At the end of the prosecution’s case the defence would be called upon to enter their defence.

Options open to accused in his defence

1. Make a no case submission for the accused
2. May rest his case on that of the prosecution
3. May go ahead to enter his defence by calling his witnesses. Ss 239 ACJL, 302 ACJA

They can make a submission of no case to answer. This can be done either by the defence or the court suomoto.

For there to be a prima facie case the prosecution has to prove the elements of the offence and accused has to be sufficiently linked to the offence. It is essential for the prosecution to link the accused to the offence from the evidence adduced otherwise there is no prima facie case and the court can suomoto enter a no case submission on behalf of the accused or his counsel. The onus lies on the prosecution to ensure that a prima facie case is made out if they intend to obtain a conviction. This stage doesn’t mean the accused has to be found guilty, rather it just means that there is something for him to defend.

What is No case submission?

Submission is made on behalf of the accused where no primafacie case is made out against him.

Submission is made at the end of the prosecutions case either by defence counsel or the court suomotu. IBEZIAKO v COP, MAIDUGURI v R, OKORO v THE STATE

When can a no case submission be made

1. Where no prima facie case has been made against accused. Ss 286 CPL, 191 (3),(5) CPCL ; 239 ACJL; 302,303 ACJA or
2. Where Prosecutions’ case has been so grossly discredited on cross-examination. IBEZIAKO V COP, UBANUTU V COP, OSSAI EMEDO THE STATE, DABOH & ANOR. v THE STATE; or
3. Where prosecutions evidence is manifestly unreliable that no reasonable tribunal can convict on it. MEDO V STATE, UGWU V STATE, DABOH V STATE , TONGO V C.O.P

 

The three grounds are not cumulative, so where any of the grounds occur a no case submission may be made on behalf of the accused person.

 

Purpose of no case submission

1. To save defendant – entering needless defence where there is none
2. To save the time of the court and defendant where prosecution has failed and,

• To save cost of needless defence

 

Effect of no case submission

Effect depends on where it is rightly upheld or wrongly overruled:

1. Where rightly upheld, accused will be discharged and need not enter his defence. Ss. 239(1)(2) ACJL 2011, 286 CPL, 191 (3)(5) CPCL, 302, 357 ACJA

Such a discharge is an acquittal.SeeNwali v IGP 1956 1 ERNLR 1z, IGP v Marke1957 2 FSC. Mohammed v State. So he can plead autrefois acquit

1. Where a no case submission is wrongly overruled, accused may enter his defence or withdraw from proceedings by resting his case. SeeMumuni v the State 1975 6 SC 79, contrast with; Okoro v The State 1988 5 NWLR (Pt.94) 225, Okonofua v The State,Daboh v The State
2. Where no case is rightly overruled the accused is called upon to enter his defence

 

Ruling on the no case submission

• Ruling of court must be brief where submission is to be overruled. Ekanem v R 13 WACA 108, Ubanutu v C.O.P
• It must not be so lengthy as to fetter the discretion of the court. Odofin Bello v The State 1967 NMLR 1, Atana&Anor v AG Bendel 1988 NWLR (pt.75) 201
• Court must confine its ruling to the submission of the no case
• Length of ruling alone will not vitiate a trial. Odofin Bello v The state 1967; Atano& nor v A.G. Bendel state 1988; Ekwunigo v FRN
• When a no case submission is overruled the accused or his counsel is called upon to enter his defence
• Where submission is upheld, ruling is a decision and must contain reasons why the court is upholding it. This is because where it is upheld the accused person is discharged on the merit and cannot be picked up again for the same case. It is appealable. Onagoruwa v The state.

 

Resting his case

Defence may choose to rest his case on that of the prosecution. Ss287 (1)(a) CPL, 36 (11) CFRN 1999. Where;

1. Prosecution has failed to prove their case.
2. His no case submission has been wrongly overruled.

By so doing he is calling upon the court to convict or acquit the defendant based on prosecutions evidence. Suleiman v State

 

Where there is overwhelming evidence against accused it is not advisable to rest his case. See following cases:

• Babalola v State1989 ;Nasiru v the State , Akpan v the state, Ali v the state, NafiuRabiu v State, Nwede v State , Ajibade v State

 

Opening address

• Defence may go straight to his case with an opening address or proceed to call witnesses like the prosecution. Ss. 241 CPL, 192 CPCL, 269 ACJL, 301 ACJA
• Summary of the case for the defence, facts, nature of evidence to be adduced plus number of witnesses and,
• Whether the witnesses are ready to proceed

 

Options open to the accused

What are the options available to the accused in his defence?

