This
has to do with examining a witness or witnesses after their attendance has been
secured in court to be a competent witness, where he is sworn or affirmed in
the witness box and gives his testimony.
The
testimony of the witness at any stage of his examination may be in either:
examination-in-chief, cross-examination, or re-examination. The last two is
however optional.
EXAMINATION–IN–CHIEF
Section 188(1) of Evidence Act provides
for the definition of examination-in-chief. It states thus:
“The
examination of a witness by the party who calls him shall be called his
examination-in-chief.”
Examination-in-chief is the
means by which admissible evidence is presented to a court. Its structure
should be of such a nature that it is rendered so probable that the mind of the
hearer believes it to be true. Thus, it is where you obtain evidence from your
own witness or witnesses.
The
purpose of examination-in-chief is
to elicit information from a witness which is favourable to the party who
called him to give evidence. It takes the form of responses to a series of
successive questions leading to a complete story line in the end to strengthen
the case.
PROCEDURE
1. The
witness enters the witness box and takes the oath or affirms to tell the truth.
2. The
witness is guided by counsel to tell the court his name, address, and
occupation.
3. Thereafter,
he begins to tell the court the whole story by identifying the parties involved
in the case and how he came to know them, specifically, in regard to the
events, which led to the proceedings in court.
4. The
witness is also guided to tell the court the story that is relevant, and in an
orderly and easy manner to follow.
5. The
witness may thereafter be cross-examine and re-examined before leaving the
witness box.
As a general rule when you ask your witness questions you should phrase
your questions using simple words and phrases to ensure the witness fully
understands what you are asking him. When questioning your witnesses
consider using points of reference to add variety to your questioning and to
move the witness along from one episode to the next. For example, ‘can
you tell us what happened after you saw the car swerve?’
QUESTIONS NOT ALLOWED IN
EXAMINATION-IN-CHIEF
1. The
examination of witnesses must be limited to facts which are relevant and
admissible. The facts related in oral evidence must have been covered in the
pleadings – Ladipo v. Ajani (1997) 8 NWLR (Pt. 517) 356.
2. It
must not be hearsay but direct evidence of one who saw or perceived it. This is
due to the fact that a statement amounting to hearsay is one which a witness
reports from what he heard from someone else, therefore, they are inadmissible
as a general rule.
3. No
leading questions are allowed in examination in chief.
Section 195 of the Evidence Act defines
leading questions as any question suggesting the answer which the person
putting it wishes or expects to receive. During examination-in-chief the counsel
is forbidden from asking their witnesses leading questions. A leading question
is one which requires a 'yes' or 'no' response. Though, section 196(2) of the Evidence Act makes exception to this rule as
the rule can permit questions as to matters which are introductory, or which
have, in its opinion, been already sufficiently proved. For example, asking of
names, address, etc is accepted.
The
objection to leading questions goes only to the weight of the evidence which
they elicit – Garba & Anor. v. The Queen (1959) 4 FSC 162 at 164. If
however, the objection is not taken until the question has been put and
answered, the court may allow it – Garba & Anor v. The Queen (supra).
EFFECTIVE WAYS OF CONDUCTING
EXAMINATION-IN-CHIEF
The
effective ways of conducting examination-in-chief is through open and closed
questions.
Open
questions introduces a general issue and allows the witness
to talk around the topic, and does not generally demand specific answers. It
begins with the use of any of the following: what, where, how, why, etc.
However,
it allows the witness to tell his
story uninterrupted leading the witness early to desired answers.
Where open questions are not effectively used it
may lead to unstructured testimonies and ramblings. Closed
questions on the other hand helps to put the witness who may be derailed back
on track. It begins with the use of the following: have, has, do, did, when, are, were, etc
It helps the examiner to limit the answer to his
question. It should however be rarely used because the credibility of the
witness is more enhanced by open questions than by closed questions since the
witness has the opportunity of telling his story by the use of the open
questions.
