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THE PRESENTATION OF THE CASE FOR THE DEFENCE. SESSION SIX (6) PARAGRAPH C.

BY ROTIMI JACOBS, SAN

BEING A PAPER PRESENTED ON 18TH MAY, 2023 AT A WEBINAR SEMINAR ORGANIZED BY THE NBA – CLE COURSE SESSION – CRIMINAL LITIGATION TRAINING

Protocols
I must express my deep appreciation for the invitation extended to me by the NBA Institute of Continuing Legal Education (NBA–ICLE) Course Session – Criminal Litigation Training to discuss an aspect of criminal litigation titled “The Presentation of the Case for the Defence.”
1.00 INTRODUCTION
1.01 It is a herculean task for a litigation lawyer to represent a criminal Defendant in a criminal trial. It is the expectation of the judex that the defence counsel will professionally present his client’s case, protect his interest, give proper advice, take proper and necessary steps in the pursuit of justice and as an officer of court. The client expects his counsel to do wonder to exonerate him form the legal debacle he finds himself. The perception of the society is also not so favourable in that they see the defence counsel as a person set out to supress crime and thereby prevent the defendant from getting his just dessert. The duty of a defence counsel is not an easy task, any advice he gives or the step he takes may have a debilitating effect on his client’s case. Thus, a defence counsel must therefore abreast himself with the knowledge of law, both substantive and procedural laws in order to be able to efficiently perform his role as a defence counsel. It is in this light that, I thank the organisers of this training program as it will enhance the effectiveness of the administration of criminal justice in Nigeria. The training program is in line with the Rules 11 of the Rules of Professional Conduct for Legal Practitioners which makes it mandatory that a legal practitioner “shall participate in and satisfy the requirement of the mandatory continuing professional development program operated by the Nigeria Bar Association.”
1.02 Our subject in this discussion is on “The presentation of the Case for the Defence”. The first observation on the topic is that, the topic assumes that the prosecution has called its own witnesses and adduced its evidence which clearly reveals that a case has been

made out against the Defendant he is prosecuting. However, the presentation of the case for the defence does not start when a Defendant is called upon to make out his defence. The defence counsel is expected to present the case of his client even through the prosecution witnesses by cross-examining them and tendering relevant documents through them to support his defence, it may even commence while representing him during investigation. There are some defences or explanation that may be required to be given during investigation by a suspect. For example, where he intends to raise a defence of alibi, such a defence must be raised as early as possible to enable the investigator to investigate same. Thus, his assignment in presenting the case of his client starts at the stage of arraignment and his duty may extend up till judgment or even thereafter.
2.00 CASE FOR THE DEFENCE
2.01 The “case for the defence” is the systematic and logical presentation of the case of a Defendant accused of a crime before a court of law by his lawyer. It is on this note that even the counsel is referred to as ‘defence counsel’ or simply ‘defence.’ The role of a defence counsel is to protect his client against unjustified, and unmerited conviction, punishment or sanction for the offence he did not commit or to minimise or reduce the punishment that would have ordinarily been inflicted upon him.
2.02 The defence in a criminal matter is a denial of prosecutor’s charges or allegations. It is the duty of the defence counsel to bring out the evidence in rebuttal of the evidence adduced by the prosecution. However, before he can do this, he must
1. Understand the allegations made against his client and the offences charged
2. The ingredients of the offences
3. The evidence required to prove the ingredients
4. The defences available to his client.
5. The legal issues involved in the case.
The evidence of rebuttal can be extracted from either the defence witnesses or even from the prosecution’s witnesses. Thus, this paper will highlight the tools available for the presentation of the case of the defendant and how the defence counsel may present the case of his client. It will point out the tools available to the defence to neutralise the prosecution’s case. These tools, if well utilised, are capable of discrediting or controverting every piece of material, oral and documentary evidence led and adduced by the prosecution. It is not the role of the defence counsel to change the fact of the case.
