PRELMINARIES TO TRIAL

The Black Law Dictionary defines a trial as:

A judicial examination and determination of issues between the parties. A judicial examination
in accordance with the law of the land, or of a cause either civil or criminal, of the issues
between the parties, whether of law or fact, before a court that has proper jurisdiction.1

A trial is therefore a judicial examination and determination of issues between the parties in accordance
with the law of the land. The issues between the parties may be civil or criminal. Where the issues
between the parties are criminal, then a criminal trial is being undertaken by the court.

We will now consider preliminary matters that are relevant to a criminal trial.

PLACE OF INQUIRY OR TRIAL

A court of The Gambia has the general authority to cause to be brought before it a person who is within
the local limits of its jurisdiction and is charged with an offence committed within The Gambia, or which
according to law may be dealt with as it if had been committed within The Gambia, and to deal with the
accused person according to its jurisdiction.2

Where a person accused or having committed an offence within The Gambia has escaped or removed
from the Region or district within which the offence was committed and is found within another Region
or district, the court within whose jurisdiction he or she is found shall cause him or her to be brought
before it and shall, unless authorized to proceed in the case, send him or her in custody to the court
within whose jurisdiction the offence is alleged to have been committed. The court within whose
jurisdiction the accused was found could also require him or her to give security for his or her surrender
to the court within whose jurisdiction the offence is alleged to have been committed to answer the
charge and to be dealt with according to law.3

Subordinate courts may be held at any place within the local limits of their jurisdiction.4 For a Children’s
Court, it shall, wherever possible, sit in a different building from the one normally used by other courts.5
It should be noted that “A finding, sentence or order of any criminal court shall not be set aside merely
on the ground that that the inquiry, trial or other proceedings, in the course of which it was arrived at or
passed, took place in a wrong Region, district or other local area, unless it appears that the error has in
fact occasioned a failure of justice.”6

The High Court may exercise its criminal jurisdiction at any place where it has power to hold sittings.7 It
may sit at such places in The Gambia as the Chief Justice may determine, and he or she may establish
permanent divisions of the court to sit at various places throughout The Gambia and appoint judges of
the Court to any such division.8 It shall also, except during vacation, be open throughout the year for the

1
See Wali JSC in Kajubo v. The State (1988) 3 SCNJ (Pt.1) 79 at 90
2
Section 51 of the CPC
3
See section 52 of the CPC
44
S. 20 of the Courts Act
5
S. 71 of the Children’s Act
6
S. 290 of the CPC
7
Section 54 of the CPC
8
S. 131 (3) of the 1997 Constitution

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hearing, trial and determination of any criminal and civil cases and for the disposal of all legal business
pending therein.9

The High Court can, however, change venue if it appears that10:

a. A fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto;
b. Some question of law of unusual difficulty is likely to arise;
c. A view of the place in or near which any offence has been committed may be required for the
satisfactory inquiry into or trial of the same;
d. An order under this section will tend to the general convenience of the parties or witnesses or
the more speedy or satisfactory administration of justice; or
e. Such an order is otherwise expedient for the ends of justice or is required by any provision of
this Code. In exercising its powers on s. 63 (1) (e), the High Court may order that11:-
i. An offence inquired into or tried by a court not otherwise empowered or competent to
inquire into or try the offence,
ii. A particular criminal case or class of cases be transferred from a subordinate court to
any other criminal court of equal or superior jurisdiction,
iii. An accused person be tried by the High Court itself,
iv. An accused person committed to the High Court for trial be tried summarily in
accordance with Part V of the CPC by any court competent to try the offence with which
the accused is charged, including the court which committed the accused person.

In exercising its powers under s. 63, the High Court may act on the report of the subordinate court or on
the application of a party interested or on its own initiative.12 An application to the High Court for it to
exercise its powers under s.63 shall be made by motion and supported by an affidavit, unless the
Attorney General is the applicant.13 Where the application is made by an accused person, he or she shall
give to the Attorney General notice in writing of the application, together with a copy of the grounds on
which it is made. An order on the merits of the application shall not be made unless at least 24 hours
have elapsed between the giving of the notice and the hearing of the application.14

Where the application to change venue is made by an accused person, the High Court may direct him or
her to execute a recognizance, with or without sureties, on condition that he or she will, if convicted,
pay the costs of the prosecutor.15 An application made by the Attorney General under s. 63 shall be
granted as of course.16 Where the High Court decides to try an accused person by itself for an offence
triable by a subordinate court, it shall follow the procedure provided for in Part V of the CPC.17

9
S. 5 of the Courts Act
10
See s. 63 (1) (a) – (d)
11
See s. 63 (1) (e) (i) – (iv)
12
S. 63 (2) CPC
13
S. 63 (3) CPC
14
S. 63 (4) CPC
15
S. 63 (5) CPC
16
S. 63 (6) CPC
17
S. 63 (7) CPC

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The President of the Court of Appeal may, in consultation with the Chief Justice, establish such divisions
of the Court of Appeal as he or she thinks fit to sit at such places in The Gambia as he or she may
determine.18 The Supreme Court may sit at any place in The Gambia appointed by the Chief Justice.19

TRANSFER OF CASES

If on the hearing of any proceedings under the Criminal Code it appears that the cause or matter is
outside the limits of the jurisdiction of the court, the court shall, on being satisfied that it has no
jurisdiction, direct the case to be transferred to the court having jurisdiction.20

If the accused person is in custody and the court directing the transfer thinks it expedient for him to
remain in custody, or if he is not in custody but the court directing the transfer thinks he should be, the
court shall direct that the offender be taken by a police officer before the appropriate court having
jurisdiction. The court making such an order shall give a warrant to the said police officer for onward
delivery to the other court along with the complaint or charge sheet and any executed recognisances, if
any. The complaint or charge sheet and recognisances shall be treated as if they were taken before the
court the case is transferred to.21

If the accused person is not continued or placed in custody as stated above, the court shall inform him,
or her that it has directed the transfer of the case and thereafter, it shall transmit the documents stated
above to the court the matter is transferred to.22

Where a charge has been brought against any person for an offence not triable by a subordinate court,
the Magistrate may subject to s. 9923 of the CPC remand that person into custody until such time the
matter is mentioned in the High Court.24

OTHER PRELIMINARY ISSUES TO CONSIDER BEFORE A TRIAL

TRIAL AT PLACE WHERE ACT DONE OF WHERE THE CONSEQUENCE OF OFFENCE ENSUES

Where a person is accused of the commission of an offence by reason of anything which has been done
or of a consequence which has ensued, the offence may be inquired into or tried by a court within the
local limits of whose jurisdiction the thing has been done or the consequence has ensued.25

TRIAL WHERE OFFENCE IS CONNECTED WITH ANOTHER OFFENCE

When an act is an offence by reason of its relation to any other act which is also offence or which would
be an offence or which would be an offence if the doer were capable of committing an offence, a charge

18
S. 129 (4) of the 1997 Constitution
19
S. 125 (4) of the 1997 Constitution
20
S. 62 (1) CPC
21
S. 62 (2) CPC
22
S. 62 (2) CPC
23
S. 99 deals with grant of court bail
24
S. 208 CPC
25
S. 56 CPC

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of the first-mentioned offence may be inquired into or tried by a court within the local limits of whose
jurisdiction either act was done.26

TRIAL WHERE PLACE OF OFFENCE IS UNCERTAIN

When it is uncertain in which of several local areas an offence was committed or when an offence is
committed partly in one local area and partly in another, it may be inquired into or tried by a court
having jurisdiction over any of the local areas. Again when an offence is a continuing one, and continues
to be committed in more local areas than one, or when an offence consists of several acts done in
different local areas, it may be inquired into or tried by a court having jurisdiction over any of the local
areas.27

OFFENCE COMMITTED ON A JOURNEY

Where an offender commits an offence in the course of a journey or voyage, the offence may be
inquired into or tried by a court through or into the local limits of whose jurisdiction the offender passed
in the course of that journey or voyage.28

HIGH COURT TO DECIDE IN CASES OF DOUBT

When there is a doubt as to the appropriate court a matter is to be inquired to or tried, the court having
such doubt may, in its discretion, report to circumstances to the High Court and the latter shall decide
the court the matter should be referred to. The decision of the High Court on such matters is final,
unless where the accused shows that no court in The Gambia has jurisdiction in the case.29

PUBLICITY OF TRIAL

The general rule by virtue of s. 61 CPC is that criminal trials are to be held in open court to which the
general public may have access, so far as the same can conveniently contain them. This is reinforced by
s. 24 (2) of the 1997 Constitution which provides that “all proceedings of every court and
proceedings relating to the determination of the existence or extent of civil rights or obligations
before any other authority, including the announcement of the decision of the court or other
authority, shall be held in public”

Note that this rule is not absolute because the proviso to s. 61 provides thus:

“Provided that the presiding Judge or Magistrate may, if he or she thinks fit, order at any
stage of the inquiry or trial of any particular case that the public generally or any
particular person shall not have access to or be or remain in the room or building used
by the court.”

The proviso to s. 24 (2) also provides:

26
S. 57 CPC
27
S. 58 CPC
28
S. 59 CPC
29
S. 60 CPC

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 “Provided that the court or other authority may, to such extent as it may consider
necessary or expedient in circumstances where publicity would prejudice the interests
of justice or interlocutory civil proceedings, or to such extent as it may be empowered
or required by law to do so in the interest of defence, public safety, public order, public
morality, the welfare of persons under the age of eighteen years or the protection of
the private lives of persons concerned in the proceedings, exclude from its proceedings
persons other than the parties thereto and their legal representatives.”

Note further that in cases before the Children’s Court, “the child's right to privacy shall be respected
throughout the proceedings, and accordingly, proceedings shall be held in camera or where necessary
by video links.”30 Apart from members and officers of the Court and subject to s. 72 (1) (f)31 of the
Children’s Act, only the following persons may, at the discretion of the Court, attend a sitting of a
Children’s Court:
a. the parties to the case before the Court, witnesses and other persons directly concerned in the
case;
b. the parent or guardian of the child before the Court;32
c. a Social Welfare Officer;
d. a Probation Officer; and any other person whom the Court authorises to be present.

The publication of any information that may lead to the identification of a child in any matter before the
Children’s Court is prohibited, except by permission of the Court.33

PRESENCE OF PARTIES

The accused person is required to appear in court throughout his trial unless his personal attendance is
dispensed with under s. 78 of the CPC. Where the accused does not appear personally and pleads guilty
in writing pursuant to s.78 of the CPC, the court may proceed to convict him even in the absence of the
prosecutor or the accused’s counsel.34 The court cannot however proceed with a case in the absence of
the accused person if he or she is charged with a felony, unless he or she consents.35 Thus, unless the
accused person consents the trial shall not take place in his or her absence, unless he or she so conducts
himself or herself as to render the continuance of the proceedings in his or her presence impractical and
the court has ordered him or her to be removed and the trial to proceed in his or her absence.36

For cases before a subordinate court37, where the prosecutor does not appear at the hearing of the
charge, after having notice of the time and place named for the hearing, the court shall discharge the

30
S. 72 (1) (b) of the Children’s Act
31
S. 72 (1) (f) provides that “the child shall have a right to legal representation and legal aid provided by
Government…”
32
S. 72 (1) (d) of the Children’s Act also provides that “parents or guardians of the child shall be present whenever
possible”. See also s. 216 of the Children’s Act
33
See s. 73 of the Act. A violable of this provision is punishable
34
See proviso to s. 160
35
S. 163 CPC read together with s. 24 (3) (f) of the 1997 Constitution
36
See s. 24 (3) (f) of the 1997 Constitution
37
This is found in Part V of the CPC which exclusively applies to cases before a subordinate court. Pat VA which
applies to the High Court does not have a similar provision

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accused person, unless for some reason it thinks it proper to adjourn the hearing of the case until some
other date, upon such terms as it thinks fit.38 Where both parties appear or the personal attendance of
the accused is dispensed with, the court shall proceed to hear the case.39

MANDATORY LEGAL REPRESENTATION

A person accused of an offence has a right to the right to be defended by a counsel of his or her
choice.40 Note, however, that it is mandatory for legal aid to be provided at the expense of
Government to children involved in any criminal matter and accused persons charged with
offences that carry the death penalty or life imprisonment.41 Persons who earn not more than
such minimum wage as the Government may specify and desire legal representation in any civil
or criminal matter may be entitled to legal aid at a date to be fixed by the Attorney General.42

COMMENCEMENT OF TRIAL

THE ACCUSED PERSON’S PLEA

If the accused person is personally present, the substance of the charge shall be read stated and
explained to him and if he not present, to his counsel.43 The accused could take any of the following
actions:

STAND MUTE/FAILURE TO PLEAD

For cases before a subordinate court, s. 164 (4) of the CPC provides:

“If the accused person or his counsel, as the case may be, refuses to plead, or if he or she does
not appear and the court decides to hear the case in his or her absence under the provisions of
subsection (1) of section 163 of this Code, a plea of “not guilty” shall be entered and the plea so
entered shall have the same force and effect as if the same had been actually pleaded.”