Ineffective use of closed
questions may give rise to leading questions.
CROSS
– EXAMINATION OF A WITNESS
This is the examination of a witness, by the party who did not call
him, upon matters to which he has been examined in chief. It is optional to
cross-examine a witness.
Section 188(2) of Evidence Act provides
for the definition of cross examination. It states thus:
“The
examination of a witness by a party other than the party who calls him shall be
called his cross-examination.”
Every party has a right to cross-examine a witness produced by his
opposing party, in order to test whether the witness has the knowledge of the
things he testifies and if, upon examination, it is found that the witness had
the means and ability to ascertain the facts about which he testifies, then his
memory, his motives, everything may be scrutinized by the cross-examination.
In cross-examinations, great latitude is allowed in the mode of putting
questions, and the counsel may put leading questions – section 197 of the Evidence Act.
However, where question asked in cross-examination relates to a matter
not relevant to the proceedings, except in so far as it affects the credit of
the witness by injuring his character, the court shall decide whether or not
the witness shall be compelled to answer it, and may, if it thinks fit, warn
the witness that he is not obliged to answer the question – section 201(1) of the Evidence Act.
The purpose of
cross-examination is firstly to establish and advance your own case and
secondly to attack the other side's case.
The object of cross-examination includes –
1.
To destroy or damage material parts of the
examination-in-chief so as to weaken it and thereby reduce its weight.
2.
To discredit the witness by showing that his
evidence is unworthy of belief by reason of bias, interest or his lack of
honesty or lack of knowledge of the events to which he testified.
3.
If an expert witness, to discredit his
qualification as such an expert and thereby expose him as unreliable,
incompetent, and ignorant of his chosen field of expertise.
However, a cross-examination of a witness is not always necessary or
advisable. A witness tells the truth wholly or partially, or he tells a
falsehood. If he tells the whole truth, a cross-examination may have the effect
of rendering his testimony more circumstantial, and impressing the judge with a
stronger opinion of its truth. If he tells only a part of the truth, and the
part omitted is favorable to the client of the counsel cross- examining, he
should direct the attention of the witness to the matters omitted. If the
testimony of the witness be false, the whole force of the cross-examination
should be directed to his credibility. This is done by questioning him as to
his means of knowledge, his disinterestedness, and other matters calculated to
show a want of integrity or veracity, if there is reason to believe the witness
prejudiced, partial, or willfully dishonest.
It
is important that when cross-examining witness or witnesses, the questioning
should be constructive to obtain support for your case, and to use destructive
questioning to challenge a version of the story which is not accepted by you.
The
cross-examination of witnesses needs to be structured and this can be achieved through
appropriate planning. The following points are advisable –
- Keep your cross-examination to few
points which support your theory of the case. This will strengthen
your argument.
- Make your strongest points at the
beginning and end of your cross-examination as these are the points likely
to remain in the mind of the listener or judge.
- Anticipate what the answer will be
before you ask the question. The purpose of cross-examination is to
obtain favourable facts and minimise the impact of the examination-in-chief.
- Do not write a script which you
follow as this will not allow you to respond effectively to the witness
and will weaken your argument.
- If the witness says something you
do not agree with do not argue with the witness as this undermines your
own credibility and will ultimately impact upon your case. If you are
pleasant and courteous to the witness, the witness should relax and
cooperate with you.
- Do not ask the witness open
questions as this gives them the opportunity to say what they like. You
need to ensure that you ask closed questions or leading questions as this
can help you keep control of the witness.
- If the witness during the
examination-in-chief has said something which favours your case, then
during the cross-examination you should make the witness repeat it for
emphasis. But avoid asking the witness ‘why’ in cross-examination,
otherwise, it will assist the witness to supply explanations for a given
conduct and thereby strengthen his story.
- You should put your version of the
case to the witness and give the witness the chance to accept or deny it.
- Locate a witness’s weak point and
exploit it.
