witness statements

In acting as a witness in court proceedings, no specific category of persons is classified as the only competent person who can testify as witness in court. Amazingly, all persons are competent to testify as witness in court, even persons of unsound mind. However, the competence of any person to testify as a witness in court will be put in doubt where the court considers that such persons are prevented from understanding the question put to them or even when they understand the question, they are unable to give rational answers to the questions asked as a result of extreme old age, tender years, disease of the body or mind, unsound mind. See Section 175 Evidence Act, 2011; Elebanjo V. Tijjani (1986) 2 NSCC 1367 SC Asanya V. The State (1991) 3 NWLR (Pt. 180) 422.

A witness is not incompetent by reason only that he is unable to speak. It will be discriminatory if this is ever contemplated. See Section 42 Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Where a witness is unable to speak, such witness may give evidence in any other manner as long as such manner is intelligent. He may give evidence in writing or by sign both of which must be done in an open court. Evidences of dumb persons are taken as oral evidence. See section 176 Evidence Act, 2011.

One witness is sufficient to get judgment. What is important is that the testimony of the witness is credible, relevant and has probative value upon which the court can rely on in giving judgment. Although preponderance of evidence is a strong factor influencing the mind of the trial judge, yet the number of witnesses holds no much significance over the quality of evidence adduced from a minimum number. However, there are instance where the testimony of one witness alone will not be sufficient for judgment. For instance, an offence of sedition, treasonable felonies, concealment of treason or the promotion of inter-communal war, single evidence of a minor in defilement case.

See Sections 200, 201 and 204 Evidence Act, 2011. Sections 40, 41, 42 and 51 Criminal Code Act, Cap. C38 LFN 2004. Adamu v. The State (2017) HELAR ratio 4; Bassey V. The State (2019) HELAR ratio 7 Similarly, a person cannot be convicted of committing or procuring the commission of perjury on the testimony of one witness which is not corroborated, contradicting the oath on which perjury is assigned. So also where a person is charged for driving at a higher speed than the allowed maximum, such person cannot be convicted solely on the evidence of one witness. Except where the witness is a duly authorized officer who was at the time of the commission of the offence, the officer was operating any mechanical or electronic device for the recording of the speed of a moving vehicle. Then tending the device together with the testimony of the duly authorized officer will be sufficient. See Section 200, 201 and 204 Evidence Act, 2011; Ogu V. C.O.P (2017) HELAR ratio 6

Absolutely. Evidence given by a witness in an earlier judicial proceedings or before any person authorized by law to take it, is relevant for the purpose of proving the truth of the facts which it states in a subsequent judicial proceeding especially when the witness is dead, cannot be found, is incapable of giving evidence or is kept out of the way by the adverse party or when his presence cannot be obtained without an amount of delay or expenses which in the circumstance of the case, the court considers unreasonable. See Dada V. Bankole (2008) All FWLR (Pt. 403) 1209; Ajibare V. Akomolafe (2013) All FWLR (Pt. 672) 1736.

Mistake of a witness under trial is not enough to amount to contradiction that affects his credibility as a witness in the suit. For any contradiction to affect the credibility of a witness, such contradiction must be a material contradiction. That is, it must go to the essentiality of the material facts in issue. See Ikuepenikan V. State (2011) 1 NWLR (Pt. 1229) 449;Ajinare V. Akomolafe (2013) All FWLR (Pt. 672) 1741; Utu V The State Of Lagos (2019) HELAR ratio 3

A vital witness is one whose testimony is crucial and will determine the facts of a case one way or another. Failure to call a vital wiliness is very fatal. It has the dark effect of non-discharge of proof of a particular fact of the person who is to rely on the testimony of the said witness. See State V. Azeez (2008) 14 NWLR (Pt. 1108) 439; Babarinde V. State (2013) All FWLR (pt. 662) 1776; Rugbere V. UBA Plc (2017) HELAR ratio 2

The purpose and duty of the court is to see that justice is done. Where parties to a suit lay before the court their grievances and calls evidence in support of same, the court is duty bound to properly evaluate all evidences of the parties before it. The court is expected to base its decision on the evidence of the parties and must give reasons for his decision. Where however, it is evident that the court failed to evaluate properly the evidence of the parties and such non evaluation occasioned a miscarriage of justice, the judgment given by the court may be set aside on appeal. However, such evidence must be material and relevant to the facts of the case.

