Objection, Your Honor; Rudiments of Trial: A Guide for Law Students.

Objection, Your Honor; Rudiments of Trial: A Guide for Law Students.

By Kuatsea Shagbaor Joseph

Abstract

In today’s law students’ community, there is a concept of moot and mock trials. This is basically where law students role-play as actual lawyers/litigants and Judges and mimic an actual trial. This is obviously done to gain insight, experience and training into the art of trial which is a fundamental aspect of litigation. But due to many factors such as lack of proper source materials, laxity or no expert to guide them, law students tend to get it wrong as the basics are not properly comprehended and taken cognizance of. This article at an elementary level seeks to equip law students with the necessary knowledge needed to conduct a proper trial.

INTRODUCTION

Trial in litigation is a very fundamental exercise, it is the tool which lawyers use to expeditiously adumbrate their argument before the Judge(s) so as to obtain judgement in favor of their client. In Nigeria we have an adversarial system of adjudication where lawyers are duty bound to look for evidence supporting their claim and present them before a Judge who seats as an unbiased umpire and delivers judgement according to the merits, relevance  and weight of the evidence and arguments of counsels. This whole process is what is termed trial.

WHAT IS TRIAL

Black Law’s Dictionary 8^th edition defines Trial as a formal examination of evidence and determination of legal claims in an adversary proceeding.

Oxford Dictionary of Law defines it as the hearing of a civil or a criminal case before a court of competent jurisdiction.

A Trial is a necessary exercise in ensuring the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended are adhered to. Section 36 entails the right to fair hearing and fair hearing is obtained when a court of competent jurisdiction sits and hears a matter be it civil or criminal (Trial). Thus Eko JSC in  OKORIE V STATE  opined that Fair Hearing or Fair Trial means a hearing conducted in accordance with due process of law or the legal rules formulated to ensure that justice is done to all parties on equal footing. It goes therefore without saying that for a trial to be valid it must adhere to all necessary requirements imposed by law such as compliance with jurisdiction and adherence to the principle of “Audi Alterem Patem” which means let the both sides be heard thus we can conclude that a trial is not valid if only one of the parties in the suit is heard. Fair hearing therefore is not a one way traffic as was posited by Onnoghen JSC in MFA & ANOR V INONGHA. Jauro JSC in ILOPUTAIFE & 4 ORS V ORJI & 17 ORS held that the principle of fair hearing is that both sides must be given an opportunity to present their respective cases and ventilate their grievances. It is therefore of the utmost essence for lawyers and lawyers in equity to understand the science and art of a proper trial so as to ensure their clients are given fair hearing.

TRIAL IN CIVIL AND CRIMINAL CASES

A Trial can take two forms : A Trial in a civil proceeding and a Trial in a criminal proceeding.

• SOURCES OF CIVIL PROCEDURE RULES
  1. The Constitution
  2. Statutes establishing courts
  3. Rules of Practice
  4. Court Rules

• SOURCES OF CRIMINIAL PROCEDURE RULES
  1. The Constitution
  2. The Criminal Code
  3. The Penal Code
  4. Criminal Procedure Act (CPA)
  5. Criminal Procedure Code (CPC)
  6. Administration of Criminal Justice Act (ACJA)
  7. Violence Against Persons Prohibition(VAPP) Act

In a civil proceeding a suit is instituted by ;

1. Writ of Summons: A Writ of Summons is a writ by which under the JUDICATURE ACT of 1873- 1875 all actions commenced. A Writ of Summons is the most common way of instituting actions in the court in a civil proceeding. It is usually used to address highly contentious claims and matters as well as matters where the facts are in dispute. A Writ of Summons is usually attached with a statement of claim and particulars of evidence relied upon marked as exhibits and a written address. A Writ must be endorsed at the backside of the Writ stating the reliefs which the claimant is seeking from the defendant. A Writ must be filed with the necessary documents, or it shall be struck out see JABITA V ONIKOYI

• CONTENTS OF A WRIT
  • Heading of the court where action is brought showing the court and the judicial division where the suit is brought
  • In certain actions, the heading of the matter (e.g. fundamental human rights )
  • Suit Number
  • The names and description of the parties and the capacities in which they sue or are sued.