Cross-examination is not necessary in
the following instances –
1.
Where
such evidence is self-contradictory and riddled with material discrepancies; or
2.
Where
the totality of the testimony is adverse to the case of the party who called
the witness; or
3.
Where,
generally speaking, the testimony does no harm to the case of the party who
ought to have cross-examined; or
4.
Where
the facts testified to in the examination-in-chief are formal or admitted.
The reason why it is advisable not to
cross-examine in any of the above instances is due to the fact that it will
only give the witness a second chance to correct his mistakes or damages made
when being cross-examined. In any case, if a witness is not cross-examined, an
admission of the truth of his evidence by the opposite party is implied – R. v.
Hart (1932) 23 C.A.R 202.
Where there are more than one
defendant, each defendant is entitled to cross-examine every witness of the
plaintiff. Where there are more than one defendant, but they are represented by
one counsel, the counsel will cross-examine once on behalf of each defendants.
Where, however, there are more than one defendant and they are represented by
different counsel, the counsel will cross-examine in the order in which the
names of the defendants appear on the writ.
RE-EXAMINATION OF A WITNESS
This is the examination of a witness
after he has been cross-examined. However, it is also optional to re-examine a
witness.
Section 188(3) of Evidence Act provides
for the definition of re-examination. It states thus:
“Where
a witness has been cross-examined and is then examined by the party who called
him, such examination shall be called his re-examined.”
Thus,
from the above provision, it is obvious that re-examination is only done in
instances where there is cross-examination. Thus, if there is no
cross-examination by the opposing party, there will not be need for
re-examination.
The purpose of re-examination is to give
the witness an opportunity of explaining any seeming inconsistency in his
answers and to clear any doubt relating to matters in his testimony. Thus, it
is used to clear ambiguities arising from cross-examination and should be
restricted to only matters which arose in cross examination – Fatoba
v. Ogundahunsi (2003) 14 NWLR (Pt. 840) 323. The reason is that new
issues are not allowed in re-examination, however, the court may, in its
discretion permit the introduction of new matters. If such a new matter is
introduced, the adverse party may cross-examine the witness again based on the
new matters – section 189(3) of the
Evidence Act.
In
re-examination, leading questions are generally not allowed, but can be allowed
in the same way which it is allowed in examination-in-chief discussed above.
HOSTILE WITNESS
Generally, a
party is not permitted to discredit his own witness whom he called to give evidence
in support of his case – section 207 of
the Evidence Act. However, a witness may with the permission of the court
be declared a “hostile witness” by
the party who called him. Such a witness is a person who begins to give
evidence that is adverse to the interest of the party who called him and is not
willing to speak the truth – Babatunde
v. State (1969) NMLR 227.
Once
the court is of the opinion that a witness is hostile to the party who called
him, it will permit him to cross-examine him and also impeach his credibility
by exposing him as unreliable untruthful. He can be confronted with previous
inconsistent statements made by him at some other occasion. His character can
also be impugned like any other witness undergoing cross-examination – sections 206 & 207 of the Evidence Act;
Esan v. State (1976) 11 SC93,
Ibeh v. State (1997) NWLR (Pt. 484)
632.
REFRESHING
MEMORY
Refreshing
of memory is provided for under section
216 of the Evidence Act. As a rule, a witness is not allowed to give his
evidence by referring to a prepared statement. However, the law permits a
witness to refresh his memory in oral examination by referring to any document
written by him or which came into his possession soon after the event relating
to which he testifies as a witness in other to remind himself of the facts.
The
reason why a witness is allowed to refresh his memory is to enable him from
suffering from a mistake due to lapse of memory. Though, this will depend on
the court to determine whether the transaction in the document was still fresh
in his memory as at the time he made the deposition and when he is appearing as
a witness – R. v. Jimo Amoo & Ors. (1959) 4 F.S.C. 113 at 115; (1959) W.R.N.L.R
199, where the trial judge allowed a witness to refresh his memory by
the reading to him of his deposition at the preliminary investigation, which
deposition was taken some five weeks after the incidents to which the witness
deposed. The Federal Supreme Court held that the trial judge erred in allowing
the witness to make use of the deposition to refresh his memory in these
circumstances.