For cases before the High Court, s. 223 of the CPC provides:

If an accused person being arranged on any information stands mute of malice, or neither will,
nor by reason of infirmity can, answer directly to the information, the Court, if it thinks fit, shall
order the Registrar of the High Court or other officer of the Court to enter a plea of “not guilty”
on behalf of the accused person, and the plea so entered shall have the same force and effect as

38
S. 160 CPC
39
S. 161 CPC. Note that this section only applies to trials before a subordinate court.
40
See s. 159 of the CPC and s. 24 (3) (d) of the 1997 Constitution
41 See s. 30 of the Legal Aid Act, s. 24 (3) of the Constitution and s. 72 (1) of the Children’s Act

42 See s. 30 (1) (b) of the Act.

43
S. 164 of the CPC for cases before a subordinate court and s. 216 for cases before the High Court

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 if the accused person had actually pleaded the same, or else the Court shall thereupon proceed
to try whether the accused person is of sound or unsound mind, and if he or she is found of
sound mind, shall proceed with the trial, and if he or she is found of unsound mind, and
consequently incapable of making his or her defence, shall proceed in the manner provided by
section 132 of this Code.”44

In the Nigerian case of Gaji v. The State45, the accused was charged with culpable homicide punishable
with death (murder) for assaulting and killing the deceased. During his trial, the accused refused to
plead to the charge and a plea of not guilty was recorded by the court. The accused rested his case on
that of the prosecution. He was convicted of a lesser offence and on appeal the Nigerian Supreme Court
observed that the trial judge was right in entering a plea of not guilty when the accused stood mute and
failed to plead.

PLEA OF GUILTY46

S. 164 (2) provides:

“If the plea is one of guilty, the plea shall be recorded nearly as possible in the words used, or if
there is an admission of guilt by letter under the provisions of subsection (1) of section 78 of this
Code, the letter shall be placed on the record and the court shall convict the accused person or
pass sentence or make an order against him or her, unless there appears to it sufficient cause to
the contrary.”

S. 224 provides:

“(1) If the accused person pleads “guilty” the plea shall be recorded and he or she may be
convicted thereon.

(2) Where an accused person is arraigned on an information for an offence and can lawfully be
convicted on that information for some other offence not charged in the information, he or she
may plead “not guilty” of the offence charged in the information but “guilty” of the other
offence and upon the plea of guilty the Court may, with the consent of the Attorney General,
acquit the accused person of the offence with which he or she is charged and convict him or her
of the other offence to which he or she pleads guilty.”

Where an accused person pleads guilty pursuant to ss. 164 (2) and 224 of the CPC, the following
conditions must be fulfilled before the accused is convicted. Firstly, the court dealing with the case must
be clear that the accused understands the charge against him.47 In Kebba Bojang v The State, the records
of the Magistrate disclosed thus:

“Court: Charge read and explained to the accused in Mandinka.

Plea: Guilty.”

44
Note the differences in wordings between s. 164 (4) CPC and s. 223 CPC
45
(1975)5 SC 61.
46
S. 164 (2) applies to trials before a subordinate court while s. 224 applies to trials before the High Court.
47
Note that section 24(3) (b) provides that every person who is charged with a criminal offence shall be informed
at the time he or she is charged, in a language he understands and in detail, of the nature of the offence charged

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The Gambia Court of Appeal called the plea as recorded by the Magistrate the shorthand way of stating
what the accused stated in Mandinka. The Court of Appeal further held that the accused plea as
recorded by the Magistrate clearly violated s.164 (2) of the CPC because the word ‘guilty’ could not have
been the exact words by the accused.

It is also not enough for an accused’s plea to be recorded as ‘I admit it’. In John v Regina48 it was pointed
out that these words do not without more constitute a sufficient plea to a charge of an offence
consisting various ingredients. Thus the accused’s plea must reflect what the accused said in response to
the ingredients of the offence put to him and his responses must accord with the said ingredients. It is
therefore mandatory for a guilty plea to be recorded as nearly as possible in words of the accused.49
Convictions in many cases were quashed by the Court of Appeal based on this and other reasons.50

The court’s record must therefore show that the substance of the offence charged is read and explained
to the accused in a language he understands. All the ingredients of the offence charged must be put to
him and he must understand them. If the explanation does not portray all the ingredients of an offence
when translated in the language the accused understands, then the translation is not complete or full.
As stated by Chomba JA in Kebba Bojang v State51:

‘… when an accused is ill-educated and is not legally represented, the bounden duty of the
Magistrate when taking the plea is to ensure that all the essential elements of the offence
charged are put to the accused. And the record of trial should reflect that that was done.’

Watkins LJ also stated in R v Iqval Begum52 at pages 100-101 that :

‘… unless a person fully comprehends the charge which that person faces, the full implications of
it and the ways in which a defence may be raised…so that the court can be sure that person has
pleaded guilty with a free and understanding mind, a proper plea has not been tendered to the
court.’

Plea taking therefore does not consist in just calling the accused to plead guilty or not guilty when the
charge is put to him.

Secondly, the court must hear the prosecution state the facts of the case. The accused would then be
asked to react to the facts as stated by the prosecution.53 He should be asked whether he agrees or does
not agree with the facts.54 In Osuji v. Inspector General of Police,55 the accused pleaded guilty to a
charge of unlawful assault. The charge was not explained to the accused. The prosecution stated the
facts against the accused, and the trial magistrate, without asking the accused whether he admitted the
acts as stated by the prosecution convicted him. On appeal, the conviction was quashed. In Ahmed v.

48
(1958) R & N 798, quoted in Kebba Bojang.v The State
49
See also Jallow (Omar) and Ors. v. The State 1995/96 GR 307. See also Smith v. The State 1995/96 G.R 152, Ngum
v. The State 1995/96 GR 234, Kyn Kin v. The State 1995/96 GR 72, Jallow (Momodou) v. The State 1995/96 GR 83
50
See Kebba Bojang v The State, Sarjo Danso v The State and Sulayman Ndure v The State Cr. App No. 45/95
51
op cit
52
(1991) 93 Cr. App R 96, quoted in Kebba Bojang v The State
53
See Sillah (Mawdo) v. The State 1995/96 GR 188 at 191
54
Chomba JA in Sarr v The State 1995/96 GR 335
55
1965 LLR 143

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Commissioner of Police,56 the conviction of the accused for a road traffic offence upon a plea of guilty
was quashed on appeal because the charge was not explained to the accused.

Thirdly, the court must be satisfied that the accused intended to admit the commission of the offence
charged. In Singhateh v. R57, the Gambia Court of Appeal held that before accepting a plea of guilty, a
court should satisfy itself that an accused really means to admit his guilt as to each and all the
ingredients of the offence. The accused’s plea must therefore be an unequivocal plea of guilty.

Where the accused enters an equivocal or ambiguous plea, the court must reject such a plea and a
conviction must not be entered against the accused on the basis of the plea. In the Nigerian case of
Aremu v. Commissioner of Police58 the accused was charged with the offence of escaping from lawful
custody. He pleaded “guilty with certain reasons”. The trial magistrate, without inquiring from the
accused if he admitted the facts stated by the prosecution, convicted him on his plea. On appeal against
conviction, the appellate court held that the plea of the accused did not amount to a plea of guilty, on
the basis of which the trial court could record a conviction. The appellate court further stated that the
trial court should have taken into consideration the statement made by the accused in mitigation, that
he was never in lawful custody, as a refutation of the facts stated by the prosecution. Thus a plea of not
guilty should have been entered for the accused. His appeal was therefore allowed.

Where an accused makes an unequivocal or unambiguous plea of guilty and denies at any stage of the
proceedings before being sentenced that he was criminally liable, the court shouldn’t convict based on
his plea. This is because his denial of criminal liability indicates that he did not intend by his plea to
admit the charge against him. In the Nigerian case of Onuoha v. Inspector General of Police59, the
accused was charged and convicted of stealing. He appealed against his conviction on the ground that
he did not intend to admit the charge and that he did not plead guilty. Evidence before the appellate
court showed that the accused had pleaded not guilty and a plea of guilty had been mistakenly recorded
by the trial magistrate. When the trial magistrate asked the accused if he took the money alleged to
have been stolen, he responded in the affirmative and was convicted by the magistrate for the offence.
The appellate court held that the accused’s statement that he took the money did not amount to an
admission of theft. He could, as was the revealed in that case, have taken the money in order to keep it
safe for the complainant. Thus the trial court ought to have questioned the accused further to elicit
whether he intended to keep the money for himself, in other words to steal it. It is only when the
answers received by the court showed that the accused intended to keep the money for himself that the
court should have convicted for stealing.60 The appeal was therefore allowed.

Fourthly, the facts stated by the prosecution and admitted by the accused must sustain the charge
against the accused. Therefore all the ingredients of the offence alleged must be contained in the facts
stated by the prosecution, before the court will convict on the accused’s guilty plea. In the Nigerian case
of Idan v. Police61, the facts stated by the prosecution on a charge of receiving stolen property did not
include the fact that the accused knew or ought to have known that the property was stolen. On appeal
against conviction for receiving stolen property, the court held inter alia that the facts stated by the
prosecution could not sustain a charge or receiving stolen property. The appeal was therefore allowed.

56
(1971) 1 NMLR 409
57
1960-1993 GR 69
58
1980 (2) NCR 315
59
1956 NRNLR 96
60
See also R v Middlesex Justice, ex parte Rubens (1970) 54 Cr App R 83
61
(1964) NMLR 103

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In Abele v Tiv Native Authority (another Nigerian case)62, the accused persons pleaded guilty to a charge
of brigandage and rioting, armed with deadly weapons. The prosecution stated that the accused persons
were armed with sticks. No sticks were tendered in evidence. The accused persons were convicted on
their pleas of guilty. On appeal against conviction, on the charge of rioting armed with deadly weapons,
the court held that the facts merely disclosed the offence of rioting, not the offence rioting armed with
deadly weapons. Since no sticks were tendered in evidence, it was impossible to state whether the sticks
would qualify as deadly weapons. The court held that the facts adduced by the prosecution could only
sustain a conviction for rioting. The court therefore substituted a conviction for rioting for that of rioting
armed with deadly weapons.

