Evidence of children

• Children are competent witnesses
• If unable to understand question or give rational answers then not competent
• S 175(1) EA
• Note unsworn evidence – child under 14 yrs – s 209 (1) EA
• Court to be satisfied – as to sufficient intelligence to justify reception and duty of speaking the truth: A condition precedent to the reception of his evidence is that it must proven that he possesses sufficient intelligence to justify reception and duty of speaking the truth and furthermore after he passes this test a child that’s below 14 can only give unsworn evidence.
• S 209 (3)

 

Principle - Illegally obtained evidence is admissible subject to the court determining the desirability of the evidence s 14 EA

 The factors to be taken into consideration are in s 15 EA. Looks at the probative value of, difficulty of obtaining the evidence without that illegality

 

Confession – s28 EA

 A confessional statement must directly relate to the charge before the court for it to be relevant.

S 29

Basis for admissibility of a confessional statement is that the prosecution must show that that confessional statement was not obtained by oppression, (5) defines oppression. “represent” here refers to the defendant

Primarily it is the duty of the defendant to object to the admissibility of a confessional statement but if a defendant doesn’t object to admissibility the court suomotu can object to admissibility (3)

The prosecution has the burden of proving to the court beyond reasonable doubt that the confessional statement was obtained voluntarily

 

Retraction or denial is not a basis for rejecting the confessional statement or ordering a trail within trail, its just the weight to be attached to the confession that would be …

 

Trial within trial – prosecution starts because the burned is on the prosecution to prove the statement is voluntary. Evidence would be called and the court would make an order

S15(4) ACJA S 9(3)ACJL

In Lagos the primary way of taking a confessional statement in Lagos is through a video recording and the said recording and copies of it may be produced at trial. The prosecution must lay proper foundation (s 84 EA), this is only relevant if the confessional statement is in question. If not you can just show the endorsement of the legal practitioner.

In ACJA, writing is primary and it may be supported by electronic evidence.

Be sure of the jurisdiction of you’re dealing with. Where there are no provisions like this, you go to the judges rules  - that its taken before a superior officer and he endorses it.

 

S 29(4) EA – this relates to the use of an admitted confessional statement where there co-defendants. One confessional statement made by an accused does not ordinarily bind the co-accused. If they are not charged jointly, the provision is for those charged jointly, so there must be a trial where they are co-defendants. If the person making the confessional statement happens to be a prosecution witness.

 

There is a difference between a mere statement and a voluntary statement. The moment a suspect is arrested, he makes a statement. A mere statement does not undergo these safe guards. S17 ACJA – ordinary statement requires the presence of a legal practitioner whereas a confessional statement does not require the presence of a legal practitioner.

 

S 31 EA – confessional statement obtained by deception is admissible. Note there is a difference between deception and oppression.

 

S 30/37-40 – hearsay is ordinarily not admissible except certain conditions have been met. It must be related to the fact in issue and it must tend to prove that allegation.

 

S68 EA – expert evidence : lay foundation

 

S 84, 31(1)b ,51 and 54.

 

S115 EA – affidavit

 

Competence and compellability – s 180 EA

A defendant is not compellable, the presumption of innocence is there and the burden of proof is on the prosecution

S181 EA – a defendant need not say anything, but if he chooses not to say anything the prosecution may comment on it but that comment should not draw the inference that his silence is guilt.

180 (1) (c)

 

No – case submission – IBEZIAKO V COP

There are three/ two major ingredients or grounds for sustaining a no-case submission

1. The essential ingredients of the offence have not been proven
2. It has been discredited by reason of cross- examination
3. The prosecutions case is manifestly unreliable that no reasonable tribunal would convict on it

 

Rest your case - Babalola v The state

The implication

 

No case submission –

If the court upholds the no case submission, the court would make an acquittal. It is a judgement on the merit thus it’s an acquittal not discharge.

 

Ordinarily when it’s a trail on information it’s a judgment on the merit and an acquittal. But when it summary it’s a **discharge

 

S180(e)EA

Note where the witness is. If the person is in the dock, the person can make a statement but that person is not deemed a witness and cannot be cross-examined.

 

S 200-204 EA

202 – perjury , 203 – road traffic legislation. Treason, unsworn evidence

 

s212 – all witnesses should be out of court and out of hearing except they are parties and legal practitioner. If however they don’t leave it doesn’t deprive the court form taking their evidence however it’s the weight to be attached to it. Falaju v Amosuis the locus classicus.

S 214 – examination

S 215(4) – re-examination is circumscribed , it must relate to matters referred to in cross-examination. It is limited

S 216 EA

218 – sub poena

s 221 – leading question

know the sections and sub-sections, be particular

s 239 – refreshing memory: oral evidence must be direct at all times. There must be an application to court. Foundation has to be laid. Counsel ahs to find out when he wrote what he wants to refer to

Evidence of previous conviction – s 248 what are the steps, and what must he prove ? Certificate of conviction signed by the registrar of court. Depending on the level of court registrar/*scribe – person in custody of the record.

S 250 – central registry where records are kept , relate to s 16 ACJA 

 

Competence and compellability – spouses s 182  .a spouse is a competent and compellable witness for either the prosecution or defence where it’s a sexual offence

 

APPEALS

Abandonment of appeals, abatement

Express and implied.

How to reactivate an expressly abandoned appeal.

 

Appeal that has to deal with capital punishment – the appeal must be made within 7 days. STATE V OMOYELE (2017) 1 NWLR PT 1547 Pg 191

 

Draft ground of appeal, and how to raise issues.

 

Judgment and sentencing

Judgment must be delivered 90 days after final addresses. Unless it occasions miscarriage of justice, judgment delivered outside 90 days is still valid.

Contents of a valid judgement

1. It must be in writing
2. Points of determination
3. Decision of the court on those points
4. Reasons for the decisions
5. Date and signature

 

It must be written and signed before another judge can deliver the judgment.

 

Elevation of the judge – he would continue to sit for the purpose of completing that part-heard matter. A part-heard matter is a matter that the prosecution has closed his case. If the prosecution has not closed his case, the case would start de novo with a fresh arraignment.

 

Oral judgment – there is no oral judgment in Nigeria. , in the north there is no oral judgment

 

Jurisdiction

Court martial, special court martial

 

Know the procedure for refreshing memory

Know the procedure for convicting someone where there has been a plea of guilty, know the responsibility of the prosecution, defence counsel and court. They don’t convict summarily.

 

Sentencing

Under 18, ACJA – life imprisonment. Others say retained at the pleasure of the governor

 

2018 Re-sit past questions

Question 4

1. It is a Leading question. Generally it is not allowed but it is Introductory par
2. Open question, 5 - prompting question: its an open but prompting, 7 – prompting. Prompting question enable the witness to further speak and give further evidence.
3. Q 4 – C of O is a public document and so it should be the original copy tendered in evidence and where this isn’t available it should be the CTC. Q 5 – no the objection was improperly overruled, a confessional statement is meant to be tendered through the IPO. The witness cannot identify the confessional statement. The objection ought to be upheld.
4. It was not properly admitted as it ought to be CTC. Is that the original copy? What happened to the original, is there another copy
5. The person is not the IPO who is the proper person to tender the confessional statement, proper foundation has not been laid to explain the whereabouts of the IPO as to why he cannot tender it personally,