2. Originating Summons: Another way of instituting a civil proceeding is by way of Originating Summons. An Originating Summons is used for circumstances where there is no dispute on the question of fact or even the likelihood of such dispute. Originating Summons is best used when questions of law arise as to interpretation and application of written documents, deeds and statutes. Thus in WAKWAH V OSSAI the court held that Originating Summons is best used where there is unlikely to be any substantial dispute of fact. If the proceedings are hostile Originating Summons should not be used per Onnoghen JSC inSANI V KOGI STATE HOUSE OF ASSEMBLY. In an Originating Summons Affidavit serve as statement of claim and defense.
3. Originating Motion: Originating Motion is used to commence actions where laws or rules of court makes provision for its use or where a statute provides that an application may be made but does not stipulate the specific mode of commencement. Example of action to be commenced by this way include:

• Application of Habeas Corpus
• Order of Mandamus
• Application for Judicial Review
• Prohibition or Certiorari
• Action for enforcement of Fundamental Human Rights under the Fundamental Human Rights Enforcement Procedure Rules of 2009

Where a statute provides that action be commenced by application but does not specifically provide the procedure, Originating Motion should be used see AKUNNIA V AG ANAMBRA 

4. Petition: Used to institute proceedings in matters of election, winding up proceedings in accordance with CAMA and dissolution of marriage

In a criminal proceeding a suit is instituted by:

1. By summary trial commenced by wag of a charge
2. By information by the Attorney General of the Federation  or a law officer in his office
3. By information filed  by a legal officer in any prosecuting agency see SHEMA V FRN

EVIDENCE IN CIVIL CASES

In a civil proceeding evidence must be given to support a claim or set of claims. At this point all lawyers are familiar with the Latin Maxim “ Affirmanti Non Neganti Incumbit Probation” which means burden of proof is on he who affirms. This is codified in Sections 131, 132, 133 of the Evidence Act 2011 as amended and Section 134 of the same Act provides that standard of proof in civil matters is the balance of probabilities or preponderance of evidence see OSUJI V EKEOCHA. In stressing the importance of evidence Okoro JSC in UKEJE V UKEJE held that it is not enough for a party to make an allegation before a court he must lead credible evidence to prove same. In EDIRU V TIJANI the court held: he who asserts must prove and failure to prove with cogent evidence is sufficient ground for dismissal. Lawyers must note that evidence to be relied upon must be must be stated in a counsels pleadings thus Fabiyi JSC in Aminu & 2 ORS V HASSAN & 2 ORS held that it is basic that in civil cases, issues are settled on pleadings and courts should not allow evidence in respect of facts not pleaded. Evidence has to be relevant to the fact in issue, any evidence not relevant to the fact in issue will not be admissible thus Kekere Ekun JSC in AJAEGBO V STATE held that it is settled law that the cardinal consideration in the admissibility of a document as evidence Is relevancy. Once a document is relevant to the fact in issue and is legally admissible, it would be admitted in evidence. Evidence can be proven by use of witness or tendering of documents.

EVIDENCE IN CRIMINAL CASES

The standard of evidence in a criminal case is so high because of the courts philosophy that it is better to release 99 offenders than to convict one innocent person. As such the standard of proof is  beyond reasonable doubt see Section 135 of the Evidence Act 2011 as amended. The burden of proof is always on the prosecution and shall only shift when he has thoroughly proven beyond a shadow of doubt that the accused is guilty as charged. The above position received judicial blessing in OGU V COMMISSIONER OF POLICE. It is important to point out that proof beyond reasonable doubt is not by quantity of evidence but quality as opined in the case of UKPE V STATE. In the eyes of the law said person is presumed innocent until proven guilty by a court of competent jurisdiction see Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended. In criminal cases an accused can make a confession and this will be binding on him provided it was made voluntarily see R V HASKE

WITNESS EVIDENCE

A common way of proving a fact is by using a witness who can testify before the court. There are rules guiding witness evidence such as inadmissibility of hearsay which means a witness must not be narrating to the court what another person who is not before the court told him see Section 37 of the Evidence Act 2011 as amended, and swearing an oath or making an affirmation as enshrined in Section 205 & 207 of the Evidence Act. Section 210 of the Evidence Act governs examination of witness.

A person who is testifying in court will be subject to:

1. Examination in Chief: This is done by the counsel who brought the witness to court to testify. Basic questions are asked at this stage. Leading questions shall not be asked at this stage. The other counsel can raise an objection if leading questions are asked at this stage see Section 221 of the Evidence Act. Rhodes-Vivour JSC in AYORINDE V SOGUNRO held that examination in chief is an opportunity for the plaintiff and his witness to state their case on oath. Section 239 of the Evidence Act 2011 as amended permits a witness to refresh his memory during examination in chief.
2. Cross Examination: This is done by the other counsel who did not bring the witness to court see Section 214 of the Evidence Act. Under Section 215(1) of the Evidence Act 2011 as amended cross examination of a witness comes as the second broad step in examination of such a witness. Cross examination must relate to relevant fact and under no circumstance should questions that are aimed at scandalizing or annoying the witness be asked see Section 227 & 228 of the Evidence Act. Leading questions can however be asked. Achike JSC in OFORLETE V THE STATE in stressing on the importance of cross examination had this to say

“ The noble art of cross examination constitutes a legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party……”

Nweze JSC expressed obiter dictum in ALFA V ATTAI that cross examination is the creates weapon for devastating an adversary, it is therefore the pivot, the hub on which trial gravitates.