In Njie v. The State63, the Gambia Court of Appeal emphasized circumstances in which an appellate court
may disturb convictions based on plea of guilty. A guilty plea is therefore disturbed where:

a. It could be shown that the appellant did not appreciate or understand the charge or procedure
and thus pleaded guilty by mistake;
b. The plea was so ambiguous that the appellant could not be said to have unequivocally pleaded
guilty;
c. The appellant had pleaded guilty but had given an explanation which practically amounted to a
defence or negative the plea of guilty;
d. The plea of guilty was such as in fact to be no plea at all; or
e. On the admitted facts upon which the prosecution has founded or it could be shown that the
appellant had pleaded guilty to a non-existent crime or no offence was disclosed upon which the
appellant could legally be convicted on the charge preferred or there had been a miscarriage of
justice by an apparent wrong acceptance of a plea of guilty.

Where expert evidence is required to prove an offence, as in drug offences,64 the court must not convict
an accused on his plea in the absence of such evidence. In the Nigerian case of Stephenson v Police65, the
accused pleaded guilty inter alia to a charge of being in possession of Indian hemp and was convicted.
On appeal against conviction, it was held that the conviction could not stand because the plants alleged
to be Indian hemp were not tendered in evidence. Furthermore, there was no expert evidence, in the
form of a “Government chemist’s report”, certifying the plants as Indian hemp. The appeal was allowed
and a retrial ordered.

The prosecution must also prove that the thing to be used as evidence was kept in safe custody before it
was sent for scientific analysis, before the court can convict an accused on a guilty plea. If there is any
evidence that the evidence was tampered with or it was substituted with something else, the court must
not convict an accused on his guilty plea even where there is expert evidence. In Isola v The State66, the
accused was convicted on his plea of guilty of being in possession of Indian hemp. The plant that was
recovered from the accused was taken to the police station, and sent to the forensic laboratory for
scientific analysis, after having been kept at the police station for 24 hours. On appeal against
conviction, it was held that there was a real possibility of the plant having being tampered with during

62
(1965) NMLR 425
63
1960-1993 GR 400
64
See s. 83 of the Drug Control Act. See also s. 126 of the CPC
65
[1966] 2 All NLR 261
66
(1969) NMLR 259. See also Offor v. The State (1968) NMLR 73; Ashake v The State [1968] 2 All NLR 198; Uwa v
Commissioner of Police (1972) ECSLR 727; Commissioner of Police v. Idu (1975) 5 ecslr 91; and Attorney General of
the Federation v. Dr. Clement Isong *1986+ 1 QLRN 75, all cited in Doherty’s book at page 255

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the period it was kept at the police station. Thus the absence of absolute authority certainty that it was
the plant recovered from the accused that was sent for scientific analysis led the court to appeal the
appeal.

Where there is a doubt as to whether the thing found in the accused’s possession was that tendered in
court, the doubt should be resolved in favour of the accused. Even if the accused pleads guilty to the
charge and admits the facts as stated by the prosecution, the court shouldn’t convict. In the Nigerian
case of Essien v R67 (a WACA decision), the accused was convicted on his plea of guilty of possession of
forged currency. Evidence showed that the currency notes tendered at the trial were in fact genuine.
There was, however, doubt as to whether the genuine currency was that found in possession of the
accused. The appellate court held that the doubt ought to be resolved in favour of the accused. The
court therefore assumed the currency found with the accused was genuine and the appeal was allowed.

If the facts as stated by the prosecution and accepted as correct by the accused prove the offence with
which the accused is charged, the accused is convicted. His plea in mitigation is then taken and he is
then sentenced.

PLEA OF NOT GUILTY AND EFFECT THEREOF

For criminal matters being heard before a subordinate court, s. 164 (3) provides:

“If the plea is one of “not guilty” the court shall proceed to hear the case…”

The procedure a subordinate court should follow after a plea of not guilty is as spelt out in s 165 of the
CPC thus:

“(1) If the accused person does not plead guilty to the charge, the court shall proceed to hear
such evidence as the prosecutor may adduce in support of the charge.

(2) The accused person or his counsel may put questions to each witness produced against him
or her.

(3) If the accused person does not employ a counsel, the court shall, at the close of the
examination of each witness for the prosecution, ask the accused whether he or she wishes to
put any questions to that witness and shall record his or her answer.”

For criminal matters before the High Court, s. 221 of the CPC provides:

“An accused person, upon being arraigned on any information, by pleading generally thereto the
plea of “not guilty” shall, without further form, be deemed to have put himself or herself upon
the country for trial.”

Where an accused arraigned before the High Court pleads not guilty to a charge, his plea is entered as
such and the Court then proceeds to try the case.68

PLEA OF AUTREFOIS ACQUIT AUTREFOIS CONVICT

This is a distinct plea provided for in s. 164 (5) (a) of the CPC for criminal matters before a subordinate
court and s. 222 of the CPC for matters before the High Court. S. 164 (5) provides thus:
67
13 WACA 66
68
S. 225 of the CPC

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 “If the accused pleads that he or she has …been previously convicted or acquitted, as the case
may be, of the same offence… the court shall try whether the plea is true in fact or not. If the
court holds that the facts alleged by the accused do not prove the plea, or it if finds that it is
false in fact, the accused shall be required to plead to the charge.”

S. 222 of the CPC provides:

“…An accused person against whom an information is filed may plead that he or she has … been
previously convicted or acquitted, as the case may be, of the same offence….If denied…to be
true in fact, the Court shall try whether the plea is true in fact or not… If the Court holds that the
facts alleged by the accused person do not prove the plea, or it finds that it is false in fact, the
accused shall be required to plead to the information.”

Thus where a plea of autrefois acquit or autrefois convict is invoked by a accused person on trial before
a subordinate court or the High Court , the court shall try the issue and if the accused does not prove the
plea69 he shall be required to plead to the charge.

The said provisions of the CPC are reinforced by s. 24 (6) of the 1997 Constitution which provides:

No person who shows that he or she has been tried by any competent court for a criminal
offence and either convicted or acquitted shall again be tried for that offence or for any other
offence of which he or she could have been convicted at the trial for that offence save upon the
order of a superior court made in the course of appeal or revision proceedings relating to the
conviction or acquittal:

Provided that nothing in any law shall be held to be inconsistent with or in contravention of this
subsection by reason only that it authorises any court to try a member of a defence force for a
criminal offence notwithstanding any trial or conviction of the member under service law; but
any court so trying such a member and convicting him or her shall, in sentencing him or her to
any punishment, take into account any punishment awarded him or her under service law.

It should be noted that for the plea autrefois acquit autrefois convict to succeed, the accused must have
been tried previously on a criminal charge. A trial for a breach of an internal regulation of an association
or body does not constitute a trial on a criminal charge. Thus in the Nigerian case of R v Jinadu70(a WACA
decision), the accused was tried by a police Orderly Room for a breach of police regulations. It was
alleged that he used unnecessary violence on persons in his custody. He was convicted and ordered to
be downgraded in rank by the Police Orderly Room. Subsequently, he was charged before a court and
convicted of offences of compelling action by assault, and assault. He raised the defence of autrefois
acquit autrefois convict. The trial court rejected his plea and he was subsequently convicted. On appeal,
it was held that the plea was rightly rejected by the trial court because the charge before the Police
Orderly room was not a criminal charge, but a breach of regulation.71

It must also be noted where an accused pleads the defence, the former trial must be before a court of
competent jurisdiction.72 Thus if the court that presided over the case lacked jurisdiction, the verdict of

69
The burden of proof here is on the accused.
70
12 WACA 368
71
Note the proviso to s. 24 (6) of the Constitution for members of a defence force tried under a service law
72
See s. 24 (6) of the Constitution

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the court cannot be pleaded in a subsequent charge for the same offence or for an offence for which the
accused could have been convicted at the first trial. In R v Hodge73, the accused was convicted of various
offences by a Magistrates’ Court. The conviction was quashed on the ground that the magistrate had no
jurisdiction to try the offences. A fresh charge was preferred against the accused. In answer to the
charge, he pleaded autrefois acquit. The court rejected the plea and stated that where a conviction is
quashed on the ground that that the court below had no jurisdiction to deal with the case, a plea of
autrefois convict will not be available to the accused.

Note further that for a plea under this head to succeed, the previous trial must have ended with an
acquittal or a conviction. Therefore, where the accused was merely discharged (as in where, for
example, the prosecution withdraws a case under s. 68 (1) of the CPC), the trial has not ended in an
acquittal or a conviction and consequently the plea of autrefois acquit or autrefois convict will not
stand.74

Note also that where an accused is acquitted and discharged on the merit, the plea of autrefois acquit
can be invoked to a subsequent action based on the same facts. Thus where an accused person is
merely discharged following the quashing of the criminal proceedings for being invalid, the plea of
autrefois acquit will not stand. In the case of Donaldson v Commissioner of Police75, the Gambia Court of
Appeal dismissed the appellant’s appeal against conviction for forgery because the plea of autrefois
acquit he raised was not sustainable in that in his previous trial on the same charge of forgery, he was
not acquitted of the offence but merely discharged, following the quashing of the committal
proceedings for being invalid.

Again, a discharge based on a no-case submission by counsel or the accused or suo motu invoked by the
court is a discharge on the merit. In the Nigerian case of Inspector General of Police v Marke76, the
accused was tried in a Magistrates’ Court for stealing. After the close of the prosecution’s case, the
magistrate ruled that a prima facie case has not been made out against the accused sufficiently to
require him to make a defence. The accused was subsequently discharged but subsequently charged
again before another magistrate with the same offence. He pleased autrefois convict which was upheld.
The court held that his discharge amounted to an acquittal. An appeal by the prosecutor was dismissed.

Note finally for such a plea to succeed, the criminal charge for which the accused was tried should be
the same as the new charge against him or alternatively the new charge should be one in respect of
which the accused could have been convicted at the former trial, although not charged with it.

If the accused is charged with the same offence at the latter trial as the former trial, this would be easy
for him to prove. However, where the subsequent charge is not identical to the earlier charge, the
accused has to prove that if he had been charged at the former trial with the subsequent offence, he
may have been convicted. The accused has to establish that some or all the ingredients of the offence

73
6 NLR 56
74
Note the provisions of ss. 64 and 68 of the CPC which clearly state that a discharge after a nolle prosequi under s,
64 or a withdrawal under s. 68 (1) does not operate as a bar to any subsequent proceedings against an accused
person on account of the same facts. This would include (as stated in s. 68 (2) of the CPC) even instances where an
accused is acquitted under s. 68 (1) (b) following an application for withdrawal after he is called upon to make his
defence or even where a subordinate courts uses its discretion to acquit under the proviso in s. 68 (1) of the CPC
75
1960-1993 GR 1
76
1957 NRNLR 97

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charged at the first trial could sustain a conviction for the subsequent charge, if he had been so charged
at the former trial. For example, if the accused is charged with the offence of assault causing actual
bodily harm and was convicted, he cannot subsequently be charged on the same facts with the offence
of assault. This is because the ingredients of the offence of assault causing bodily harm include that of
assault, and the accused could have been convicted of assault at the former trial.

In R v. Noku77 (a WACA decision), the accused was acquitted of murder because the prosecution failed to
prove that it was the wound inflicted by the accused that caused the death of the deceased. The
accused was subsequently charged with the offence of committing an act intended to cause grievous
harm. He pleaded autrefois acquit to the charge on the ground that he had been previously acquitted of
a charge of murder. The court rejected the plea holding that the accused could not have been convicted
at the former trial of the subsequent offence charged if he had been so charged.

In R v. Edu78, the court rejected the plea of autrefois acquit where the accused was acquitted of stealing
a postal packet, but was subsequently charged with negligently losing the same packet.

