oral evidence & cross-examination of witnesses

The court is not a court of fictions, it is one where real life event happens. The proceeding in a court is capable of deciding whether a person will live or die. All these are determined by the statement of witnesses in the proceeding. The justice or fairness of witness in this era is not certain and so it is necessary to strengthen their evidence with an oath.

An Oath is a commitment by a witness to tell the truth in a court proceeding. In fact the truth of the witness on oath is so sacred that if the witness is later found to have lied whilst bound by the commitment, the witness will be guilty of perjury or felony in the case of persons who are 14 years of age. See Sections 119, 191 and 205 Evidence Act, 2011; Criminal Code Act, Cap C38 LFN 2004, Maigari V. Bida (2002) FWLR (Pt. 88) 917 CA

Generally, evidence of a witness in a court proceeding has to be given on oath. However, where the witness has no religious belief or his religious belief is against oath taking, he will, as the irreducible minimum, he will be expected to give his evidence upon affirmation that his testimony is nothing but the truth. This will be done in line with the requirement of the Evidence Act.

Where the court receives evidence of witness not given upon oath, the court must record same and the reasons for accepting the evidence not given under oath in its record of proceeding. See section 205, 208(1)(2) Evidence Act, 2011.

Where a witness gives sworn evidence on oath, such witness swears to the oath in line with his religious belief. However, the fact that a witness gives evidence on oath even though he has no religious belief does not by reason of that fact alone makes the oath or the evidence invalid. The evidence of the witness is not affected. See Section 207 Evidence Act, 2011.

The most important question is who is a child? What is the age of the person regarded as a child under the Evidence Act? A person below the age of 14 years is a child below the law, and such person is not expected to give evidence on oath, or affirmation. However, as long as the court is satisfied that the child possesses sufficient knowledge and intelligence to justify the reception of his evidence and that the child understands the duty of speaking the truth, he will be allowed to give evidence in a trial. But where it is a criminal trial, an accused person cannot be convicted solely on the unsworn evidence of a child without corroboration by some other material evidence in support of the testimony.

So, a person who has attained the age of 14 years, even though a child, can give sworn evidence. However, the court relying on the child’s testimony must satisfy itself on the following:

That the child understands the nature of the oath;

Knows the duty of telling the truth and the consequences of telling a lie;

Possess sufficient knowledge to be able to understand the questions put to him to satisfy the reception of his evidence.

See Section 209(1-3) Evidence Act. 2011; Sambo V. State (1993) 6 NWLR (Pt. 300) 399 SC

Where the court fails to carry out the preliminary investigation or inquiry as stated above before accepting the evidence of a child as true, judgment based on the evidence will be set aside on appeal because such judgment cannot stand.

Firstly, a person cannot be convicted on the unsworn testimony of a child where the testimony is not corroborated.

Secondly, the preliminary inquiry or investigated is mandatory, as the court is expected to record in its record of proceedings how it came to the conclusion that the child knows the nature of an oath, but does not know the consequence of telling a lie. The failure of the trial court to carry out the inquiry is not a mere irregularity that can be waived but rather a fundamental irregularity which makes the court to disregard evidence so received and regard it as worthless.

Sambo V. State (1993) 6 NWLR (Pt. 300) 399 SC.; See Sections 205, 209 Evidence Act 2011; Surakatu V. Adekunle (2019) HELAR ratio 4

Evidence in chief affords the Plaintiff the opportunity to be formally introduced to the court, and for him to table his case before the court for the first time. It is an opportunity for the Plaintiff and his witnesses to state his case on oath, pleading his cause and adopting both his written deposition and the evidence he has in support of his case. The Plaintiff or his witnesses will be asked questions by the Plaintiff’s counsel, answers of which would introduce properly as the Plaintiff or Plaintiff’s witness, and still by questioning format get him to state his case and what evidence he has in support of his claims. After that he will be handed over to the Defence Counsel for cross examination on those his claims. The Plaintiff’s Counsel will again have an opportunity to re-examine his witness or his witness by which opportunity the counsel will try to clear any ambiguity or react to any fresh issues introduced by the Defence Counsel which the Plaintiff and his witnesses did not raise. See** Ayorinde V. Sogunro (2012) All FWLR (Pt. 636) 415.**