TOOLS FOR PRESENTATION OF CASE OF THE DEFENDANT
1. Effective cross examination of prosecution’s witnesses – The presentation of the case of the defence in court normally commences from the examination of the prosecution’s witnesses by the defence counsel. Cross examination of prosecution’s witnesses is a very crucial aspect of the presentation of the defence’s case.
a. The Defendant by section 36 (6) (d) of the Constitution enjoys the constitutional right to “examine in person or by his legal practitioner, the witnesses called by the prosecution before any court or the tribunal.” Section 300 of ACJA also conferred the right of cross examination on the Defendant.
b. Where the prosecution calls any witness, he must yield the witness to the Defendant for cross examination. See Okoro v. The State (2012) 4 NWLR (Pt.1290) 351 at 373.
c. Cross examination gives an opportunity to the Defendant to test the credibility of the testimony of prosecution’s witness. See Okoro v. The State (2012) 4 NWLR (Pt.1290) 351 at 373.
d. The defendant must cross examine the prosecution’s witness on every material fact in controversy which the defendant does not accept as true. Thus, the defendant must at least make the witness to be aware that he did not accept his testimony as true. See Udom v. Umana No. 1 (2016) 12 NWLR (Pt.1526) 179 at 243 – 244.
e. It is unsatisfactory, if not suicidal for the defence counsel to neglect to cross examine a witness after his evidence in chief in order to contradict him or impeach his credit but attempt at doing so only by calling other witness or witnesses to contradict the evidence. See Oforlete v. The State (2000) 12 NWLR (Pt.681) 415 at 436 – 437, Alor v. The State (1996) 4 NWLR (Pt.445) 726 at 739, Okasi v. State (1989) 1 NSC 375 at 381 – 382.
f. Cross examination of prosecution’s witness is to destroy or damage the case of the prosecution and to make the court believe that the accused did not commit the offence or if he committed the offence, there are valid defences available to him. See Emoga v. The State (1997) 9 NWLR (Pt. 519) 25 at 34.
g. The cross examination by the defence counsel is also to assist the defence to strengthen or fortify his own case apart from weakling the case of the prosecution. Olowookere v. State (2011) LPELR – 9018 (CA), Iwuoha v. Okoroike (1996) 2 NWLR (Pt.429) 231. In Jua v. The State (2010) 4 NWLR (Pt.1184) 217 at 245 – 246, Tobi JSC reiterated the importance of cross examination by the defence counsel thus;
“The main aim or objective of cross examination is to destroy or damage the case of the prosecution and to make the court believe that the accused did not commit the offence; or if he committed the offence, there are valid defences available to him.”
Thus, the importance of cross examination can be seen in the presentation of the defence case even before the case of the prosecution is closed and before the Defendant is called upon to open his defence. The defence is expected to have used the tool of cross-examination to:
i. Weaken or damage the case of the prosecution.
ii. Bring out his own defence.
iii. Cast reasonable doubt on the case of the prosecution.
iv. Strengthen or fortify the case of the defence.
v. Convince the court that the defendant did not commit the offence.
vi. Even if the offence was committed, there are valid defences available to the defendant.
vii. Discredit the testimonies of the prosecution’s witnesses.
If the tool of cross-examination is properly utilised and the defence counsel is effective at it, it is capable of terminating the prosecution’s case even before the court calls upon the defendant to enter into his defence. The defendant may decide to rest his case on the case of the prosecution where it is obvious that the prosecution has failed to prove its case beyond reasonable doubt.