In Connelly v. DPP79, it was held that the acquittal of the accused on a murder charge did not debar a
subsequent trial for aggravated robbery. The House of Lords held that the appellant could not have
been convicted of robbery at his trial for murder. Thus his plea of autrefois acquit to the charge of
aggravated robbery was rejected.

PLEA OF PARDON

S. 164 (5) of the CPC provides:

“If the accused pleads that he or she has … obtained the President’s pardon for his or her
offence, the court shall try whether the plea is true in fact or not. If the court holds that the facts
alleged by the accused do not prove the plea, or it if finds that it is false in fact, the accused shall
be required to plead to the charge.”80

S. 222 of the CPC provides:

“…An accused person against whom an information is filed may plead that he or she has …
obtained the President’s pardon for his or her offence….If denied…to be true in fact, the Court
shall try whether the plea is true in fact or not… If the Court holds that the facts alleged by the
accused person do not prove the plea, or it finds that it is false in fact, the accused shall be
required to plead to the information.”81

These provisions of the CPC are reinforced by s. 24 (7) of the 1997 Constitution which provides:

“No person shall be tried for a criminal offence if he or she shows he or she has been pardoned
for that offence.”

77
6 WACA 203
78
14 WACA 163
79
(1964) 48 CR App. R 183
80
This only applies in criminal matters before a subordinate court
81
This only applies in criminal matters before the High Court

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Thus, if the accused proves to the satisfaction of the court (the burden of proving the defence is on the
accused)82 that a pardon has been granted and he or she produces the relevant instruments of pardon,
the plea must be sustained. This means the charge would have to be dismissed and the accused
acquitted. Where the plea is rejected, the accused will be asked to plead to the charge against him.

PLEA TO THE JURISDICTION OF THE COURT

The accused person may also challenge the jurisdiction of the court that is to try him. If the court rules it
has no jurisdiction, it should dismiss the charge and discharge the accused. Note the provisions of s. 62
of the CPC on transfer of cases where a court does not have jurisdiction. Note also that if an accused is
discharged because the court rules it does not have jurisdiction, he or she can be subsequently be
rearrested and arraigned before a court vested with jurisdiction.

PLEA TO DEFECT IN CHARGE

An accused person can object to the charge preferred him or her. He or she may state that the charge
contravenes any or a combination of the rules of drafting of charges. If the plea of the accused is
sustained, the accused may be discharged at that stage.83 Alternatively, the court may amend or permit
the amendment of the original charge84 and proceed with the trial, provided that proceeding with the
trial immediately after the amendment would not prejudice the accused person.

It must, however, be noted that s. 161A of the CPC provides that an objection to a charge or any formal
defect on the face thereof shall be taken immediately after the charge has been read over to the
accused and not later. This section only applies to trials before a subordinate court. S. 217 of CPC has a
similar provision for criminal trials before the High Court.

THE COURSE OF THE TRIAL

After the accused pleads not guilty to the charge or charges preferred against him, issues are
joined between the accused and the prosecution. The prosecution must adduce sufficient
evidence to prove the guilt of the accused beyond reasonable doubt.

INTERPRETER

The language of a Magistrates’ Court or the High Court when presiding over a criminal case shall be
English.85 Where the accused does not understand English he or she must be provided with an
interpreter at the expense of the state. S. 24 (3) (b) the 1997 Constitution provides that every person

82
See ss. 164 (5) and 222 of the CPC
83
Note s. 69 (2) of the CPC which provides that “The validity of proceedings instituted or purported to be instituted
in pursuance of subsection 1 of this section shall not be affected by any defect in the charge or complaint or by the
fact that a summons or warrant was issued without any complaint or charge or, in the case of a warrant, without a
complaint on oath.”
84
Note s. 169 on amendment of charges for trials before a subordinate court and s. 218 of the CPC on amendment
of information for trials before the High Court
85
S. 46 of the Courts Act

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who is charged with a criminal offence shall be informed at the time he or she is charged, in a language
which he or she understands and in detail, of the nature of the offence charged. S. 24 (3) (f) further
provides that every person charged with a criminal offence “shall be permitted to have without payment
the assistance of an interpreter if he or she cannot understand the language used at the trial of the
charge…”

The interpreter must correctly interpret to the accused person anything said in a language that he does
not understand. Simultaneously, there should be adequate interpretation to the court of anything said
by the accused. It is punishable for a court interpreter to willfully make false statements during in any
judicial proceedings.86 Since the charge is written in English, it has to be read in English and if the
accused does not understand English, it must be interpreted to the accused in a language he
understands. If the court interpreter or any officer of the court does not understand the accused’s
language, then the proceedings should be adjourned until an interpreter is provided to interpret the
charge and the proceedings to the accused. Note that even though the court interpreter or court clerk
may assist in ascertaining whether the accused understands the language of the court, it is the primary
responsibility of the accused or his counsel to bring to the notice of the court that the accused does not
understand the language of the court. If the trial court is not informed by the accused or counsel or his
counsel, the accused is estopped from complaining about having been denied the right to an
interpreter.87

In Ajayi v. Zaria Native Authority88, the appellant’s counsel argued that the appellants were denied a fair
trial because the proceedings of the court, which were conducted in Hausa, were not properly
interpreted to the appellants. The appellants spoke and understood English and Yoruba, and not Hausa,
the language of the court. At various stages of the proceedings, 5 interpreters were engaged. There was
evidence that the interpreters were incompetent, and in at least instances, misinterpreted the
proceedings. The Federal Supreme Court of Nigeria allowed the appeal on the ground that the
appellants did not have a fair trial because the proceedings of the court were inadequately and
incorrectly interpreted to them.

In The State v. Boka89, the respondent was acquitted of culpable homicide not punishable with death
(manslaughter). The State appealed against the acquittal. In allowing the appeal, the Nigerian Court of
Appeal held inter alia that failure of the trial judge to record the language in which the charge was read
and to certify that the proceedings were interpreted to the respondent were a violation of the 1979
Constitution of Nigeria.

Compare the above cases with the case of The State v. Gwonto (supra). In this case, the accused persons
were charged and convicted before the Jos High Court. On appeal to the Nigerian Court of Appeal, their
appeal was allowed because of the failure to interpret proceedings in Hausa for the benefit of the
appellants. When the State further appealed to the Supreme Court, it was held that the evidence on the
record showed that the respondents understood English, the language of the court. It was further held
that at any rate, neither the respondents nor counsel informed the trial court that they did not
understand the language of the court. If was held that the absence of notice to the court by the accused
persons or their counsel of their inability to understand the language of the court, the accused persons

86
See s. 96 of the Criminal Code
87
See the Nigerian case of State v. Gwonto [1983] 1 SNCLR 142
88
1964 NNLR 61
89
1982 (1) NCR 85, especially at 85-96

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were estopped from relying on the failure of the court to provide them with an interpreted as a denial
of fair trial to them. Nnamani JSC observed at page 148 of the judgment that:
Perhaps emphasis ought to be placed on the words if he cannot understand the language used
at the trial of the offence. The right to an interpreter only arises in such circumstances. This is
why it is the duty of the accused person, or counsel acting on his behalf, to bring to the notice of
the court the fact that he does not understand the language in which the trial is being
conducted. Unless he does, it will be assumed that he has no cause for complaint and the
question of violation of his right to an interpreter will not arise.

WITNESSES

S. 24 (3) (e) of the 1997 Constitution provides that every person who is charged with a criminal
Offence shall be afforded facilities to examine in person or by his or her legal representative the
witnesses called by the prosecution before the court and to obtain the attendance and carry
out the examination of witnesses to testify on his or her behalf before the court on the same
conditions as those applying to witnesses called by the prosecution. Thus after a plea of not
guilty, the case against the accused open’s with the prosecution calling its witnesses. The
attendance of witnesses in court could be secured through a subpoena issued by the court at
the instance of the party wishing to call that witness.

The penalty for non-attendance of a witness is a fine not exceeding D200. The fine is levied by
attachment and sale of any property belonging to the witness and found within the local limits
of the court’s jurisdiction. Where the fine cannot be recovered by attachment and sale, the
witness may be imprisoned for 15 days, unless the fine is paid before the expiry of the 15 days.
The High Court is also empowered to remit or reduce any fine a subordinate court imposes on a
witness.90
If, without sufficient cause, a witness does not obey a witness summons, the court may issue a warrant
for him to be arrested and brought before it on proof of proper service of the summons.91 Where a
court is informed on oath that a person might give material evidence in a case and will not attend unless
he is compelled to do so, the court may at once issue a warrant for the arrest and production of the
witness before it at a time and place to be named in the warrant.92 Where a witness is arrested under a
warrant, the court may release him after he furnishes security, with or without sureties. If such security
is furnished, the court then orders the witnesses release from custody but where security is not
furnished, the court orders for his detention for production at the hearing.93

Where the witness to be examined is a prisoner, a court presiding over a case may issue an order to the
officer in charge of the prison requiring him or her to bring the prisoner before the said court for
examination at a time to be named in the order.94 The officer in charge of such a prison as aforesaid

90
S. 122 of the CPC
91
S. 118 of the CPC
92
S. 119 of the CPC
93
S. 120 of the CPC
94
S. 121 (1) of the CPC

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shall, on receipt of the court order, act in accordance therewith and shall provide for the safe custody of
the prisoner during his absence from the prison for the purpose of being examined by the court.95

At the commencement of a trial, witnesses are ordered out of court and out of hearing by the court
officials. This is to ensure that evidence of one witness does not influence the evidence of another
witness. The law permits the parties to the case to remain in court, even though they intend to give
evidence for themselves as witnesses.96

Where a witness remains in court after being ordered to leave or where a witness remains in court
because the court or the prosecution or the defence forgot to tell the witness to leave before his
evidence is taken in court, the refusal of a witness to comply with the court order to be out of court and
out of hearing does not render the evidence of the witness inadmissible by the court. The presence of
the witness in court would merely go to the weight to be attached to his evidence by the trial court.97

PRESENTATION OF CASE FOR PROSECUTION

If the accused person pleads not guilty to the charge, the court shall then proceed to hear the evidence
adduced by the prosecution.98

By virtue of s. 168 (1) of the CPC the prosecutor and the accused are entitled to address the court at the
commencement of their respective cases.99In spite of this legal provision, in practice prosecutors in this
country hardly open their cases by making an opening address.