There are three options open to the accused in his defence. Ss. 287(1) (a) CPL, 191 (1) CPCL, 240(1) (a)(i)(ii)(iii) ACJL, 358 ACJA

1. He may make statement from the dock – he would not be sworn and would not be liable to cross-examination
2. May enter witness box to give evidence, but would be sworn and be liable to cross-exam,

• He need not say anything at all if he so wishes, Ss.36(11) 1999 CFRN

Defendant must be asked whether he has witnesses to call. Ss. 287 (1)(a) CPL, 36 (6)(d) 1999 CFRN, 240 (1)(a)(iii) ACJL, 358 (1)(c) ACJA.

 

Where accused is unrepresented by counsel, it’s the duty of the court to inform him of the options. Adio v The State  1968, EdetAkpan v The state  1986

Where represented, counsel is deemed to know the law and can advise his client

Effect of failure of court to comply with the procedure? Ss.288 CPL

 

Non-compliance with laid down procedure per se will not vitiate trial. S288 CPL, 360 ACJA.

Accused must show that he has suffered miscarriage of justice;

Eme v The state 1964; Saka v The state, Kajola v The state , Josiah v the state

 

The Ex-improviso Rule

What is Ex-improviso Rule?

When the defence raises a new matter in its evidence. 241 ACJL, 361 ACJA

Which prosecution could not have possibly foreseen.

Prosecution may with leave of court be allowed to call or recall witnesses in rebuttal of such new matter raised. Ss.289 CPL, 241 ACJL, 361 ACJA

The leave of the court must be granted with caution.

 

Court must be convinced that new issues has in fact been raised before granting such leave to prosecution.  May amount to prosecution opening his case again, which is not allowed in criminal proceedings.

 

Distinguish this power of prosecution under s.289 CPL, 361 ACJA from power of the court to call or recall witnesses under s.200 CPL & 237 (1) CPCL, s.246 EA, Ally v state, see Onuoha v The State, Balu v COP, Ayubikhan v State.

S.200 CPL, 237 CPCL court can exercise power any time before judgment.

s.289 CPL exercisable only when new matter arises in evidence of defence.

 

Visit to locus in quo

It refers to inspection of movable/immoveable evidence by court for proper determination of the case before it s.127 (1)(a)(b) EA, 205 ACJL, 207 CPL, 243 CPCL, 263 ACJA

Can either do it during prosecution or defence case.

 

Procedure for visit

Two laid down procedures in conducting visit 127 (2)(a)(b) EA

• The court may adjourn to locus and continue proceedings there by taking evidence from witnesses s 127 (2)(a) EA,COP v OLOOPA
• Court with parties visit locus to inspect, take note of things and reconvene back in court to continue proceedings s.127 (2)(b) EA, R v Dogbe.
• In criminal proceedings accused person(s) must be present at the locus criminis. Adunfe v IGP 1957

Non-compliance with laid down procedure will not vitiate a trial unless the accused can show he suffered miscarriage of justice. See Aboyeji v Momoh 1994, Aremu v AG Western Nig 1976

Final Addresses

• Final address is the summing up of the facts and the evidence adduced before the court applying the law to them and each party asking the court to return verdict in his favour
• The purpose is to assist the court in the just determination of the case Ss269 (2) ACJL, 241 CPA, 192 CPC, 304(1) ACJA. Failure ….
• In criminal trials it is the defence that addresses the court first at the close of proceedings 241 CPL, 269(1) ACJL, 304 ACJA. Will prosecutor have right of reply?
• Depends on how the accused conducts his case/ status of the prosecutor. 271 ACJL e.g. a state counsel will always have a right of reply. There are 3 circumstances that will determine if the prosecutor will have the right of reply to that address.

1. If no witness called except accused or witness solely as to his character and No document is put in evidence; No reply. Prosecutor shall NOT have right of reply 241 CPL, s269 ACJL , 304 (1)ACJA, Alhaji v COP 1963 NNLR 74
2. Where defence introduces new matter in the opening address which was not supported by evidence, the court in its discretion MAY allow the prosecution to reply. Ss.241 CPL, 194(1) CPCL, 269(1) ACJL, 304 ACJA
3. Where other witnesses minus the accused or witnesses solely as to character were called and documents tendered , prosecution SHALL have right of reply Ss 242 CPL, 270 ACJL 2011, STATE V SANUSI; 133 , 304(2) ACJA

Note: where prosecutor is a law officer he will always have a right of reply. Ss.1 CC, 202, 243 CPL, Awobotu v State 1976 5 SC 49; 271 ACJL, 304(3) ACJA

 

Ethical issues

Duty of defence counsel

He must defend the accused to the best of his ability. See Rule 37(1)(2)(3) RPC, Rule 38 RPC and generally;

Rule 32(1)(2) RPC, Udofia v State 1984 All NLR 44, Udo v State 1988 3 NWLR (pt.82) 316