See Sele V. State (1993) 1 NWLR (Pt. 267) 276; Nwachukwu V. Egbuchu (1990) 3 NWLR (139) 435; Ugbu V. Ikerechi (2013) All FWLR (Pt. 663) 1992; JK NIG. LTDV. UBA PLC (2020)HELAR ratio 3

The nature of the oral evidence of witness in a proceeding is in all cases direct. If the evidence for instance refers to a fact which could be heard, then the evidence of the witness must be one who says he heard such fact. So also it is with respect to evidence of facts seen. The evidence of the witness must be one who says he saw such facts. A person cannot claim to be a witness in a case but only testifies to what he had not seen or heard. Such will amount to hearsay, and hearsay evidence is generally not admissible. See Eyop V. State (2013) All FWLR (Pt. 681) 1604.See also section 125 and 126 Evidence Act, 2011.

The position the court will take in this instance, will depend on the nature of the suit before the court. Is it a criminal matter or a civil matter? Where a witness gives evidence in court which is inconsistent with a previous statement made by him in respect of the same issue, the testimony will be treated as unreliable while the statement will not be regarded as evidence upon which the court can act. However, where the statement is a confession by an accused person who gives inconsistent oral testimony denying or retracing his prejudicial written confession. His earlier statement of confession of committing the crime which conflicts with his evidence in court will not be rejected but rather more specifically assessed and considered to confirm that it was voluntarily made, that it is positive, direct and in accord with other proved facts. It will be relied upon after being so confirmed. See Eyop V. State (2013) All FWLR (Pt. 681) 1608.

The court has not such duty to disturb itself with choosing or picking the evidence of any witness called by a particular party to a suit where two or more witnesses testimony contradict each other. In fact, the court would rightly dismiss such suit. Where witnesses called by a party contradict one another, the court cannot pick and choose which one to believe and which one to disbelieve. See Muka V. State (1976) 10-11 SC 305.Doma V. INEC (2013) All FWLR (Pt. 706) 596; Ishaya V. The State (2019) HELAR ratio 3

Where a witness called by a party gives evidence against the party, the evidence will be regarded as one against his interest. The trial court will rely on the evidence of the witness against the party who called him. However, where a party is faced with such situation, the party is expected to apply to the court to declare such witness as a hostile witness and to expunge all evidence given by him in the course of the proceeding.

See Bamgbose V. Oshoko (1988) 5 SCNJ 122; Odi V. Iyala (2004) All FWLR (Pt. 207) 570; Nwoba V. Ikeokwu (2017) All FWLR (Pt. 912) 612.

Documentary evidence is very crucial. Although, oral evidence of a witness when uncontroverted, credible and logical is very effective evidence, documentary evidence however is the hanger upon which oral evidence is assessed. Where documentary evidence supports oral testimony, such oral testimony becomes more credible. However, oral evidence will stand alone once uncontroverted, relevant and admitted. It needs no document for it to be effective.

See Jolasun V. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Nwoba V. Ikeokwu (2017) All FWLR (Pt. 912) 612.

The appellate court is very careful and will indeed not interfere with the fact found by the trial court based on the credibility of witness except it is shown that the trial court erred to the extent that it occasioned a miscarriage of justice in its finding and relying on such fact. This is because, the trial court sees and hears the witness, as such, it is in the best position to comment on the demeanour and credibility of the witness.