The prosecution then calls witnesses to prove its case. Witnesses in a criminal case “shall be examined
upon oath100 and the court before which any witness appears shall have full power and authority to
administer the usual oath.”101 Where a witness objects to being sworn in and states the grounds for such
objection to be either that he or she has no religious belief or that the taking of an oath is contrary to his
religious beliefs, he shall be allowed to testify on affirmation instead of taking an oath. The affirmation is
as good as an oath.102

Thus evidence has to be given on oath unless the court believes a witness does not hold any religious
belief or that oath taking is against a witness’s religious belief. In these two instances, the witness will be
allowed to affirm before giving his evidence. A witness must therefore take an oath before giving
evidence unless the witness falls under either of the following situations:

95
S. 121 (2) of the CPC
96
See s. 190 of the Evidence Act
97
See Uwaezuoke v Amosu 19 NLR 57. See also the Nigerian case of Falaju v Amosu [1983] SCNLR 209
98
Ss. 165 (1) and 225 of the CPC
99
S. 233 merely requires the prosecution to open the case against the accused after he pleads not guilty. Does this
include making an opening address? S. 189 (1) of the Nigerian CPC provides for making an opening address thus:
“After a plea of not guilty has been taken or no plea has been made the prosecutor may open the case against the
accused person stating shortly by what evidence he expects to prove the guilt of the accused.
100
The form and manner in which an oath or affirmation may be taken is outlined in s. 186 of the Evidence Act.
101
S. 124 (1) of the CPC
102
S. 124 (2) of the CPC. It is clear from this provision that the failure to take an oath can only be based on two
grounds stated in s. 124 (2) (that one has no religious belief or that it is contrary to one’s religious beliefs to take
an oath). See also ss. 182 – 184 of the Evidence Act

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 a. Witness of tender years
s. 124 (3) of the CPC provides:
Where, in any proceedings a child of tender years called as a witness does not, in the opinion of
the court, understand the nature of the oath, his or her evidence may be received, though not
given upon, if, in the opinion of the court, he or she is possessed of sufficient intelligence to
justify the reception of the evidence, and understands the duty of speaking the truth.103
Note that a conviction cannot be based on the sole evidence of a child pursuant to s. 124 (3) of the CPC.
Such evidence must be corroborated by some other material evidence in support thereof.

b. Witness is a non-believer or his religions forbids the taking of an oath104

Note that the fact that evidence received was not given on oath and the reasons therefore has to be
recorded105 Note also that where a witness offers to give evidence on oath or affirmation in any form
common amongst, or held binding by, persons of the race or persuasion to which he or she belongs, and
not repugnant to justice or decency, and not purporting to affect a third person, the court may, if it
thinks fit, tender such oath or affirmation to him.106

EXAMINATION OF PROSECUTION WITNESSES

After an oath or an affirmation is administered, prosecution witnesses must be examined-in- chief by
the prosecutor, then if the defence so wishes, he shall be cross-examined107. The prosecuting counsel
may then be re-examined by the prosecutor if he so wishes.108In Police v. Nwabueze109, the case was
sent back to the lower court for trial because in acquitting the accused, the trial magistrate did not allow
the prosecuting counsel to re-examine the second prosecution witness.

ORDER OF WITNESSES
The order in which witnesses are produced and examined shall be regulated by the law and practice for
the time being relating to criminal procedure and in the absence of such law, by the discretion of the
court.110

There are no statutory provisions regulating the order in which witnesses should be called. Since the
conduct of a criminal case is the duty of a prosecutor, it is his responsibility to decide in what order
witnesses should be called. In practice, the prosecutor adopts a logical order so that his case would
unfold easily before the court. Normally, when the complainant is available, the prosecutor calls the
complainant as the first prosecution but there’s a no law requiring the prosecutor to call the
complainant first. In homicide cases it is advisable for the prosecutor to call eye witnesses to testify first

103
See also s. 185 of the Evidence Act
104
See s. 124 (2) of the CPC. See also s. 184 (1) and (2) of the Evidence Act
105
See s. 184 (3) of the Evidence Act
106
S. 124 (4) of the CPC
107
The Gambia Court of Appeal noted in Ousainou Jawo & ors v. The State (op cit by Jallow at page 171 that
“Although counsel must not be deterred from doing their duty, counsel for the defence should exercise a proper
discretion not to prolong the case unnecessarily. It is no part of his duty to embark on lengthy cross-examination
on matters which are not really in issue.”
108
See s. 192 (1) of the Evidence Act
109
[1963] 2 All NLR 119
110
S. 188 of the Evidence Act

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before calling other witnesses. The prosecutor should therefore call his witnesses in an order which will
ensure that the evidence adduced is sequential.

NUMBER OF WITNESSES

Before the accused is convicted, the court must make sure that the prosecutor calls material
witnesses to prove its case, whether their evidence will favour the prosecution’s case or not.111
If a court is satisfied that any person is likely to give material evidence for the prosecution or
defence, it may issue a witness summons for such a person.112

Note that what the law requires from the prosecutor is for him to call sufficient witnesses, not
all material witnesses.113 Where the prosecution fails to call sufficient witnesses to establish the
case against the accused, the accused should be discharged and acquitted. In Momodou
Mbenga v. The State (supra), the appellant was convicted for unlawful possession of drugs. The
prosecution’s case was that the drugs had been discovered when a search squad raided the
appellant’s home. The drugs were said to have been discovered by a particular police officer
who was not called as a witness. At the trial and on appeal the accused denied the charged and
maintained the police officer who allegedly caught him should have been called as a witness.
The appeal was allowed and the Court of Appeal held the case against the accused was not
proved beyond reasonable doubt because the accused was denied the opportunity to cross-
examine a key witness.114

Thus if there is a vital point in issue and there is one witness whose evidence will settle it one
way of the other, that witnesses out to be called by the prosecution. This however does not
mean that a host of witnesses must be called upon the same point.115 A court should therefore
always bear in mind that the number of witnesses called by the prosecutor is within his
discretion because there is no stipulated number of witnesses required to be called to prove
the accused’s guilt.116

There are however instances in which a conviction cannot be based on the evidence of one
witness. At least two witnesses are required in order to secure the accused person’s guilt in the
following instances:

111
See Marena v. State (infra), Ebrima Bajinka & anor v. The State GCA CRIM APPs 425/92 and Momodou Mbenga
v The State GCA CRIM APP NO. 11/92 (referred to in The Law of Evidence in The Gambia by Hassan Jallow, First
Edition at pages 165 - 167)
112
S. 117 of the CPC
113
See Omar Sey v. The State (Criminal Appeal No. 11/93, ibid at page 167. See also the Nigerian case of Ali & anor
v. The State (1988) 1 SCNJ 17 and Opayemi v. The State (1985) 6 SC 347
114
See Marena v. The State 1960-1993 GR 96. See also R. v. Kuree (1941) 7 WACA 175, R v. Essien (1938) 4 WACA
112 at 113, Addae v. Commissioner of Police 11 WACA42, R v. Ansere (1958) 2 WALLR 285, WACA, Twumasi Ankrah
v. R (1955) 14 waca 673 and Yeboah v. R (1954) 14 WACA 484 – all cited in Marena’s case
115
See Mballow v. The State 1960-1993 GR 436
116
Onafowokan v The State (1987) 7 SCNJ 233

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 a. Cases of rape and other sexual offences against complainants.117
b. Cases of perjury.118
c. Cases of exceeding speed limit under the Motor Traffic Act.119
d. Cases of sedition120
e. Cases treason, concealment of treason and spying.121

It is also provided for in the Evidence Act and the CPC that an accused cannot be convicted on
the unsworn evidence of a child, without the independent evidence of another witness. 122
Note that in a trial on information before the High Court, the prosecutor does not have to call
all the witnesses whose names are listed on the back on the information. All the prosecution
needs to do is to call enough material witnesses in order to establish its case. 123

Note, however, that if a witness has some important evidence to give which could have tilted
the case on way or the other to the benefit or detriment of the accused, then if the prosecution
does not call that witness it has the duty to make him available to the accused for the purposes
of cross-examination. In the case of Omar Sey v The State (supra) the Gambia Court of Appeal
held that the prosecution had discharged its duty by providing the name and regular address of
a witness. The Court stated:
“Making a witness available does not mean that the prosecution, not needing a witness
should bring or subpoena him to court and hand him over to the accused. All the
prosecution can do and should do is to tell accurately where to find the witness, his
name and any special characteristics of the witness for identifying him if he has any.”124

Note further while there is a duty to call relevant witnesses, the court is also required,
especially in criminal cases, to afford the parties a reasonable chance of calling their witnesses.
In the case of Ebrima Sanusi v. C.O.P125, the Gambia Court of Appeal allowed the appellants
appeal and quashed his conviction because of the refusal of the trial magistrate to grant the
appellant an opportunity of calling witnesses in his defence amounted to a denial of justice.

Note also that the court may comment on the absence of the evidence given which might have
been given, including the failure of the prisoner to exercise his right to give evidence – if in the
discretion of the court such comment appears to be fair and just. 126

117
S. 180 (2) (a) of the Evidence Act
118
S. 180 (2) (d) of the Evidence Act
119
S. 180 (2) (e) of the Evidence Act
120
S. 54 of the Criminal Code
121
S. 38 of the Criminal Code
122
See s. 185 of the Evidence Act and s. 124 (3) of the CPC (supra)
123
See the Nigerian case of Adaje v. The State (1979) 6-9 SC 18 and the English case of Adel Muhammed El Dabbah
v. A.G. for Palestine [1944] AC 156
124
See Law of Evidence in The Gambia by Hassan Jallow (First Edition) at page 167
125
(1961) 3 All ER 457, cited in Hassan Jallow book (ibid) at page 167-168
126 th
See Archbold, 35 Edition, paragraph 584

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Note further that in criminal cases, the court can suo motu call or recall witnesses127 because s.
123 of the CPC provides that:
“A court may at any stage of any inquiry, trial or other proceeding under this Code call
any person as a witness or recall or re-examine any person already examined, and the
court shall examine or recall and re-examine such person if his or her evidence appears
to be essential to the just decision of the case.”128

Note finally that by virtue of s. 225 of the Evidence Act, the court may put questions to
witnesses or order the production of a document. The power to call or recall witnesses and the
power to put questions to witnesses or order the production of a document does not, however,
mean the court should take over the conduct of a case. The accused is presumed innocent until
proven guilty and since the prosecution, not the court, is required to prove the accused’s guilt
beyond reasonable doubt, the court should always act as an impartial adjudicator or umpire. It
should never descend to the arena of conflict.

REFACTORY WITNESSES

s. 125 (1) of the CPC provides:

“When a person, appearing either in obedience to a summons or by virtue of a warrant, or being

present in court and being verbally required by the court to give evidence –
(a) refuses to be sworn or affirmed;
(b) having been sworn or affirmed, refuses to answer a question put to him or her;
(c) refuses or neglects to produce a document or thing which he or she is required to produce;
or
(d) when lawfully required to do so refuses to sign his or her deposition, without in any such
case offering any lawful or reasonably sufficient excuse for the refusal or neglect, the court
may adjourn the case for any period not exceeding eight days , and may in the meantime
commit the person to prison, unless he or she sooner consents to do what is required of him
or her.”
If such a person after being brought before the court at or before the adjourned hearing, again refuses
to do what s required of him or her, the court may, if it thinks fit, again adjourn the case and commit
him or her for the like period, and so again from time to time until the person consents to do what is so
required of him or her.129 Nothing contained in s. 125 of the CPC, however, affects the liability of the

127
See the Nigerian case of Police v. Olatilewa [1958] WRNLR 200 on the power of a court to recall witnesses. It
was held that his power was properly invoked by a magistrate because the witness was recalled in the interest of
justice and fairness in order to provide an omission on the record which was the failure to record the distance
travelled by the accused after a road accident. Compare with Onuoha v. The State (19890 2 NWLR (Pt. 101) 23
where a judge recalled 2 witnesses after the close of the case for the prosecution and the defence and asked them
a total of 13 questions. It was held that that amounted to an abuse of the court’s powers. See also Okorie v. The
Police 1966 LLR 134, where a magistrate recalled a witness to tender a statement made by another person who
was not present in court. It was held on appeal that the magistrate did not properly exercise his discretion.
128
This seems to give statutory support to a common law principle restated in R. v. Kuree (supra) that “The trial
judge also has a discretion himself to call a witness in the interest of justice and we conceive it to be his duty to
exercise this discretion when by so doing the real truth can be ascertained.”
129
S. 125 (2) of the CPC

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person to any other punishment or proceeding for refusing or neglecting to do what is so required of
him or her, or shall prevent the court from disposing of the case in the meantime according to any other
sufficient evidence taken before it.130

ADJOURNMENTS

The granting of an adjournment is discretionary and would depend on the circumstances. A criminal
cause before a court may be adjourned for several reasons. Firstly, the court dealing with a criminal case
may not sit on the day the matter comes up. In that case the matter would automatically have to be
adjourned and a new date taken. Alternatively, the court may sit but decides to adjourn a matter for
compelling reasons.