Evidence in chief affords the Plaintiff the opportunity to be formally introduced to the court, and for him to table his case before the court for the first time. It is an opportunity for the Plaintiff and his witnesses to state his case on oath, pleading his cause and adopting both his written deposition and the evidence he has in support of his case. The Plaintiff or his witnesses will be asked questions by the Plaintiff’s counsel, answers of which would introduce properly as the Plaintiff or Plaintiff’s witness, and still by questioning format get him to state his case and what evidence he has in support of his claims. After that he will be handed over to the Defence Counsel for cross examination on those his claims. The Plaintiff’s Counsel will again have an opportunity to re-examine his witness or his witness by which opportunity the counsel will try to clear any ambiguity or react to any fresh issues introduced by the Defence Counsel which the Plaintiff and his witnesses did not raise. See** Ayorinde V. Sogunro (2012) All FWLR (Pt. 636) 415.**

No, party need not as a matter of fact cross-examine a witness who has given his testimony (evidence in chief). The purpose of cross examination is to challenge, test or impeach the credibility of a witness who had given evidence in chief. However, where the testimony of such witness is self-contradictory, conflicting or does not in any way affect the other party, then cross examination is not necessary.

See 215(1) Evidence Act, 2011; Ayorinde V. Sogunro (2012) All FWLR (Pt. 636) 415.

No. The cross-examination of witness need not be confined to the testimony given by the witness during his evidence in chief. A party or his counsel need not ask question emanating from the witness evidence in chief. In fact, any question whatsoever can be asked the witness in order to discredit him. Although, it is important to note that such question must be relevant to the facts of the case before the court. As such, a question bordering on the promiscuous life of a witness will not be relevant to a suit where stealing is the fact. See section 215(2) Evidence Act, 2011.

A court has no discretion whatsoever to prevent a party from cross examining a witness after his evidence in chief except the party elects not to cross-examine. The right to cross examination is a constitutional right which is anchored on the principle of fair hearing. Judgment obtained will not be valid and will be set aside on appeal where it is evident that the court had deliberately refused to allow party the right to cross-examine.

Cross examination plays a vital role in the truth searching process of evidence procured by examination-in-chief, it relates to authenticity or veracity of the witness, a court of law is entitled not to place probative value on evidence which does not pass the test of cross-examination.

See Section 36 Constitution of the Federal Republic of Nigeria, 1999 (as amended); Buhari v. INEC (2008) 19 NWLR (Pt. 11200 246; Sa`eed v. Yakowa (2013) All FWLR (Pt. 692) 1674.

Where the testimony of a witness has been severally dealt with and discredited during cross-examination to the extent that the testimony of the witness is in doubt, the party for whom the witness testifies has the opportunity to allow the witness to restore the credibility of his testimony by re-examining the witness. It is important to note that the need for re-examination of witness will not be necessary where the cross-examination does no damage to the testimony of the witness given in chief.

See Sections 214(3) and 215(1) Evidence Act, 2011.

Generally, new facts cannot be raised during re-examination as an examination in chief affords the witness to dispose before the court all facts necessary to the suit. However, where the leave of court is sought and granted, then new facts may be introduced during re-examined upon such new facts and the other party will also be entitled to cross examine on the new facts introduced. See section 215(3) Evidence Act, 2011.

Credible evidence in this sense means that the evidence is worthy of belief. For evidence to be worthy of belief or credible, such evidence must not only proceed from a credible source, it must be natural, reasonable and probable in view of the entire circumstances of the case. The court will accept an evidence as credible when it is not into the realm of flamboyance or recklessness and petulance or appears as an affront to reason and intelligence.

Fatunbi V. Olanloye (2004) 12 NWLR (Pt. 887) 229 (at 247); AGBI V. Audu Ogbeh (2006) 11 NWLR (Pt. 990) p.65 (at 116).

