what do you want the court to do for you or where applicable, for the Plaintiff or Defendant or Prosecution? Witness: I pray the Court with respect to grant my claims or where applicable, to grant the Plaintiff’s claims.
Counsel: That is all for the witness My Lord.
NOTE: The Next thing is for the Defendant’s Cross-Examination or Prosecution’s Cross-Examination, then Re-Examination.

MODES OF TENDERING EVIDENCE DURING TRIAL
Tendering of documents in examination of witnesses can be done through any of the following ways:
a.Undisputed documents can be tendered from the Bar after an agreement by the Counsel in the matter.
MANNIR ABDULLAHI V. FEDERAL REPUBLIC OF NIGERIA SC.288/2012
b. Disputed documents are to be tendered through the witnesses in evidence-in chief for the party calling him or in cross-examination by the adverse party.
OGBUNYINYA V. OKUDO Suit No: SC.13/1979.

PROCEDURE FOR TENDERING DOCUMENT THROUGH A WITNESS

1. Witness is sworn on OATH
2. Introductory questions are put to the witness
3. Proceed to the the relevant paragraph in the witness deposition where the witness mentioned a particular document and what the witness is relying the document as, in the case.
   a. Whether the witness can recognise the document if he sees it?
   b. How can he identify the document?
4. Counsel to seek the leave of court to show the document to the witness for identification; through the Registrar. After identifying, the witness will confirm that he made the statement
5. Witness to express readiness to tender the document as evidence in the case.
6. The adverse party could object as to admissibility on points of law relying on the Evidence Act and some decided cases in support.
7. Counsel will seek the leave of court to tender the document in evidence and for the court to mark it as Exhibit.
8. Evidence is admitted and marked as Exhibit.
   It is important to note that where a counsel fails to object to admissibility of a document where it matters can be fatal to a case. It’s not in all cases that the court can suo motu reject a document that was not objected to on the grounds that it does not conform to the rules of evidence. Sometimes Counsel can mislead the court and make the court to admit an inadmissible document. However, this can be excluded on appeal.
   In FOLORUNSHO V. FRN (2017) LPELR-41972(CA) Supreme Court sited the cases of MOTANYA v. ELINWA & ORS (1994) LPELR-1919 (SC); OTOKI v ALAKIJA (2012) LPELR-7994 (CA) and ABUBAKAR v CHUKS (2007) LPELR- 52 (SC) said “The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial judge. It is not automatic. Admissibility of a document is one thing and the weight the Court will attach to it is another. The weight the Court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence.”Per NIMPAR, J.C.A. (P. 18, Paras. A-E) –
   ALHAJI SAFIANU AMINU & 2 ORS VS ISIAKA HASSAN & 2 ORS. Supreme Court held that “Neither a trial court nor the parties to an action has any power to admit without objection, a document that is in no way and under no circumstances admissible in law. If such a document is wrongfully received in evidence before the trial court, an appellate court has an inherent jurisdiction to exclude it even where no objection was raised to its going in at the Lower court. PER PETER-ODILI, JSC”.

GROUNDS FOR OBJECTION OF ADMISSIBILITY OF A DOCUMENT.
As a lawyer, before you let that document be admitted in evidence which could be detrimental to your case, you might have to consider raising an objection based on any of the following grounds.