Secondly, the prosecution may apply for an adjournment because the prosecution witnesses are not
available in court to enable the prosecutor to proceed with his case. In that case an adjournment is
granted to enable to witnesses to appear and testify so that the case will be determine on the merits.
Where there is evidence that the witnesses might not be available, the court may decide not to adjourn
a matter. In that case, if may discharge the accused. It should also be noted that where a prosecutor
who has notice of the hearing fails to appear, the court can either adjourn the case or discharge the
accused, s. 160 CPC.131

Thirdly, the defence may apply for an adjournment in order to call defence witnesses. The court will
grant an adjournment for the defence to call its witnesses132, especially if the witness sought to be
produced by the defence is a material one. However, where the defence is guilty of negligence or laches
in procuring the witness, and if there is a reasonable expectation that the witness would not be
produced on the next adjourned date, then the court may deny an application for adjournment. In the
Nigerian case of Yanor v. The State133, the accused was charged and convicted on murder. During the
trial, several adjournments were granted at the request of the defence. This was to enable counsel to
secure the attendance of a material witness for the defence. At the resumed resuming, the defence
again applied for a further adjournment of the trial but the application was rejected. The proceedings
then continued and the accused was convicted. On appeal it was argued that the failure of the court to
grant the accused an adjournment was a denial of a fair trial to the accused. The Nigerian Supreme
Court that the trial court properly exercised its discretion by refusing to further adjourn the matter. The
defence was granted several previous adjournments but the witnesses were never produced and there
was no likelihood of the witnesses being produced at all. The appeal was therefore dismissed because
the court held that a further adjournment of the case would have delayed the dispensation of justice.

It should be noted that that where an accused person fails to appear, the court can proceed in his
absence as if he were present, provided he is not charged with a felony, s. 163 CPC.134

The CPC, however, seems to be silent on the non-appearance of a defence counsel. Non-appearance of
defence counsel can cause delay. What happens if a defence counsel deliberately fails to attend court to

130
S. 125 (3) of the CPC
131
Note that this provision only applies to criminal proceedings before a subordinate court.
132
See the Case of Sanusa v. Commissioner of Police 1960-1993 GR 42 where the Gambia Court of Appeal held that
denying the accused the opportunity to call witnesses in his defence amounted to a denial of justice.
133
[1965] 1 All NLR 193
134
Note that this provision only applies to criminal proceedings before a subordinate court.

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defend an accused person he is meant to represent? Like I said the CPC is silent on the issue. The
Nigerian case of Shemfe v C.O.P135, even though merely persuasive, is helpful in this regard. In this case,
counsel of the accused sent a telegram to the court seeking an adjournment of this matter. No reason
was given by counsel in the telegram as to the necessity for an adjournment and his failure to appear in
court. The prosecutor opposed the application for an adjournment on the ground that several
adjournments have been granted in the past and that the prosecution witnesses were present in court
to testify. The court refused the application and proceeded with the case. The accused conducted his
defence and was convicted. On appeal against conviction it was contended that the appellant was
denied a fair trial, because of the refusal of the trial court to grant an adjournment to enable counsel to
appear for the accused. The court dismissed the appeal. It held that the appellant had a fair trial and
that the failure of the appellant to be represented by counsel was not the fault of the court but that of
the defence counsel.

It must be noted, however that, if counsel is unavoidably absent from court for cogent and compelling
reasons, the court should grant an adjournment to enable counsel to attend court.136

When deciding on an adjournment, the mandatory provisions of s. 162 CPC137 should always be borne in
mind. This section provides that criminal cases shall not be adjourned beyond 15 days or if the accused
is committed to prison, for not more than 7 days. Note that for criminal matters before the High Court,
no such time limit is provided for. Adjournments of criminal matters before the High Court are governed
by s. 226 of the CPC which provides:

“If, from the absence of witnesses or any other reasonable cause to be recorded in the
proceedings, the Court considers it necessary or advisable to postpone the commencement of
or to adjourn any trial, the Court may from time to time postpone or adjourn the same on such
terms as it thinks fit for such time as it considers reasonable, and may by warrant remand the
accused person to some prison or other place of security.”

A SUBMISSION OF NO CASE TO ANSWER

At the end of the case for the prosecution, before the accused is called upon by the court to enter his
evidence, the court shall acquit the accused if it appears to the court that a case is not made out against
an accused person sufficiently to require him to make a defence, s.166 CPC.138 It appears from the
wordings of this section that only the court can rule that an accused has no case to answer. Nothing in
this section shows that counsel for the accused or the accused’s counsel can make such a submission. It
is submitted that this section should be amended to reflect the current practice whereby counsel rely on
the section as authority to make a no-case submission.

The CPC does not outline the conditions to be fulfilled where a no-case submission is made before a
court presiding a criminal case or the conditions the court should looks where it suo motu decides the

135
1962 NNLR 87
136
See Gopka v IGP [1961] 1 All NLR 423
137
Note that this provision only applies to criminal proceedings before a subordinate court.
138
This section only applies to proceedings before a subordinate court. The CPC does not provide for no case
submissions before the High Court. Do we call a no case submission a common law principle meaning it could be
invoked before the High Court by virtue of s. 7 of the 1997 Constitution and s. 4 of the Law of England Application
Act and s. 3 (3) of the CPC?

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accused does not have a case to answer. Our courts normally resort to English practice governing a
submission of no case to practice contained in the Practice Note issued by the Queen’s Bench Division of
the High Court in England139 thus:

“A submission that there is no case to answer may be properly made and upheld: (a) where
there has been no evidence to prove pan essential element in the alleged offence; (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. Apart from
these two situations a tribunal should not in general be called on to reach a decision as to
conviction or acquittal until the whole of the evidence which either side wishes to tender has
been placed before it. If, however, a submission is made that there is no case to answer, the
decision should depend not so much on whether the adjudicating tribunal (if compelled to do
so) would at that stage convict or acquit but no whether the evidence is such that a reasonable
tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before
it, there is a case to answer.”

Thus, a submission that there is no case to answer may properly be made and upheld only:

1. When there has been no evidence to prove an essential ingredient of the offence charged.

This does not mean the defence counsel should contradict the evidence adduced by the prosecution or
the credibility of the prosecution witnesses.140 All that the defence is supposed to show at this stage is
that the evidence adduced by the prosecution witnesses did to establish the actus reus or mens rea for
the offence charged. A good example is where in a murder charge the death of the victim could not be
established.

2. When the evidence adduced by the prosecution has been discredited as a result of cross-
examination or is so manifestly unreliable that no reasonable tribunal could convict upon it.141

Under this head, counsel is challenging the veracity of the witnesses.142 He is arguing that the totality of
the evidence adduced by the prosecution has been effectively and thoroughly discredited by cross-
examination that no reasonable tribunal can safely convict on it. According to Doherty in her book
Criminal Procedure in Nigeria Law and Practice the second limb is more difficult to establish to the
satisfaction of the court in that at the time a no-case submission is made, only the evidence of the
prosecution has been heard. Until the evidence of the defence is heard, she continued the court cannot
be called upon to acquit or convict. She rightly stated that for a submission of no case to answer to the
upheld under the second limb, there must be clear and compelling evidence to that effect. “Anything
short of this would be unacceptable to the trial court because at that stage, the evidence of the other
side is yet to be heard.”

A no-case submission should therefore only be upheld in the two situations above143. There is a
tendency in this country for a defence counsel to argue, in making a no-case submission, that the

139
See Practice Note contained in [1962] 1 All ER 448; [1962] 1 WLR 227
140
See R. v Coker 20 NLR 62
141
Practice Direction issued by the Queen’s Bench Division, *1962+ 1 W.L.R. 227.
142
Per Oputa JSC in Atano and anor v. Attorney Genral Bendel State [1988] 2 NWLR (pt. 75) 201 at 231.
143
See the Nigerian case of Ibeziako v Commissioner of Police [1963] 1 ALL NLR 61 at 68-69

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prosecution has not proved its case beyond reasonable doubt. What is in issue at this stage is whether
the prosecution has made out a prima facie case to require the accused to enter into his defence, not
whether a case is proved beyond reasonable doubt. As Hubbard J144observed:

“The meaning of a submission that there is no case for an accused to answer is that there is no
evidence on which, even if the court believed it, it could convict. The question whether or not
the court does not believe the evidence does not arise, nor the credibility for the witnesses in
issue, at this stage.

It is not proper for counsel at this stage to address the court on the weight of evidence. The
submission should be limited to a statement that on one or more of the essential elements of
the offence charged there is no evidence on which, if the court believed it, it could convict.”145

In Ceesay v. Commissioner of Police146 the Gambia Court of Appeal held:

“As it is said, the significant feature of the submission of “no case” is that it enables the
defendant to defeat a prosecution when the Crown is relying in important measure on
admissions that may be extracted from the defence. Not only does a successful application
protect the defendant from going into the witness box where he might be compelled to make
admissions, but it also prevents the prosecution from making good deficiencies on its own
evidence by cross-examining the other witnesses for the defence. As Abbott CJ puts it: “No
person is to be required to explain or contradict until enough has been prove (sic) to warrant a
reasonable and just conclusion against him in the absence of explanation or contradiction”.…
The submission can only be justified if the case for the prosecution has obviously collapsed
when it would be a waste of time of the court to hear it further. For a criminal court has the
right to decide that the prosecution is so obviously mistakenly that it should not be proceeded
with if only to save time and further expense. The second aspect of this rule is that it is a
powerful reinforcement of the right of the defendant to silence conferred upon him by law. The
evidence may involve him in great suspicion and it may be likely that if only he could be got into
the witness box the case be established against him.”

RULING ON A NO CASE SUBMISSION

At the close of the prosecution’s case, the court may suo motu rule that the accused has no case to
answer. Counsel for the accused may also submit before the court that the accused has no case to
answer, as we have already noted above. Where counsel makes such a submission, the court has to
deliver a ruling upholding or rejecting counsel’s submission. If the court is convinced that one of the
conditions stated above in the Practice Note has been established by the defence counsel, it should
uphold the defence counsel’s submission. The court’s ruling must be detailed and should contain

144
Regina v Coker& Others (1952) 20 N.L.R 62 AT 63
145
See PRESIDING OVER NARCOTICS CASES, a paper presented by Gaye Sowe, at the Training Workshop on
rd th
Narcotics Drug Offences at the Corinthia Atlantic Hotel, Banjul on Wednesday & Thursday 23 and 24 March
2005 at pages 13 to 14
146
1960-1993 GR 110 at 117-118

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reasons for the court’s decision. This is because a ruling upholding a no case submission is a final
judgment of the court on the matter and may be subject to an appeal.147

Where a no-case submission is made by the defence counsel and rejected by the court, the ruling of the
court must be brief and confined to the submission may by counsel. If the defence counsel’s submission
is based on the insufficiency of the evidence adduced by the prosecution, the court should confine its
ruling to that submission. It should not consider matters that have no connection with the submission
made to it. If the counsel’s submission is based on the veracity of witnesses, the court’s ruling should be
confined to that submission. The court should confine its ruling on the submissions made to it in order
not to fetter its discretion in the matter, which is yet to be adjudicated upon after hearing the defence.

In Ekanem v. R148, the accused was charged with murder. At the end of the prosecution’s case, defence
counsel made a no-case submission. Counsel’s submission was rejected by the trial court. In its ruling,
the court stated that the prosecution had proved the guilt of the accused beyond all reasonable doubt.
The accused was convicted. On appeal against conviction, on the propriety of the ruling delivered by the
court, the appellate court held that where a no-case submission has been rejected, the ruling of the trial
court should be confined to the submission made to it.