2. Resting the case of the defence on the prosecution’s case – Rather than starting with the opening address and leading evidence, one of the options open to a defendant at the close of prosecution’s case is that the defendant may rest his case on the prosecution’s case. The procedure of resting case on the prosecution’s should however be adopted with a great caution and circumspection. It is advisable to adopt this procedure where:
i. The case of the prosecution is apparently weak in law and in fact.
ii. The case is such that even if all the prosecution’s witnesses are believed, yet the offence as charged is still not proved.
iii. The prosecution’s case does not call for some explanations from the defendant.
iv. No issue of fact is required to be decided in favour of the defendant before his defence will succeed. See Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338 at 379 and 381, Nwede v. State (1985) 3 NWLR (Pt. 13) 444, Ali v. State (1988) 1 NWLR (Pt. 68) 1, Igabele v. State (2006) 6 NWLR (Pt. 975) 100.
v. No scintilla of evidence linking the defendant to the commission of the offence charged or similar offence which the defendant could be convicted in lieu of the offences charged.
vi. The prosecution fails to prove its case beyond reasonable doubt against the defendant, he (defendant) can take the full benefit of being discharged and acquitted. See Adamu v. State (2014) 10 NWLR (Pt. 1416) 441 at 462, Eseyin v. State (2015) LPELR-26015(CA).
When a defendant rests his case on that of the prosecution, the court does not make its ruling in such a case like an application for no case submission but delivers its final judgment.
Need to exercise caution – The defence counsel needs to exercise caution before advising and taking this step of resting the case of the defence on the prosecution’s case in that
a. The defendant cannot thereafter call any witness or contradict the evidence of the prosecution. This is part of the reason why the defendant and his counsel should adopt the procedure advisedly in rare cases. In the judgment, the trial court must consider the prosecution’s case carefully, decide on the credibility of the prosecution’s witnesses and also attach weight to their evidence.
b. Where explanation is required from the defendant, it will be unwise for him to rest his case on his prosecution’s case. In Edet Akpan v. The State (1986) 3 NWLR (Pt.27) 225 at 232 a murder case where the prosecution called its witnesses and close its case and the counsel for the defendant rested his case on the prosecution’s case and announced to the court that he will not call any evidence for the defendant. The accused was subsequently convicted and his appeal to the Court of Appeal was dismissed. On further appeal to the Supreme Court, the appellant contended that the trial court failed to give him several options opened to him and that he was denied right to fair hearing. Oputa JSC in his own contribution at page 238 of the report held that:
“Also, resting on a no case submission is a perfectly legally acceptable stratagem but when the prosecution’s case calls for some explanations which only the accused person can give and such accused decides to rest on a no case submission then the trial court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence it has got, nor dissuaded from reaching a firm conclusion by speculation on what the accused might have said if he had testified.”

Defendant in presentation of his case
i. Where a Defendant is represented by a counsel, his counsel must explain the three options available to the Defendant whenever he is called upon to make his defence.
ii. If he is not represented by a counsel, it is the duty of the court to explain the three options available to him under the law.
iii. These options are prescribed by section 358 of the ACJA, section 287 of the Criminal Procedure Act and sections 191, 192, & 236 of the Criminal Procedure Code applicable to Northern States and also ACJL of the states. See Josiah v. State (1985) 1 NWLR (Pt.1) 125, Saka v. The State (1981) NSCC 474 at 477 – 478.
The three options available to the Defendant are;
(i) Make statement from the dock without being sworn and without cross examination –
(a) The Defendant in appropriate case under section 358 (1) (a) of ACJA may make statement from the dock without being sworn and without being cross-examined by the prosecution and co-defendants.
(b) The Defendant only presents his defence from the dock without being sworn on oath and without cross examination.
(c) Such statement is not sworn evidence that may be liable to be cross-examined.
(d) The court is entitled to attach weight to the statement made from the dock by the defendant as it thinks fit.
(e) The court is enjoined to take such unsworn statement into consideration in deciding whether the prosecution has made out its case. In R. v. Frost & Hale (1964) 48 Cr. App. R 284 at 290 – 291, it was held that it is a misdirection to describe the statement made by the Defendant under the section as a mere comment. See also R. v. Peacock (1911) 13 CLR 619, Saka v. State (1981) NSCC 474 at 477 – 478.