Similarly,
it has been held that it is wrong to permit a witness to refresh his memory
from a document which he had made two months after the occurrence of the
matters recorded therein – Sunday Oyinlola v. Commissioner of Police
(1975) N.N.L.R 36.
A
witness may also testify to the facts mentioned in any such document as is
mentioned in section 216 of the Evidence
Act above, although he has no specific recollection of the facts
themselves, if he is sure that the facts were correctly recorded in the
document – section 217 of the Evidence
Act.
Any
document which has been used by a witness to refresh his memory must be
produced and shown to the adverse party, if the adverse party requires it, and
the adverse party if free to cross-examine the witness based on the document – section 218 of the Evidence Act, and to
tender it if he so wishes, but such a document cannot be tendered in
examination-in-chief – Owanso Agbeyin v. The State (1967) N.M.L.R
129; David Ifenedo v. The State (1967) N.M.L.R 85 at 88 S.C.
EXPERT EVIDENCE
This is one
of the exceptions to the rule of opinion evidence. Under the Evidence Act,
opinions of expert witness are admissible.
Under section 57 of the Evidence Act, experts
are defined as those specially skilled in matters of foreign law, native law or
custom, science or art, identity of handwriting or finger impressions, and
their opinions are declared to be relevant by the Act and therefore admissible.
In Aigbadion
v. The State (1999) 1 NWLR (Pt. 586) 173, the court stated that the
term ‘expert’ is elusive because there is no guideline from the statutory
provisions on how to identify an expert with a degree of certainty. Following a
long line of decisions on the subject, the court maintained that there is no
provision that the special skill attributable to an expert must be acquired
through formal education professionally or otherwise. It is enough that the
person claiming to be an expert has the skill that he professes to have. The
party calling an expert witness has a duty to elicit from such a person in the
witness box, evidence of the basis of his claim as an expert. And it is the
duty of the opposing counsel where the circumstances are appropriate, to cross
examine the said expert incisively in order to raise doubt as to the witness
expertise.
(a)
Opinion on Point of Science or Art – Opinion of experts specially skilled in the area of
science or arts is relevant where the court is to form an opinion on a point of
science or art – section 57 of the
Evidence Act; Tittidabale v. Sokoto Native Authority (unreported) [1964] 1
Nigerian Law Journal page 123. The term science and art are used
broadly and include determination of cause of death or the distance from which
the fatal missile was launched both of which have been held to be within the
competence of a medical doctor – Oguonzee v. The State (1998) 5 NWLR (Pt. 551) 521.
(b)
Opinion as to foreign law – Where the court is to form an opinion of foreign law,
the opinion of experts acquainted with such foreign law is relevant – sections 57 & 58 of the Act. But
note that a person need not be a legal practitioner to be qualified as an
expert in foreign law, he only need to be acquainted with such law – Ajani v. Comptroller Of Customs (1952) 14 WACA 34. It was held by an English Court in Brailey v. Rhodesia Consolidated Ltd. (1910) 2 CH 95, that a reader in the Roman-Dutch law to the Council
of Legal Education in London was an expert in Roman-Dutch law.
(c)
Opinion as to native law and custom – By sections 57
and 59 of the Evidence Act, the opinion of native chiefs and other persons
having special knowledge of native law or custom are relevant whenever the
court is to form an opinion on a point of native law and custom (Customary
Law). Also books and manuscripts recognized by natives as legal authority are
also relevant for this purpose – Adedibu v. Adewoyin (1951) 13 WACA 191.