1. That the document sought to be tendered being a secondary evidence, no foundation has been laid as to the whereabouts of the original. Section. 83, Section. 88 and 89. EA.
   The general rule is that documents must be proved by primary evidence . Section 88 EA.
   When Secondary evidence is sought to be tendered, a foundation must be laid in accordance with s. 89 either in the witnesses deposition or orally in court. See EZENWA ONWUZURUIKE v. DAMIAN EDOZIEM & ORS (2016) LPELR-26056(SC).
2. That the document sought to be tendered was not pleaded nor frontloaded. That there is no nexus between the depositions of the witness and document sought to be tendered. See OLANIYAN V OYEWOLE (2008) CA.
   For this objection to stand it must be established that there is no fact in the deposition pointing to the transaction or existence of that document. This objection should be raised with caution.
   ALHAJI SAFIANU AMINU vs. ISIAKA HASSAN 2014 1 S.C.N.J. 163 AT 166, “It is to be said that documentary evidence needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. Consequently, where the contents of a document are material, it shall be sufficient in any pleading to avert the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are or any part thereof are material.” PER PETER-ODILI, JSC”.
3. That the document sought to be tendered falls within the purview of a public document enshrined in S. 102 of the Evidence Act was not certified (Section. 104 EA) see the cases of MANNIR ABDULLAHI V. FEDERAL REPUBLIC OF NIGERIA SC.288/2012, TABIK INVESTMENT LTD. & ANOR v. GUARANTY TRUST BANK PLC (2011) LPELR-SC.101/2005.
4. That the public document having been certified was not certified properly in accordance with S. 104 of the Evidence Act. A proper certification would include; ”Such certificate as is 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. Section: 104(2) EA.
5. That the document sought to be tendered is an unsigned document. Whether public or private. (s. 94 (1) EA. The law is that an unsigned document is void and worthless. BREWTECH NIGERIA LIMITED v. FOLAGESHIN AKINNAWO (2016) LPELR-40094(CA), GARUBA V. KWARA INVESTMENT CO. LTD (2005) 5 NWLR (PT 917) 160, GBADAMOSI & ANOR V. BIALA & (2014) LPELR 24389(CA).
   The position of the law is an unsigned document cannot generate or initiate an action. An unsigned document is entitled, to no weight. It is incapable of being used by a court to resolve facts that are disputed in an action between the parties. See Tsalisawa v. Habiba (1991) 2 NWLR (Pt. 174) 463. ”Per OREDOLA, J.C.A.(P. 22, paras. A-B).
   Since an unsigned document cannot be used to resolve facts that are disputed then it makes no sense for the court to admit it since it cannot be used to resolve any issue. It therefore becomes inadmissible in a court of law. Such unsigned documents can probably be admitted in customary courts and or magistrate court that is a court of summary trial. Then the question would be on the weight that would be attached to it. In the high court and other superior courts an unsigned document actually has no weight and is of no effect.
6. That the document is a computer generated evidence and the foundation in Section 84 EA has not been complied with nor was a certificate issued.
   S.84 (4)(c) provides ”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.”
   The case of DICKSON V. SYLVIA & ORS (2016) LPELR-41257(SC) is a recent authority on computed generated evidence. Another case which is also a strong authority in admissibility of computer generated evidence is the case of
   KUBOR v. DICKSON (2013) All FWLR (Pt. 676) 392 at 429.”.
7. That the document sought to be tendered being a private document has transmogrified into a public document pursuant to S 102 (b)Public records kept in Nigeria of private documents.
   EZENWA ONWUZURUIKE v. DAMIAN EDOZIEM & ORS (2016) LPELR-26056(SC) Supreme Court stated that “The document need not be the product of the authority as long as it forms part of its records. In my humble view, the origin or authorship of a document is not determinative of its status as a public document; and this is where the trial Court erred for failure to distinguish the source or authorship of a document from what it eventually becomes.The Police, to whom the petition was addressed and who held same as part of their records are public officers within the meaning and intendment of s.109 of the Evidence Act. In the hands of the appellant who wrote it, the document was a private document, but the moment it was received by the Police to whom it was addressed it became part of the record of public officers and thus a public document. It is then a primary evidence in terms of s.94 (1) of the Act and a copy made of it as Exhibit C is secondary evidence which must be certified before it can be received in evidence.” Per NGWUTA, J.S.C. (P. 16, Paras. A-E)”.
   In the case of TABIK INVESTMENT LTD v. G.T.B (2011) All FWLR (pt 602) 1592 at 1607 this Court held that a private petition sent to the police, as in the instant case, formed part of the record of the police and consequently a public document within the provisions of Section 109 of the Evidence Act. The Court held as fallows:-“By the provision of Section 318(b) of the Constitution of the Federal Republic of Nigeria 1999 and Section 18(1) of the interpretation Act, a police officer is a public officer and so all documents from the custody of the police, especially documents to be used in Court are public documents.” Per ONNOGHEN, J.S.C. (Pp. 10-11, Paras. F-B).
8. That the certified true copy of the public document is a photocopy. The law is trite that a photocopy of a certified true copy is not admissible. This position was made clear when the supreme Court stated in MANNIR ABDULLAHI V. FEDERAL REPUBLIC OF NIGERIA SC.288/2012 …”put differently, in the absence of the original documents themselves only such, properly, certified copies are admissible as secondary copies of public documents “but no other kind of secondary evidence,” G and T. I. Ltd and Anor v. Witt and Bush Ltd (2011) LPELR -1333 (SC)