Generally, evidence given in previous proceeding by a person who was not called as a witness in the present case is inadmissible except there is proper compliance with the provision of Section 46(1) Evidence Act, 2011 which include the following:

The proceeding was between the same parties or their representatives in interest;

The adverse party in the first proceeding had the right and opportunity to cross examine; and

The questions in issue were substantially the same in the first as in the second proceeding.

See Section 46(1) Evidence Act, 201; Owoyemi V. Adekoya (2003) 18 NWLR (Pt. 825) 307 (at 336).

Parties are expected to state their case in court in clear and logical terms. Where the evidence of witnesses of a party contradicts each other, this obviously will work against the interest of the party who called them. The trial judge is expected to remain neutral, not to jump into the arena of contest between the parties. It is not for the trial judge to display emotions, endeavour to find explanation for the contradictions in the evidence of the witnesses of a party. See Okeji V. Olokoba (2000) 4 NWLR (Pt. 654) 513 (at 530).

Answers obtained from a witness under cross examination from either the witness of the claimant or a co-defendant in the case is as good and admissible as the evidence obtained under examination in chief.

See INEC V. Ifeanyi (2010) 1 NWLR (Pt. 1174) 98 (at 118).

Of course. Evidence elicited from the cross-examination of a defence witness which is in line with the facts pleaded by the claimant forms a part of the evidence produced by the Claimant in support of the facts pleaded in the statement of claim and can be relied upon in proof of the facts in dispute between the parties.

See Adeosun V. Gov. Ekiti State (2012) 4 NWLR (Pt. 1291) 581 (at 600). Giwa V Anzaku (2019) HELAR ratio 1

Where a witness is unchallenged under cross examination, the court is not only entitled to act on it or accept such evidence but it is in fact bound to do so provided that such evidence in its very nature is credible. Thus, where no cross-examination is carried out by a party, the implication is that such party accept as true of that matter as led in the evidence in chief.

See **Oforlete V. State (2000) 12 NWLR (Pt. 681) 415 (at 436)Where a witness is unchallenged under cross examination, the court is not only entitled to act on it or accept such evidence but it is in fact bound to do so provided that such evidence in its very nature is credible. Thus, where no cross-examination is carried out by a party, the implication is that such party accept as true of that matter as led in the evidence in chief. See Oforlete V. State (2000) 12 NWLR (Pt. 681) 415 (at 436); Rabe V. FRN (2018) HELAR ratio 1 and 9; Igwenagu V. Hon. Min. FCT (2017) HELAR ratio 3

Where a witness deliberately refuses to answer or evades questions put to him during cross examination, the court can draw the inference that such a witness knows the truth and that the truth would be harmful to him. Such witness will not be seen as a witness of truth.

See Orianwo V. Okene (2002) 14 NWLR (Pt. 786) 157 (at 187)

The co-accused as a matter of fact enjoys a right to fair hearing. Fair hearing being that he has the right to cross-examine the accused person who implicates him. So also, where more than one defendant is charged for an offence at the same time, a witness called by one defendant has the right to be cross-examined by the other defendant. The fact that two or more persons are charged together for an offence does not in itself mean that the testimony of one of them binds the other co-accused person, except of course the testimony is adopted by the co-accused person. As a result, where the other co-accused persons are implicated by the testimony of the first accused, the co-accused has the right to destroy the credibility of the testimony by cross – examining him. See Section 217 Evidence Act, 2011; Adie V. State (2013) All FWLR (Pt. 684) 117-118; Nkosi V. State (1989) 2 SCNJ 183.

Not necessarily. Of course, the importance of cross-examination cannot be underestimated. A party can successfully prove his case upon a successful and effective cross-examination of the adverse party or his witness. However, this does not mean that a party’s success in a suit is based solely on cross-examination. The use of cross-examination is to contradict, destroy or water down the case of the adversary but a party’s case is made on his pleading and evidence in chief and not necessarily in cross-examination. See Onwumere V. Agwunedu (1987) 3 NWLR (Pt. 62) 673; J. O. Eze V. B.A. Elikwu (2007) 5 CLNR 131.