See Ebenezer V. State (2017) All FWLR (Pt. 891) 977-982; Afolalu V. State (2011) All FWLR (Pt. 538) 812; Uglianyi V. FRN (2012) Vol. 49 (Pt. 1) NSCQR 1243; Ehinle V. Ikorodu Local Govt Area (2020)HELAR ratio 7; Utang v The state (2020)HELAR ratio 2 and 3; Ekweozor V. REG. Trustees of SACN (2020)HELAR ratio 6 and 4

In evaluating the piece of evidence placed before it by the parties, a court of law usually considers the totality of the evidence led by the parties. It then places it on an imaginary scale of justice to see which of the two sides weigh more credibly than the other. The onus is on the judge as an umpire to act objectively in the process of arriving at a just evaluation of evidence for the purpose of achieving the ultimate end result. See Boukoro V. Erefiyai Eweke (2017) All FWLR (Pt. 894) 1554;Anekwe V. Nweke (2014) All FWLR (Pt. 789) 1154; Bankole V. Denapo (2019) HELAR ratio 4; SCC NIG. LTD. V. GEORGE (2019) HELAR ratio 3

It does not lie in the mouth of the party in a proceeding to urge the adverse party to call a particular witness. A party can call only one witness or might decide not to call any. It is his choice. At no stage in the proceeding is a party required to urge the adverse party to call a particular witness.

See Akinbami V. State (2017) All FWLR (Pt. 897) 2036; Azoryeme V. State HELAR ratio 7; Idagu V. State (2018) HELAR ratio 13

The power of the court is enormous. The court has the power to summon witnesses at any stage of the proceeding either at its own discretion for clarification purpose with the consent of the other party or at the instance of the parties.

See Section 36(1)(2) Constitution of the Federal Republic of Nigeria 1999. Section 237(1) Evidence Act, 2011; Ado V. State (2017) All FWLR (Pt. 897) 1960-1961

When a witness deposition is adopted, it becomes evidence in chief and the documents as analysed and incorporated in the statement on oath once tendered and without any objection becomes evidence in the trial. As a result, the court is bound to dispassionately and discreetly assess and evaluate them and draw them before arriving at its judgment. See** Uzu V. Ogbu (2012) LPELR – 9775;Agagu V. Mimiko (2009) All FWLR (Pt. 462) 1122.; Maku V. Aemakura (2017) All FWLR (Pt. 909) 73.**

Not really. Although where evidence of a witness contradicts his earlier statement in a previous proceeding, neither the evidence nor the witness is ascribed any probative value or credibility where such contradiction is material to the fact of the case. He is seen not be a witness of truth, one that cannot be relied upon. However, this does not mean that the whole testimony of the witness is thrown away as untrue. Where the witness makes a statement covering several aspects, the court will reject the part that contradicts his earlier statement while the other parts touching on the material issues joined that is not contradicted is accredited by the court. This is because of the principle that a witness can be believed in part.

See Salami V. Ajadi (2012) All FWLR (Pt. 615) 294.; Ayanwale V. Atanda (1988) 1 NWLR (Pt. 68) 22.; Oyeneyin V. Akinkugbe (2001) 1 NWLR (Pt. 693) 40. Rev. Prof. Paul Emeka V. Chidi Okoroafor (2017) LPELR – 41738; NWANKWOALA v FRN (2018) HELAR ratio 6

Contradictions in evidence of witness of one party does not automatically and as a matter of fact avail the opposite party. That is, the fact that one party has contradicted himself during trial is not enough to work in the favour of the opposite party. For this contradiction to avail the opposite party, the contradiction must be material, relevant, substantial, and must affect the live issue in the matter. In fact, it must be so substantial to the extent that if the opposite party raise the contradiction as an issue on appeal, the contradiction must affect the fortune of the appeal in favour of the opposing party raising the issue.