3. Re- Examination: This is done to address the confusions that may have sprung up during cross examination it is provided for in Section 215(1) & (3) of the Evidence Act 2011 as amended

RELIEFS SOUGHT IN CIVIL CASES

1. 1. Damages
   2. Restitution
   3. Injunction
   4. Indemnity
   5. Specific Performance

PUNISHMENT SOUGHT IN CRIMINAL CASES

1. 1. Imprisonment
   2. Payment of fine
   3. Capital Punishment
   4. Community Service

HOW TO DRAFT A BRIEF IN A CIVIL CASE

1. 1. When using a Writ of Summons:

(I)Writ of Summons             (II)Statement of Claim

(III)Particulars of Evidence

(IV)Written Address

(V)Prayer

(VI)Sign and Stamp

2. When using Originating Summons
   • Originating Summons
   • Affidavit
   • Particulars of Evidence
   • Written Address
   • Prayer
   • Sign and Stamp

TABLE OF CASES

1. OKORIE V STATE
2. MFA & ANOR V INONGHA
3. ILOPUTAIFE & 4 ORS V ORJI & 17 ORS
4. WAKWAH V OSSAI
5. JABITA V ONIKOYI
6. SANI V KOGI STATE HOUSE OF ASSEMBLY
7. AKUNNIA V AG ANAMBRA
8. OSUJI V EKEOCHA
9. UKEJE V UKEJE
10. EDIRU V TIJANI
11. AMINU & 2 ORS V HASSAN & 2 ORS
12. AJAEGO V STATE
13. OGU V COMMISSIONER OF POLICE
14. R V HASKE
15. UKPE V STATE
16. AYORINDE V SOGUNRO
17. OFORLETE V THE STATE
18. ALFA V ATTAI

TABLE OF STATUTES

1. SECTION 36 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AS AMENDED
2. THE JUDICATURE ACT OF 1873- 1875
3. SECTION 37,131,132,133,134,135,205,207,210,214,215(1)&(3),221,227,228,239 OF THE EVIDENCE ACT

REFERENCES

1. BLACK LAWS DICTIONARY
2. OXFORD DICTIONARY OF LAW
3. ROTIMI JACOBS’ “ CRIMINAL PROCEDURE IN NIGERIA”
4. JUSTICE OLADOTUN JCA “ CIVIL LITIGATION IN NIGERIA”
5. ABIOLA SANNI’S “ INTRODUCTION TO NIGERIAN LEGAL METHOD “
6. ESE MALAMI’S “ NIGERIAN LEGAL SYSTEM”
7. HON. “ NIGERIAN LAW OF EVIDENCE”

****************************************************************************************

This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.

DISCLAIMER:

This publication is not a piece of legal advice. The opinion expressed in this publication is that of the author(s) and not necessarily the opinion of our organisation, staff and partners.

PROJECTS: 

🛒 Take short courses, get samples/precedents and learn your rights at www.SabiLaw.org

🎯 Publish your legal articles for FREE by sending to: eve@sabilaw.org

🎁 Receive our free Daily Law Tips & other publications via our website and social media accounts or join our free whatsapp group: Daily Law Tips Group 6

KEEP IN TOUCH:

Get updates on all the free legal awareness projects of Sabi Law (#SabiLaw) and its partners, via:

YouTube: SabiLaw

Twitter: @Sabi_Law

Facebook page: SabiLaw

Instagram: @SabiLaw.org_

WhatsApp Group: Free Daily Law Tips Group 6

Telegram Group: Free Daily Law Tips Group

Facebook group: SabiLaw

Email: lisa@sabilaw.org

Website: www.SabiLaw.org

ABOUT US & OUR PARTNERS:

This publication is the initiative of the Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). Sabi Law Foundation is a Not-For-Profit and Non-Governmental Legal Awareness Organization based in Nigeria. It is the first of its kind and has been promoting free legal awareness since 2010.

DONATION & SPONSORSHIP:

As a registered not-for-profit and non-governmental organisation, Sabi Law Foundation relies on donations and sponsorships to promote free legal awareness across Nigeria and the world. With a vast followership across the globe, your donations will assist us to increase legal awareness, improve access to justice, reduce common legal disputes and crimes in Nigeria. Make your donations to us here  or contact us for sponsorship and partnership, via: lisa@SabiLaw.org or +234 903 913 1200.

**********************************************************************************