In Odofin Bello v. The State149, at the trial of the accused, defence counsel made a no-case submission.
The submission was overruled, and the trial court gave a ruling on inordinate length. The accused was
subsequently convicted. Ademola J (former Chief Justice of Nigeria) had this to say on the ruling:
Whilst it is not the aim of this court to discourage a Judge from discussing matters of interest in
his judgment, we would like to warn against any ruling of inordinate length in a submission of no
case to answer, … as was done in this case, which at the end of the case might fetter the Judge’s
discretion. …It is wiser to be brief and make no observation on the facts.

Where a no-case submission is overruled and a lengthy ruling is delivered, the ruling may or may not,
depending on the facts of each case, fetter the judge’s discretion. Where the court’s discretion is said to
be fettered as a result of a lengthy ruling, the accused may be held to have been denied a fair trial.
Where the lengthy ruling does not fetter the court’s discretion, the trial will not be invalidated because
of the length of the ruling.

In Atano & Anor v. Attorney General of Bendel State150, the accused persons were charged with various
offences. At the close of the prosecution’s case, the defence counsel made a no-case submission on
behalf accused persons. The trial judge rejected the no-case submission and gave a lengthy ruling
running into 15 pages. In the ruling the court gave reasons backed by authorities for rejecting each of
the grounds relied upon by counsel in his submission. The court stated in the ruling that it was aware
that it had not reached the end of the proceedings. At the conclusion of the trial the accused persons
were convicted. On appeal against conviction, it was argued that the accused persons did not have a fair
trial because of the lengthy ruling delivered by the trial court in overruling the no-case submission.

147
See the Nigerian cases of Ajidagba & Ors v. Inspector General of Police 3 FSC 5 and Commissioner of Police v. Agi
1980 (1) NCR 234
148
13 WACA 108
149
(1967) NMLR 1
150
[1988] 2 NWLR (Pt. 75) 201

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The appellate court held that a lengthy ruling on a no-case submission will bot by itself constitute a
denial of fair trial to the accused which would vitiate the trial. It held that for the trial to be vitiated, the
discretion of the court must have been fettered as a result of the lengthy ruling. In the instant case, even
though the court delivered a lengthy ruling, it realized that the proceedings were not at an end, and that
the other party was yet to be heard. The appeal was therefore dismissed.

In Atano’s case (supra), Justice Oputa of the Supreme Court of Nigeria stated that the ruling of a court
overruling a no-case submission should be contained in a single sentence thus: ‘I overrule the
submission and will give my reasons in my judgment.’

Doherty rightly submits in her book151 that:

Although it is trite law that the ruling of the court overruling a no-case submission should be
brief, it is submitted that it should not be so terse as to be stated in a single sentence, without
stating the reasons for the ruling immediately. In effect such a ruling should be tantamount to
not ruling on the no-case submission, deferring the ruling until judgment is to be delivered,
because a ruling is an interlocutory judgment. The court would not be discharging its
responsibility by delivering a terse sentence without stating briefly its reasons for so doing
immediately in the ruling. For example, by stating that the evidence adduced by the prosecution
has established the ingredients of the offence or that the evidence of the prosecution witnesses
has not been thoroughly discredited by cross-examination. Therefore it is submitted that the
proper course for the courts to adopt is to avoid the two extremes of an inordinately lengthy
ruling and a terse ruling in delivering a ruling rejecting a submission by counsel of no case to
answer. The courts should steer a middle course by merely addressing the points – insufficiency
of evidence or veracity of witnesses – raised in the no-case submission by counsel.

EFFECT OF A DISCHARGE AFTER A RULING OF A NO-CASE TO ANSWER

This is made clear in s. 166 of the CPC which provides thus:

If at the close of the evidence in support of the charge, it appears to the court that a case is not
made out against the accused person sufficiently to require him or her to make a defence, the
court shall, as to that particular charge, acquit him or her.
Thus once a court rules that an accused person does not have a case to answer, then the court would
have no option but to acquit him or her. Thus a plea of autre fois acquit would be sustained where an
accused is discharge following a ruling on a no-case submission.152

EFFECT OF SUBSEQUENT EVIDENCE AFTER A RULING IS DELIVERED BY THE COURT

The effect of subsequent evidence adduced, incriminating the accused after a ruling by the court, would
depend upon whether the ruling of the trial court is affirmed or reversed by the appellate court. Thus
the appeal court decides whether the decision of the trial court as to whether the accused had a case to
answer or not is right or wrong. The effect of subsequent evidence adduced after a ruling is delivered
can be stated thus:

151 nd
Criminal Procedure in Nigeria Law and Practice 2 Edition at page 273
152152
See notes on Plea of autrefois acquit autrefois convict. See also Nwali v. Inspector General of Police (1956) 1
ERNLR 1 and Inspector General of Police v. Marke 2 FSC 5

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1. Where the appeal court holds that the accused had no case to answer at the trial, the trial court was
duty bound to acquit him, even if the defence counsel did not make a no-case submission before the
trial court. If an accused person is not acquitted at this stage, and subsequent incriminating evidence are
adduced against him and he is subsequently convicted, on appeal, the conviction would be set aside,
because failure to acquit him at the end of the prosecution’s case is tantamount to asking him to prove
his innocence which is contrary to s. 24 (3) (a) of the 1997 Constitution.

In Daboh & Anor v. The State153, Udo Udoma, referring to the case of Mumuni and 13 ors v. The State
154
restated thus:
…where there is absolutely no evidence against the prisoner at the end of the prosecution’s
case, the court is under a legal obligation to discharge him at that stage, for to do otherwise
would be tantamount to placing upon the prisoner the onus of establishing his innocence.
In Okoro v. The State155, seven persons were charged with murder. The trial court suo motu discharged
and acquitted the third accused person at the end of the prosecution’s case on the ground that she had
no case to answer. The other accused persons were called on to make their defence. At the conclusion
of the trial, all the other accused persons except the first, were found not guilty and acquitted. The first
accused was found guilty and sentenced to death. On appeal against conviction, the Nigerian Supreme
Court held that there was no case against the any of the accused persons at the end of the prosecution’s
case because none of the accused persons was identified as one of the assailants of the deceased. Thus
to require the first accused to enter into his defence is the circumstances, when there was no case
established against him, was to require him to prove his innocence, thus shifting the onus of proof from
the prosecution to the accused which is contrary to the principle of presumption of innocence.

2. Where it is held by the appellate court that a no-case submission made by counsel was wrongly
rejected by the trial court, any subsequent incriminating evidence adduced against him will not
jeopardize him. Any subsequent conviction based on the subsequent incriminating evidence would be
set aside on appeal. It is immaterial whether the accused took further part in the proceedings after the
no-case submission was wrongly overruled. In other words, whether he took further part in the
proceedings or he withdrew from the proceedings after the no-case submission was wrongly overruled,
a conviction based on subsequent incriminating evidence would be set aside on appeal.

In Mumuni & 13 Ors v. The State (supra), multiple charges were preferred against the accused persons.
They were convicted of various offences and they appealed against their conviction. The 9th accused, a
legal practitioner, appealed against his conviction on the ground that the trial court erred in law in
convicting him of two counts preferred against him. Appearing in person, he contended that there was
no evidence against him at the close of the prosecution’s case. At that stage a no-case submission was
made by his counsel in the lower court. After the no-case submission was wrongly overruled, the
accused took no further part in the proceedings. Nonetheless, he was convicted on the subsequent
incriminating evidence of some of his co-accused. The Nigerian Supreme Court held that where a no-
case submission is wrongly overruled, and an accused withdraws from further participation in the
proceedings, as in this case, he cannot be convicted on subsequent incriminating evidence. The
accused’s conviction was therefore set aside and the appeal allowed.

153
(1977) 5 SC 197
154
(1975) 6 SC 79
155
(1988) 12 SCNJ 191

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In Chuka & Ors v. The State156, ten accused persons were charged with murder. A no-case submission
was made on behalf of all the accused persons except the first. The trial court upheld the no-case
submission on behalf of the second and seventh accused persons. They were discharged and acquitted.
The no-case submission was rejected on behalf of the others. At the conclusion of the trial, the court
convicted the first, third, fourth, fifth, sixth, eighth and tenth accused persons. The ninth accused person
was found not guilty and acquitted. On appeal against their conviction by the first, third, fourth, fifth,
sixth, eighth and tenth accused persons, the appellate court held that the trial court was right in
overruling the no-case submission made on behalf of the fifth and sixth accused persons. It held that the
court was wrong in overruling the no case submission made on behalf of the third, fourth, eighth and
tenth accused persons. It found that after the overruling of the no-case submission, the accused persons
took further part in the proceedings. Justice Agbaje formerly of the Nigerian Supreme Court held:

After the ruling on the no-case submission and the proceedings in the case continued, the 3rd,
4th, 5th, 6th, 8th and 10th accused took part in subsequent proceedings, although their counsel has
earlier on said that they were relying on the no-case submission and in fact none of them went
to the witness box to give evidence. I have come to this conclusion because as I have said earlier
on in this judgment their counsel cross-examined the 1st accused person who gave evidence in
the witness box.
The first accused in this case had confessed to committing the offence and gave subsequent
incriminating evidence against the other accused persons. Nonetheless, the Court held that on the
authority of Mumuni’s case, the third, fourth, eighth and tenth accused persons whose no-case
submissions were wrongly overruled could not have been convicted on the subsequent incriminating
evidence of the first accused. Therefore the appeal of the third, fourth, eighth and tenth accused
persons were allowed. Note that even though the court in Chuka’s case relied in the Mumuni case, the
two are different in that in the Chuka case, the accused persons took further part in the proceedings
which wasn’t the case in the Mumuni case.

Note that in the Mumuni case, the court held that if a no-case submission is wrongly overruled and an
accused person took further part in the proceedings, he may be denying himself of the certainty of the
conviction being quashed on appeal. This prompted Agbaje JSC to comment in the Chuka case as
follows:

On the horns of what a dilemma does this case an accused or a defending counsel! Should he
stay quiet he may meet with unjust conviction on the uncontradicted evidence of the co-
accused when one question by way of cross-examination would have demonstrated the
falseness of the evidence. Should he put that question he is throwing away certain safety, if his
view as to the submission is right.
Doherty correctly explained the law on the subject at page 277 of her book thus:

The decision in the Okoro’s case157, although is purported to rely on the interpretation of the
Mumuni’s case as stated by Udoma JSC in Daboh’s case, has undoubtedly changed the law by
stating unequivocally that to ask an accused person to enter into his defence when he has no
case to answer after the prosecution’s case, is to ask him to prove his innocence. Therefore
where a court ought to have ruled that the accused has no case to answer, and it fails to do so, a

156
(1988) 7 SCNJ (Pt 11) 262
157
supra

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 subsequent conviction of such an accused should be set aside on appeal. Similarly, where a no-
case submission was wrongly overruled, a subsequent conviction of an accused irrespective of
whether he withdrew or took further part in the proceedings would be set aside.

3. Where it is held by the appellate court that a no-case submission made by counsel was rightly
overruled by the trial court, any subsequent incriminating evidence adduced against the accused is
admissible as evidence against him. Any subsequent conviction based on the subsequent incriminating
evidence would be affirmed on appeal. It is immaterial whether the accused took further part in the
proceedings after the no-case submission was rightly overruled. In other words, whether he took further
part in the proceedings, or he withdrew from the proceedings after the no-case submission was rightly
overruled, a conviction based on subsequent incriminating evidence would be affirmed on appeal.