RULES AS TO NOTICE TO PRODUCE

S. 91 Evidence Act 2011 as amended.
“Secondary evidence of the contents of the documents referred to in paragraph (a) of section 89 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; e) when the adverse party or his agent has admitted the loss of the document”
There is a lot of misconception in the application of this section.
Fortunately this misconception has been laid to rest in the recent supreme Court case of NWEKE V. STATE(2017)LPELR-42103(SC)notice to produce a document in accordance with s.91 does not enable a party to fish for a document , nor does it compel the party whom the document is in possession to produce it. It simply enables the party who gives the notice the avenue to tender the document in his own possession which is the secondary document or private document.
The court held in NWEKE V STATE SUPRA
“A party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 91 of the Evidence Act 2011. It is unnecessary to serve a notice to produce, when the secondary copies of those documents are not in the possession of the party serving the notice.” Per GALINJE, J.S.C. (P. 8, Paras. B-E).”

From this decision it is apparent that it is a waste of time to serve a notice to produce when you do not have the secondary document because the party served to produce is not under obligations to produce such document.

Finally, before you allow a document to be admitted due to lack of a solid ground for objection, you might have to reconsider by using the grounds above.

Take note of ‘Cross-Examination’ of the Prosecution Witness(es) in relation to their evidence in court and in relation to what the accused person disputes in regard to the allegations against him.

The interest of justice has moved beyond restricting the Witness to ‘yes’ or ‘No’ response or answer to questions during Cross-Examination. The Court has the discretion to determine what question the Witness should answer and to its satisfaction in the interest of the Court to do ‘justice’. Though, you can only try to restrict the Witness to answering ‘Yes’ or ‘No’ to your Cross-Examination. Remember that Cross-Examination has objective: to discredit the evidence of the Prosecution; test the witness’ accuracy, veracity or credibility; discover who he is and what is his position in life; or shake his credit, by injuring his character. See: Section 223 of the Evidence Act, 2011. But remember that Cross-Examination should not be used as a tool to achieve indecent and scandalous questions unless where they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed. See: section 227 of the Evidence Act, 2011. Maritime Management Associates v National Maritime Authority (2012) 18 NWLR (pt. 1333) 506, SC at page 541, para. C-E; 553 para. G-H) thus ‘The Supreme Court is more interested in substance than technicalities that lead to injustice. Justice can only be done if the substance of the matter is carefully examined’. The same Supreme Court further held in the case of Offor v State (2012) 18 NWLR (pt. 1333) 421 SC at pages 446, para. E) thus ‘The law does not recognize technicalities as a replacement of substantial justice’. The Supreme Court of Nigeria having held on this position by Per Tobi JSC in Omoju V FRN (2008) 7 (pt.1085) SC, 38 r. 8 at page 57, paras. D-G remarking thus ‘Courts of law have long moved away from the domain or terrain of doing technical justice. Technical justice, according to the legal colossus, is not justice, but a caricature of it. Caricatures are not the best presentations or representations, substantial justice is justice personified and is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding’.

You may re-examine-in-chief where there is need to explain matters referred to in cross-examination and if a new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. See: section 215(3) of the Evidence Act, 2011.

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. See: section 216 of the EA.

Where more than one defendant is charged at the same time, a witness called by one defendant may be cross-examined by the other defendant and if cross-examined by the defendant such cross-examination shall take place before cross-examination by the prosecution. See: section 217 of the EA.

Make sure that you study the Evidence Act very well for the criminal trial.

Where the prosecution has not made a prima facie case or linked the accused person to each of the charges or all, you may apply for a NO CASE SUBMISSION. Therefore, NO CASE SUBMISSION may be made in respect of one or more or all of the offences contained in the charge sheet or charge or FIR (First Information Report) where applicable. See: 302 and 303 of the ACJA. The following conditions shall uphold a no-case submission as follows:
‘(a) when there is no evidence to prove an essential element in the alleged offence charged;
(b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.’ See the case of: Ohuka v State (1988) 4 NWLR (pt. 86) 36 and the case of Ibrahim v COP (2010) 23 WRN 170, particularly at pages 183-184 lines 45-5, Per Mary Peter-Odili, JCA (as he then was) held as follows:
‘If there is no sufficient evidence linking the accused with the statutory elements and ingredients of the offence with which he is charged, a court of trial must, as a matter of law, discharge him and it has no business searching and scouting for evidence that is nowhere and therefore cannot be found. That will not be consistent with our adversary system of administration of justice. It is inquisitorial in design and execution’.