(f) The court in practice do not place much weight on a mere statement made by the defendant from the dock and without being cross examined by the prosecution’s witness. In fact, in England, the practice has been abolished leaving only two options and not the three options. As stated in Saka v. State (supra), the provisions of section 287 of the CPA which is in pari materia to section 358 of the ACJA, was borrowed from the old Criminal Justice Act of England. However, the position of law has changed in England since 1982 by the enactment of section 72 (1) & (2) of the Criminal Justice Act 1982 which abolished the procedure that allows an accused person to make unsworn statement and without being cross examined. The reason for the change of this position is the utility value of unsworn statement made by the Defendant, not liable to cross examination by the prosecution and other co-defendants. However, this option is still available under our law.
(ii) Give evidence in the witness box after being sworn and liable for cross examination –
(a) The second option available to the defendant under section 358 of the ACJA is the right of a Defendant to give evidence in the witness box after being sworn as a witness in which case he will be liable to cross examination.
(b) It is a tough decision to make whether it is appropriate for the defendant to give evidence in his own defence. Oputa JSC in Josiah v. State (1985) 1 NWLR (Pt.1) 125 at 138 alluded to the fact when it held thus:
“It is not easy to stand up to cross examination. It may even be difficult for a trained lawyer to decide on any particular case whether it is safe or unsafe to expose an accused person to the ordeal of cross examination. Under our system, there is no onus on the accused to prove his innocence. The law presumes him innocent. There is thus no duty on the accused to help the prosecution prove him guilty. Our law is against self – incrimination. It is in the interest of justice that every rule in favour of an accused person is meticulously observed and that no rule is broken to his prejudice. The least that the trial court could have done for the appellant whose life was at stake, (he was standing trial for his very life) was to inform him of his rights under section 287 (1) and it should be apparent on the record that each alternative was explained to the appellant since he was not represented by a legal practitioner.”
(c) It is expected that the defence counsel will heed the advice of Oputa JSC quoted above. Where the prosecution’s case is not strong as to secure conviction, it will be unwise to put the defendant in the witness box to face the rigour of cross-examination and expose him to the prosecution who may extract damaging evidence through him.
(d) Where there is no strong case against the defendant, it will be unwise to put the defendant in the witness box and subject him to cross examination by the prosecution.
(iii) Right to remain silent
(a) The last and the third option open to the defendant is the right to remain silent by not giving evidence personally. He may refuse not to give evidence but call others as his witnesses or not even call anyone.
(b) The right to remain silent is a constitutional right conferred on the defendant by sections 35 (2), and 36 (11) of the Constitution. It is also a statutory right conferred under section 358 (1) (c) of ACJA.
(c) The court cannot compel a defendant to give evidence in view of the provisions of section 36 (11) of the 1999 Constitution (as amended) in that he is at liberty to remain silent at his trial. Thus, a defendant is merely a competent witness for himself and not a compellable witness. See Eze v. FRN (2018) FWLR (Pt.923) 123 at 158 – 159.
(d) The right to remain silent must be properly explained to the defendant by his counsel and the implication of it. Where he is not represented by counsel, the trial judge or magistrate in asking the defendant to enter his defence, must explain the options available to him. In Odeh v. FRN (2018) LPELR – 47370 (CA), it was held that
“The record of the court must show that the trial court asked him the required questions and also explain to him his options so that he could make an informed choice. By the combined effect of sections 191 (b) and 236 (1) of the CPC, the appellant ought to have been asked, (i) whether he wished to give evidence on his own behalf as provided in section 236 of the CPC; in which case he would be sworn as a witness and would be liable to cross examination; (ii) whether he mean to call witnesses other than witnesses as to character. He also ought to have been told that he needed to say anything at all if he so wished. Not being furnished with the information above, it is no wonder that the appellant proceeded to say that “I do not have any defence. I still want an adjournment.” That shows the confusion in the uninformed mind of the appellant as to what to do… It was after the appellant had expressed his confused state of mind as stated above that the trial judge adjourned the case without stating what the adjournment was for. In the judgment, the trial judge held that the appellant had offered no defence that could be considered to exonerate him of the charge he faced. But then, he had not been informed of his right to give evidence on his own behalf and call witnesses. A reasonable person who was present at the trial would not leave the court with the impression that justice has been done to the appellant in the case. The trial therefore cannot be said to be fair.”