Not all information that a party extract from the adverse party or his witness during cross examination can be relied upon as evidence. For a party to successfully rely on the evidence extracted during cross examination, such evidence elicited during cross examination must relates to the facts pleaded and must be material to the case.

See Adeosun V. Gov. Ekiti State (2012) All FWLR (Pt. 619) 1059.

It implies that the question asked of a person under examination in chief or re-examination is suggesting a particular kind of answer. This is due to the nature of the questions asked. This type of question is called a leading question. It is a question which suggests the answer to be given or assumes a thing to be true which in fact is being yet disputed. Usually a counsel is not permitted to ask this kind of question to the witness called by him during examination in chief or re-examination except where the question are related to facts not disputed by the adverse party.

See section 221(1)(2) Evidence Act, 2011.

As stated before, leading question are questions put to a witness which suggest the answer the witness is to give. For instance, the question “your name is James?” is in fact a leading question as the witness is obviously expected to reply positively. Such kinds of question are usually not permitted in court during examination in chief and re-examination. Notwithstanding this limitation, leading questions can be asked in the following situations: During cross-examination and in all cases too;

During examination in chief or re-examination;

With the permission of the court.

With respect to facts which are introductory;

Facts which are undisputed;

Facts which has already been proved.

See section 224 Evidence Act, 2011

A leading question although not permitted during an examination in chief will nevertheless become a valid question where the other party does not object to the method in which the question was asked. A counsel is expected to object to a leading question once it is asked and not after the question has been answered. Once a leading question is asked without objection and same is answered the answer goes into evidence and the court is expected to rely on it in the evaluation of the case before it.

See Momo Garba & Anor. v. R (1959) 4 F.S.C. 162.

Where a trial court admits a document after hearing parties’ arguments; he cannot later reject the document when considering his judgment without also hearing the parties. For instance where a document is tendered by one party and objected to by the adverse party, and the judge proceed to admit same in evidence after hearing the submissions of both party, the judge cannot proceed to reverse himself on the admissibility of that document when considering judgment without hearing from both parties. Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 (at 201-202);

No. It is firmly established that were documentary evidence which is ordinarily inadmissible is admitted, the court should not consider it when giving judgment. In fact, the court has a duty not to act on it. A.G Leventis (Nig.) Plc. V. Akpu (2007) 17 NWLR (Pt. 1063) 416 (at 440); Surakatu V. Adekunle (2019) HELAR ratio 4 and 5

The major test which the court use in determining whether an evidence is admissible or not is:

Relevancy: such evidence must be relevant. Such relevancy however must not be too remote.

Such evidence must be one of fact which is material in all circumstance to the case. Importantly, the determining factor as to whether an evidence is admissible or not is not how the evidence is obtained, but whether or not the evidence is relevant, and whether it is in the right form, that is whether it has satisfied any legal condition precedent.

See Section 1 Evidence Act, 2011; Aregbesola V. Oyinlola (2011) 9 NWLR (Pt. 1253) 458 (at 572); Ajaegbo V. The State (2018) HELAR ratio 5

Yes, where a judge admits a piece of evidence that is wrongly received or where a piece of evidence which goes to no issue has been mistakenly admitted, the trial judge is under a duty to disregard it when considering his verdict.

See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 (at 202); UBA Plc. V. Ayinke (2000) 7 NWLR (Pt. 663) 83 (at 100); Surakatu V. Adekunle (2019) HELAR ratio 4 and 5

Yes, notwithstanding that the counsel of the adverse party did not object to the evidence, the court is duty bond to disregard the piece of evidence. This is because neither the court or the parties to the suit has the power to admit even without objection a piece of evidence that is in no way admissible in law.

See Haruna V. Kogi State House of Assembly (2010) 7 NWLR (Pt. 1194) 604 (636 - 637); Surakatu V. Adekunle (2019) HELAR ratio 4 and 5