In Mumuni’s case, the court held that where a no-case submission s rightly overruled by the trial court
and subsequent incriminating evidence are adduced against the accused, a subsequent conviction based
on the incriminating evidence would be affirmed on appeal. This was reiterated by Udo Udoma JSC in
Daboh’s case thus:

… a prisoner against whom there is some evidence calling for his explanation on oath should not
be placed in a more advantageous position at the end of the trial solely on the ground that he
rested his case on his submission and declined to participate further in the proceedings. In such
a case, the trial court may consider against the prisoner all the evidence produced at the trial,
including any incriminating evidence subsequently given by a co-prisoner.

In Chuka’s case, the appellate court held that the no-case submission made on behalf of the fifth and
sixth accused persons was rightly overruled. The accused persons took further part in the proceedings.
Subsequent incriminating evidence of the first accused was admissible as evidence against them. Their
conviction by the lower court was affirmed by the appellate court.

We can therefore conclude that it is now trite law that the effect of subsequent evidence after a ruling is
delivered by a court depends solely and exclusively on whether the appellate court holds that the trial
court ought to have ruled that the accused has no case to answer. When the trial court ought to have
ruled that the accused has no case to answer or wrongly overruled a no-case submission made on behalf
on the accused, any subsequent incriminating evidence adduced against the accused is inadmissible
against him. Therefore the effect of the trial court failing suo motu to rule that the accused has no case
to answer and of wrongly overruling the no-case submission made by counsel to the accused is the
same, i.e. a subsequent conviction based on subsequent incriminating evidence adduced against the
accused must be quashed.158

158
See Doherty, page 278

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Where the appellate court holds that a no-case submission is rightly overruled, in other words where
the accused has a case to answer, an accused can be convicted on subsequent incriminating evidence
adduced against him.159

The steps taken by an accused person after a ruling has been delivered as to whether an accused has a
case to answer or not are completely irrelevant. It does not matter whether the accused withdrew from
the proceedings or took further part in them and consequently, the fears expressed by Agbaje JSC as
stated above cannot arise. What matters is whether at the close of the prosecution’s case, the accused
person has a case to answer.160

TRIAL WITHIN A TRIAL

A confession made by an accused person is irrelevant in criminal proceedings if the making of the
confession appears to the court to have been caused by an inducement, threat or promise by a person
in authority in respect to the charge against the accused.161 When an accused charged with a narcotics
offence alleges that a statement sought to be tendered by the prosecution is not voluntary, the trial
court is obliged to conduct a trial within a trial to determine the admissibility of the statement. The
burden of proving the voluntariness of a confession is on the prosecution, and the standard of proof is
beyond reasonable doubt.

It must be noted however that a trial within a trial should not be conducted where the only objection of
the accused to the admissibility of a statement is that the statement was not read to him before he
signed it. Similarly, trial within a trial does not apply where the accused person denied making or
knowledge of its existence.162 The purpose of a trial within a trial is also not to determine whether the
accused made the statement but whether he made it voluntary.163

During the trail within a trial, a court has to look into the circumstances that led to the making of the
alleged confessional statement.

Note that the trial procedure in a trial within a trial is very technical. For guidance please see Amadou
Badjie v The State (unreported) presided over by Ayoola CJ (as he then was).

PRESENTATION OF CASE FOR THE DEFENCE AND ADDRESSES

S. 167164 of the CPC provides:

(1) At the close of the evidence in support of the charge, if it appears to the court that a case is
made out against the accused person sufficiently to require him or her to make a defence, the
court shall call upon him or her to enter into his or her defence and shall inform him or her that,

159
Ibid.
160
Ibid.
161
s.33 Evidence Act
162
Hon. Justice A. Aboki of the Kano High Court in Paper on Criminal Trial Procedures in the Magistrate and Area
th st
Courts at a Seminar for Magistrate and Area Court Judges, 20 -21 May, 1999.
163
Queen v Igwe (1960) 5 FSC 55
164
This section applies only to criminal trials before a subordinate court.

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 if he so desires, he or she may give evidence himself or herself on oath or may make a
statement. The court shall then hear the accused if he or she desires to be heard and any
evidence he or she may adduce in his or her defence.
(2) If the accused persons states that he or she has witnesses to call but that they are not
present in court, and the court is satisfied that the absence of the witness is not due to any fault
or neglect of the accused person and that there is a likelihood that they could, if present, give
material evidence on behalf of the accused person, the court may adjourn the trial and issue
process, or take steps, to compel the attendance of the witnesses.
(3) If the accused person examines any witnesses or gives any evidence other than as to the
accused person’s general character, the court may grant leave to the prosecutor to give or
adduce evidence in reply.

For opening and closing addresses and the right of reply before a subordinate court see s. 168 of the
CPC which provides:

(1) The prosecutor and the accused person are entitled to address the court at the
commencement of their respective cases.165
(2) After the close of the accused person’s case the accused shall be entitled to address the
court and the prosecutor shall then be entitled to reply:
Provided that if the accused person adduces no evidence, or no evidence other than
evidence given by himself or herself, the accused person shall, subject to the provisions of
subsection (3) of this section, be entitled to the right of reply.
(3) Notwithstanding the provisions of subsection (2) of this section, where any issue of law is
raised by a person with the right of reply in the course of the reply, the court may, in its
discretion, give to any other person having a right of address leave to address the court on
that issue of law.
(4) Where a right of address is conferred by the provisions of this section upon a prosecutor or
any accused person, that right may be exercised by a counsel representing the prosecutor or
accused person

For trials before the High Court, at the close of the prosecution’s case, the judge shall inform an
undefended accused person of his right to address the court166, his right to give evidence on his behalf
or call witnesses to his defence. In addition, the judge shall require the accused or his counsel to state
the defence will be calling any witnesses other than the accused person himself. The accused person’s
responses to these questions are recorded by the court which then proceeds with the matter in
accordance with the procedure outlined in240 of the CPC.167 The procedure to be followed where an
accused person is undefended or defended is as follows:

a. Where an undefended accused person states that he does not intend to call any witness as to
the facts other than himself, the court shall forthwith call upon the accused make his statement
or give evidence on oath as to the facts and after his cross-examination, if any, he shall be
permitted to address the court if he so desires and to call any witnesses of character.

165
The prosecution and the defence can therefore make opening addresses but this is not a common practice in
this jurisdiction.
166
The defence can make an opening address in trials before the High Court but again this is not a common practice
in this jurisdiction.
167
See s. 239 of the CPC

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 b. Where an undefended accused person states that he intends to call witnesses other than
himself as to the facts, the Court shall invite the accused to open his case if he so desires. The
accused shall then make his unsworn statement or give evidence on oath, and thereafter he
shall call his witnesses, including his character witnesses. At the conclusion of the evidence for
the defence, the accused shall then be permitted to sum up his case to the court and counsel for
the prosecution shall be entitled to reply.
c. Where the accused is defended by counsel who states that no witness as to the facts will be
called, except the accused, the Court shall require the accused to make his own unsworn
statement or give evidence on oath. Thereafter, the prosecuting counsel may address the Court
and the defence counsel may reply. This is then followed by witnesses to the character of the
accused, if any.
d. Where the accused is defended by counsel who states that he intends to call witnesses as to the
facts other than the accused, the Court shall call upon the accused’s counsel to open his case
and shall then require the accused, if he so desires, to make his own unsworn statement or give
his evidence of oath. Thereafter, the accused is invited to call his witnesses, including character
witnesses and at the conclusion of his defence, his counsel may address the court and the
prosecution may reply.

It should be noted that in any case where two or more accused persons are jointly tried and some of
them are defended by counsel and others are not, the court shall, for the purposes of procedure,
deem all the accused persons to be defended by counsel.168

Note further at irrespective of the provisions of s. 240 of the CPC on right to reply, the Attorney
General, Solicitor General, Director of Public Prosecutions, Director of Civil Litigation, Parliamentary
State Counsel, any Principal State Counsel, Senior State Counsel, State Counsel and any other police
officer, or other person appearing on behalf of the Attorney General or Inspector General of
Police169, all shall in all cases have a right of reply.170

It should also be emphasized that based on the above provisions, the accused person in all criminal
trials has three alternatives available to him after the prosecution closes its case. He can opt to
remain silent171 or give evidence on oath from the witness box, or make a statement from the
dock172. In the last case, he will not take the oath and will not be cross-examined.

168
See s. 240 (5) of the CPC
169
Can police officers or non-lawyers appearing on behalf of the Attorney General prosecute cases before the High
Court? They are given a right of reply under s. 240 (6) which appears in Part VII of the CPC. Note that Part VII only
applies to trials before the High Court.
170
S. 240 (6) of the CPC
171171
This means the accused has opted to rest his case on that of the prosecution and does not wish to make any
statements or give evidence or call witnesses. Since the court has only heard one side of the case, it would be at
liberty to draw any reasonable inferences from the prosecution’s case. See the Nigerian cases of Nwede v. The
State (1985) 12 SC 32 and Ali & Anor v. The State (1988) 1 SCNJ 17. These cases show that one should only adopt
the strategy of resting the defence case on that of the prosecution if the prosecution’s case is manifestly weak and
no conviction can be secured on it. This option should therefore not be adopted if the evidence adduced by the
prosecution is damaging
172
If an accused person opts for this option he would not be cross-examined. This means the court might not attach
weight to such a statement not given on oath and whose veracity has not been tested by cross-examination.

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 Where an accused is represented by counsel, the duty of the court is to call the defence counsel to
proceed because it is assumed that counsel knows the law.173 Where an accused person is not
represented by counsel or his counsel is absent in court at the close of the prosecution’s case, it is
the duty of the court to explain the three alternatives available to him in a language he understands.
The court must explain the 3 alternatives to the accused. It is not enough for the court to merely
read out the provisions of s. 167 or s. 239 of the CPC.174

It should also be noted that irrespective of whether the accused gives evidence from the witness
box or makes a statement from the dock, he can call witnesses.175

AMENDMENT OF A CHARGE OR INFORMATION

S. 169 of the CPC176 empowers a Court to make an order that the charge be amended or substituted or a
new charge added, provided the court is satisfied that the accused will not suffer any injustice. After the
charge is amended, the Court shall call upon the accused to plead to the new charge. The accused may
then recall any of the prosecution witnesses for further cross-examination by him or his counsel. The
accused can also give or call further evidence after such amendment. The Court must tell the accused of
his right to recall witnesses, s. 169 (4). If the charge is altered and an accused is prejudiced thereby, the
court shall adjourn the trial for such a period as may be necessary, s. 169 (2). The provisions of s.169
must be strictly followed. It must be noted however that variance between the charge and the evidence
adduced in respect to the time at which the alleged offence was committed is not material and the
charge need not be amended because of such variance if it is proved that the proceedings were in fact
instituted within any time limited by law for the institution thereof, s. 169 (3).

For amendment of an information before the High Court, see s. 218 of the CPC.

173
See Adio v The State (1986) 6 SC 119
174
See the Nigerian case of Josiah v The State (1985) SC 406 where the accused was charged with armed robbery
and murder. At the trial, he was not represented by counsel. The record of proceedings in the lower court showed
that the trial judge stated that the rights of the accused were explained to him. There was no further elaboration in
the record of proceedings as to the rights of the accused that were explained to him. He was convicted. On appeal
it was held that he did not have a fair trial because of the failure of the trial court to specify the rights that were
explained to him. Eso JSC held that “…the advice which his counsel, had he been so represented, would have given
him is now ascribed as a duty to the court…”
175 rd
Emmins C.J, A Practical Approach to Criminal Procedure 3 Ed.,p.115
176
Applies to trials before a subordinate court

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