(e) A defendant who elects to keep silent cannot thereafter complain of the denial of fair hearing. Once opportunity is given to him and he fails to utilise the opportunity, he can no longer be heard to complain of denial of fair hearing. See Utteh v. State (1992) 2 NWLR (Pt.223) 257 at 274. In Ali v. State (1988) 1 NWLR (Pt.63) 1 at 18 – 19, the Supreme Court held that
“If the defence rests and refuses to put an accused person in the witness box to depose to his own version of the events, then the learned trial judge is denied the opportunity of listening to the accused tell his story, of watching his demeanour, of assessing his credibility and of making the necessary choice between his story and that of the prosecution. In the final result, the trial court will have to decide the case on the evidence before it undeterred by the incompleteness of tale from drawing all inferences that properly flow from the evidence of the prosecution. The defence has shut himself out will have himself to blame. The court will not be expected to speculate on what the accused might have said if he testified.”
See also Ajibade v. The State (2013) 6 NWLR (Pt.1349) 25 at 43.
(f) When the defendant may not be called as a witness - Defence counsel may not call the defendant to give evidence where:
i. the Defendant is reluctant and unwilling to give evidence
ii. the defendant is nervous
iii. the defendant is unable to withstand the fire of cross-examination by the prosecution
iv. the Defendant is an infant or too ill to follow the proceedings to the extent that he may not be able to give intelligent answers to questions.
v. the defendant is incapable of giving any exculpatory or useful evidence in his own defence.
vi. the defendant cannot give any useful rebuttal evidence.
vii. The story and the case of the Defendant is extremely weak.
viii. The prosecution has a water-tight case and any attempt to put the defendant in the witness box may further corroborate the case of the prosecution.
(g) It must be noted that the usual practice is for a Defendant who is raising a defence such as self-defence or alibi, has the evidential burden of placing some evidence of his defence before the court. The easiest way to discharge this burden is for the Defendant himself to give evidence.
(h) Where the Defendant fails to give evidence on his own behalf at the trial, the court may draw an adverse inference from such failure.
5. Order of Defence Evidence
(i) Generally, the Defendant should be called upon before any other defence witnesses to give evidence first once he decides to give evidence and call other witnesses thereafter.
(ii) The rationale for this rule is that while witnesses are normally kept out of court and out of hearing until they testify, the defendant has the right to be present throughout his trial and therefore would unfairly has the opportunity to listen to witnesses called by the defendant if the defendant is not called first and then have the opportunity to adjust his testimony to accord with that of his witnesses. See Igwede v. Queen (1959) NSCC 85 at 86, Morrison v. R (1911) Cr App R 159, Smith v. R (1968) 2 All ER 115, Suton v. Queen (2008) EWCA Crim R 3129.
(iii) However, the court has the discretion to depart from this usual procedure, particularly with respect to the evidence of witnesses that are not substantially disputed or evidence of an expert. However, character witnesses must always be called after the defendant has given evidence unless there are other witnesses as to fact.
(iv) The issue of order in which the defence is to give evidence was raised in Daniel v. FRN (2021) 6 NWLR (Pt.1771) 20 at 41 – 43 where the Supreme Court decision of Igwede v. Queen (supra), Smith v. R (supra), State v. Sanni (2018) 9 NWLR (Pt.1624) 278, Eke v. State (2011) 3 NWLR (Pt.1235) 289 were cited before the Court of Appeal but in their lordships’ wisdom, it was held that:
“In criminal trial, the accused person and his lawyer are dominis litis and shall determine the cause of the defence without interference whatsoever. Just as they cannot dictate to the prosecution the order of calling the witnesses, the prosecution cannot dictate order of the accused calling his witnesses. An accused person is entitled to conduct his case in a way and manner he deems fit.…”
It was further held in that case that the Defendant is not a compellable witness for the prosecution by virtue of the provision of section 36 (6) (d) of the 1999 Constitution (as amended). See pages 55 – 56 of the report.