Prepare your witness very well for the Examination-In-Chief.

Criminal suit commences with being: mentioned/arraignment; trial/hearing (which encompasses: Examination-In-Chief; Cross-Examination; and Re-Examination), possibly trial-within-trial (where necessary); written address and Judgment.

The requirement of written address is a criminal suit is not provided for under ACJA but the Rules of Court. Therefore, by Section 492(3) of ACJA, the Civil Procedure Rules of Court for the number of days provided for each party to file his written address adopted.

Make sure you are diligent in prosecuting the case of your Client.

While the criminal case is ongoing, be gathering your likely legal authorities to be used in your final written address having regard to the evidence at the trial and the points of law in the suit.

Where the accused person is convicted of ‘homicide’ punishable with death, you may apply for a prerogative of mercy of the President on behalf of the accused person/defendant (section 175 of the Constitution) or the Governor (as the case might be) having regard to section 211 of the Constitution.

Criminal trial may be commenced de-novo in some instances, especially: where the Presiding trial judge is elevated to a Higher Court; dies; or suspended or resigns, and or in such other instances which would require another judge to take over the case. See: Zenith Bank Plc v. Ogbodu (2019) All FWLR (Pt. 988) p. 1039 at 1056-1058 Per Garba JCA, it was stated thus:
“as seen in the statement of the law by the apex court in the case of Babatunde v P. A. S. & T. A. Ltd (supra), in a trial de novo, parties are at liberty to reframe their cases and restructure them as each may deem it appropriate. Parties therefore have the discretion to reframe and restructure their respective cases as they may deem appropriate, to include new facts, claims and reliefs or new facts and defences to the case against them, as the case may be, in a case to be tried de novo and so are at liberty to put up fresh or new cases which they deem appropriate at the trial of the case de novo, frontloading procedure notwithstanding.
In such a situation, none of the parties can legitimately and reasonably claim that an amendment to the other party’s pleadings would overreach him or occasion miscarriage of justice to him since he has unfettered right and discretion to react and to answer the amendments at the trial de novo.” Also see: the case of NGIGE V. OBI (2012) ALL FWLR (PT. 617) 738 AT 757 – 758; where the Court positioned as follows: “Trial or hearing de novo means trying a matter anew, the same as if it had not been held before and as if no decision had been previously rendered. It is a new hearing or a hearing for the second time contemplating an entire trial in the same manner in which the matter was originally held and a review of previous hearing. On hearing de novo, the Court hears the matter as a Court of original and appellate jurisdiction. It means nothing other than a new trial. This further means that the Plaintiff is given another chance to re-litigate the same matter or rather in a more general sense the parties are at liberty to once more reframe their case and restructure it as each may deem fit appropriate. The judicial effect or consequence of a case starting de novo before another tribunal is to render null and void all previous and pending proceedings and orders made in the case before the order of de novo was made.”

You might also apply for appeal where necessary challenging either or all of:

Conviction;
Sentence;
Jurisdiction, etc.

On the Power of the Court of Appeal to entertain bail application pending trial or post-conviction and principles governing same. See the case of ADOLE v. FRN (2022) LPELR-56934(CA) thus “This Court by virtue of Section 28 of the Court of Appeal Act can admit an appellant to bail pending the determination of his appeal if the conditions for granting bail are available. The Supreme Court has held that bail under Section 28 of the Court of Appeal Act is discretionary. The provision does not state whether there has to be a conviction and sentence before bail could be granted. For bail to be granted, there must be an application pending the determination of the appeal. See Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 at 275 SC. Whether or not to grant bail is a discretion to be exercised by this Court. However, the Court of Appeal has the power to entertain a bail application pending trial or post-conviction bail application. Thus, where an application for bail pending trial is refused by a trial Court same can be brought before this Court. See Eyu v. The State (1988) 2 NWLR (Pt.78) 602.In the same vein, where an application for bail pending appeal is refused by a trial Court, this Court can entertain an application for bail pending appeal. See Bamaiyi v. The State (2001) 8 NWLR (Pt.715) 270 SC.” Per MUSLIM SULE HASSAN, JCA (Pp 8 – 9 Paras D – C)

Where there are no express provisions in the ACJA, the Court may apply any procedure that will meet the justice of the case. See: section 492(3) of ACJA.

Always seek mentorship or guidance of experienced seniors or colleagues where need be.

Thanks and God bless!

Email: hameed_ajibola@yahoo.com

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