(d)
Opinion as to handwriting – Opinion of experts as well as non-experts is relevant
where the court is to form an opinion as to handwriting. Expert opinion in this
case is covered by section 57 of the
Evidence Act and would include evidence of persons specially skilled in
identity of handwriting.
Non-expert is covered by section 61 of the Evidence Act and could be given by a person
acquainted with the writing in issue. For when a person is said to be
acquainted with a handwriting, the court may compare a disputed handwriting
with one admitted or proved to have been written by that person – section 108 of the Evidence Act; Teich
v. Northern International Market Ltd. (1987) 4 NWLR (Pt. 56) P. 441.
The court may also extract from a person present in court any writing or finger
impression for the purpose of such comparison provided that such extracted
finger impression must be destroyed at the end of the proceedings.
It should be noted that skill is not
necessarily by academic qualification or training but also by experience – Shell Petroleum Development Co. (Nig) Ltd. v. Tiebo (1996) 4 NWLR
(Pt. 445) 657. Although the court will normally accept an
uncontradicted expert evidence – Siesmograph Service (Nig) Ltd. v. Akpororo (1974) 6 SC 119, it will
not be bound to do so where such opinion conflict with common sense – Okoh
v. The State (1971) NMLR 140, or where the expert fails to state
the basis of his opinion – Idudhe v. Eseh (1996) 5 NWLR (Pt. 451) P. 750.
It should be noted that where the
document is made by an illiterate, it must also satisfy the provisions of the illiterate Protection Law
requiring jurat for it to be admissible. Otherwise the document cannot be
admitted against the illiterate but may be admitted at his instance – Barclays Bank v. Hassan (1961) All NLR 836.
CROSS-EXAMINATION OF
EXPERT
If the witness is an expert, the following points should be noted when
engaging him in cross-examination:
1.
Avoid details relating to theory
2. Where
more than one set of facts lend support to an opinion, be careful, and
skillfully elicit those facts favourable to your case only.
3. Do not give the expert the luxury of
explanation for the basis of his conclusions.
4. He should be confronted with other opinion by
another expert in the same field so as to contradict him.
5. Confront him with relevant authorities such
as published works so as to weaken the validity of inferences that can be drawn
from proved facts.
6.
If his opinion has to do with the functioning of
a machine or the operational process of an organization, try to have a working
knowledge of these, so that you can confront him with cold facts in order to
contradict him in regard to the basis of his conclusion.
ADMISSIBILITY OF DOCUMENTARY EVIDENCE
Under section
2(1) of the Evidence Act, document was defined as:
“includes,
books, maps, plans, drawings, photographs and also includes any matter
expressed or described upon any substance by means of letters, figures or marks
or by more than one of those means, intended to be used or which may be used
for the purpose of recording that matter”
The contents of a document must be proved by
the production of the document in evidence and this is the combined effect of
sections 76, 94 and 96 of the Evidence Act.
The admissibility of documentary evidence
is however under section 91 of the
Evidence Act.
Section 91(1) provides
thus:
“In any civil proceedings where direct oral
evidence of a fact would be admissible, any statement made by a person in a
document and tending to establish that fact shall, on production of the
original document, be admissible as, evidence of that fact...”
A statement in a document is admissible if
it was made by a person having personal knowledge of the matter contained in it
or if it was made in compliance with a duty to record it, subject to the other
provisions laid down under the section.
CRITERIA FOR ADMISSIBILITY OF DOCUMENTARY
EVIDENCE
Generally,
three main criteria govern the admissibility of documents as evidence. These
criteria are stated in the case of Okonji
v. Njokanma (1999) 12 SCNJ 259 at 273. The criteria are as follows:
1)
Is the document pleaded?
2)
Is it relevant to the enquiry being
tried by the court”
3)
Is it admissible in law?