(v) With respect to the Court of Appeal, their lordships misconstrued section 36 (6) (d) of the 1999 Constitution (as amended) and the basis for the principle that the defendant gives his evidence first before he listens to other witnesses, he might call in the case except informal witnesses and witnesses whose testimonies are not in dispute.
(vi) Section 212 of the Evidence Act still recognize that whilst a witness is giving evidence, all other subsequent witnesses should go out of court and out of hearing. The basis for this is to allow the witness to give his testimony freely without being influenced by the testimony of the witnesses who are testifying before him. See Ekang v. The State (2001) FWLR (Pt.68) 1123 CA.
(vii) The Court of Appeal overstretched the position of the Constitution that makes the defendant not a compellable witness. The issue is not on compellability of the witness but the issue that arise from the principle of fair hearing that guarantees that witness must give their free and independent testimony before the court. A witness waiting to give evidence must not wait inside the court room except he is an expert witness or a witness on facts not disputed.
(viii) The Court of Appeal even refused to follow the decisions of the Apex Court in Igwede v. Queen (supra), Smith v. R (supra), State v. Sanni (supra), Eke v. State (2011) 3 NWLR (Pt.1235) 289. There is no connection between the right enshrined in section 36 (6) (d) of the Constitution and the order of giving evidence by the defendant. They are not related at all. It is however gratifying that there is a pending appeal on the matter.
(ix) It is advisable notwithstanding the latter decision of Daniel v. FRN (supra) that the defence counsel calls the defendant first where he is to give evidence and intends to call other witnesses who are not informal witnesses. In practice, the court, in assessing and giving credibility to the testimony of the defendant and his witnesses, it may work in the mind of the judex that the fact that he gives evidence last enables him to tailor his testimony along with the testimonies of his witnesses and thereby giving little credit to the testimony of the defendant.
6. Nature of rebuttal evidence to be led through the witnesses for the defence.
(i) What is rebuttal evidence?
(a) Black Law Dictionary (6th Edition) by Henry Campbell Black defined rebuttal evidence as
“Evidence given to explain, repel, counteract, or disprove facts given in evidence by the opposing party. That which tends to explain or contradict or disprove evidence offered by the adverse party.”
(b) Rebuttal evidence is a response to evidence given by the opponent which is intended to be refuted by the other party.
(c) Rebuttal evidence is a form of evidence that is presented to neutralise, contradict, or nullify the other evidence presented by the adverse party. Rebuttal evidence, in restrictive sense, is applicable to evidence elicited from prosecution after it is granted leave to reopen its case after the disclosure of the defendant’s case in order to enable the prosecution give rebuttal evidence on a new fact or issue raised in the defence.
(d) Thus, rebuttal evidence is a disprove and denial of a fact by evidence.
(ii) It is now firmly settled that if the evidence adduced by the prosecution is tested, scrutinized, and accepted, and conclusively points to the Defendant as the perpetrator of the crime, it is for the Defendant to rebut the presumption that he committed the crime or to cast a doubt on the prosecution’s case by preponderance of probabilities. See Jua v. State (2010) 4 NWLR (Pt.1184) 217 at 257, Kalu v. State (1993) 6 NWLR (Pt.300) 385 at 396.
(iii) Thus, where the prosecution has established a particular issue in its favour, proving the ingredients of the offence, the onus will be on the Defendant to give evidence to explain, repel, counteract, or disprove that particular issue. There is a rebuttable presumption of law that a decision will be given on a particular issue in favour of the prosecution who establishes it or rely upon it unless it is rebutted by the Defendant. See Isma’il v. The State (2011) 17 NWLR (Pt.1277) 601 at 633. In that case, the prosecution led evidence to establish that the deceased was last seen with the Appellant before his death but the Appellant could not give any evidence of rebuttal.

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