CONFESSIONAL STATEMENTS
Section
28 of the Evidence Act
provides that a confession made by an accused person is irrelevant in a
criminal proceeding, if the making of the confession appears to the court to
have been caused by any inducement, threat or promise having reference to the
charge against the accused person, proceeding from a person in authority and
sufficient, in the opinion of the court, to give the accused person grounds
which would appear to him reasonable for supposing that by making it, he would
gain any advantage or avoid any evil of a temporal nature.
The voluntariness of a
confessional statement must be settled first before the issue of admissibility
is considered. The onus is on the prosecution to establish beyond reasonable
doubt that the confession is voluntary; the onus never shifts.
For the court to
satisfy itself that the confession was voluntarily made, some conditions must
be fulfilled and indication of that voluntariness must come from the accused
person himself.
a.
A
confession must be direct and positive, not equivocal.
b.
Confession
must be by the accused person himself, not by his counsel.
c.
Confession
must be to a person in authority.
d.
Confession
must be voluntary.
e.
Confession
must be made after the commission of a crime, though it may be before the
accused was charged.
f.
Denial
(which is different from voluntariness) of a confessional statement does not
render it inadmissible.
g.
When
a confessional statement is admitted, the exculpatory part must also be
admitted. The Court is free to accept or
believe which portion of it and reject another if, for good reason, the course
of action is warranted by clear evidence.
When an accused person
simply denies an extra-judicial statement he made, then such a statement is
simply regarded as a statement that had been denied; it can still be admitted
in evidence as part of the prosecution evidence. It depends on the weight the
court will attach to it. If the
prosecution does nothing in the face of such denial then the court will attach
no weight to it. It will be worthless but that can only be determined at the
end of trial.
But if the accused
person said I did make the statement but
the Police officer so and so asked me to write the confessional statement and
if he refused, he would be dealt with; a reasonable inference is that
pressure had been put on him to write the statement and, of course, the judge
or magistrate has a discretion under the law to clarify whatever responses that
the accused might have made and if there is indication of involuntariness in
the statement made by the accused, the court has a duty to conduct what is
called a trial within trial to ascertain the fact. If the accused person
merely denies the statement, a trial within trial is not necessary. It must be noted that the accused person’s
denial must be unequivocal.
It should be noted
that the standard of proof in a trial within trial is proof beyond reasonable
doubt. And once there is a trial within trial, the prosecution will now
recapture when this statement was made in order to satisfy the court that the
statement was voluntarily made.
On the other hand, the
accused may wish to remain silent in accordance with the provision of the
Constitution, in which case he would not be on oath. Where he swears on oath,
he may be liable to be cross-examined.
The aim of a trial
within trial is to ascertain the truth of the case before the court. At the end of the day, the court is expected
to give its ruling by indicating whether or not it is satisfied that the
statement was voluntarily made. Where the statement was involuntarily made, it
is obliged to reject the statement but where the court is satisfied that the
statement was voluntarily made, it is obliged to accept it and mark it as an
exhibit.
Where an accused
person denies a statement or recile a statement he had earlier made, the court
will still admit the statement and at the end of the day, the court will
evaluate the weight to be attached to the statement in determining whether that
statement can be relied upon. But if the
prosecution before the close of evidence calls evidence to contradict the
evidence of the accused person that he did not make the statement in question
voluntarily, the court will be able to predict the statement as voluntary made.
A statement
voluntarily made is admissible and the court can convict an accused person based
on it and there is no need for the statement to be corroborated. It must be
borne in mind that a confessional statement made by one accused person bind
only him. It can only be used against him and not the other accused persons. If
a statement made by an accused person implicates a co-accused, a co-accused is
entitled to cross-examine the accused on it.
POLICE REPORT
By section 36 of the Evidence
Act, where in the course of any criminal trial, the court is satisfied that
for any sufficient reason, the attendance of the investigating police officer
cannot be procured, the written and signed statement of such officer may be
admitted in evidence by the court if –
(a)
The defence does not object to the statement
being admitted; and
(b)
The court consents to the admission of the
statement.
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