See Salami V. Ajadi (2012) All FWLR (Pt. 615) 293-294.; Onubogu V. State (1974) 9 SC 1; Mogaji V. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) 393; Osinowo V Nigerian Navy (2019) HELAR ratio 3;

Whether a counsel beautifully couch his submissions and makes it very alluring, such submissions cannot take the place of evidence already established during trial. Also, where a party to a suit does not capture a particular fact in his pleading, such party obviously cannot rely on the fact not pleaded to establish his case and this cannot be remedied even by a very alluring, captivating and persuasive written submission of a counsel. This is because, a counsel’s written brief, no matter how brilliantly written and how alluring, cannot take the place of evidence.

See Bello V. N.B.N (1992) 6 NWLR (Pt. 246) 206; Ishola V. Ajiboye (1998) 1 NWLR (Pt. 532) 71; Ayanwale V. Odusami (2012) All FWLR (Pt. 610) 1255; Oduah V. Okadigbo [2019] HELAR ratio 3, SulemanV. Ukana(2019 ) HELAR ratio 2

A tainted witness is one who may have a purpose of his own to serve. A tainted witness may or may not be an accomplice in a suit. In fact, he may have no interest or gain in a suit but he has a purpose to serve. Usually, he alone knows of this purpose. The evidence of such witness is treated with considerable caution. In fact, the court is enjoined to examine his evidence with a “tooth comb”. The court usually cautions itself before relying on the evidence of a tainted witness. See Ebong V. State (2012) All FWLR (Pt. 653) 1994-1975; Idagu V. State (2018) HELAR ratio 11 A tainted witness is one who when called to give evidence at trial may refuse to speak the truth not necessarily because he is a party in a suit but because he has a hidden agenda. For instance where a person is called to give false evidence in trial for monetary gain. Idagu V. State (2018) HELAR ratio 11

It is not a matter dictated by law that a judge must caution himself when relying on the evidence of a tainted witness. In fact, it is a matter of prudence. This does not mean however, that a judge can rely on the evidence of a tainted witness without cautioning himself. As a matter of fact, the judge must reflect such caution in his records. Any judgment issued by the court will be set aside on appeal where it is evident that the judge relied on the evidence of a tainted witness without the appropriate caution.

See Ebong V. State (2012) All FWLR (Pt. 653) 1994-1975.; Mbenu V. State (1988) 7 SC (Pt. 111) 71

Where it is evident that as a result of the protracted nature of a suit there appears to be some minor differences in details of a witness during trial and his previous statement, this alone does not amount to contradiction as it is expected that due to the prolonged nature of the case, there is the real likelihood that the memories of the witness will have faded to some extent. However, where a witness piece of evidence affirms the opposite of his previous statement, such amount to a contradiction. Two pieces of evidence contradict each where they are by themselves inconsistent. Contradiction must be resolved before judgment is given. It is the court who decides whether contradiction exists and if there were, the court must take it into consideration in the evaluation of the evidence of the witness.

See Ochiba V. State (2012) All FWLR (Pt. 608) 1002.; Garko V. State (2006) 6 NWLR (Pt. 977) 524; Idagu V. State (2018) HELAR ratio 9

How relevant is the evidence of a witness in an earlier proceeding to a later trial?

Generally, a party who has “closed his case” as the name implies has already ended his case. Such party cannot logically be expected to recall a witness after the close of his case. However, this is not total as a party can recall a witness after the close of his case as long as he seeks and obtains the consent of the other party with the leave of Court. Where however a party recalls witness after the close of his case without the consent of the other party who himself raises no objection, then the other party can make no complains as to the recall of such witness.

See Ojiegbe V. Ubani (1961) 1 All NLR 227; Evoyoma V. Daregbe (1968) NMLR 389; Lambu V. Isyakau (2012) All FWLR (Pt. 640) 1328; Eze v. Ene (2017) HELAR ratio 4

A trial judge has no powers to call or recall witness on his own motion or without the consent of the opposing counsel or parties. This is because the trial judge is expected to remain as an impartial umpire throughout the proceedings.

See Bellham V. Bellgam (1965) NMLR 245; Omoregbe V. Lawani (1980) 3-4 SC 108; LAMBU v. Isyakau (2012) All FWLR (Pt. 640) 1328; Kajawa V. The State (2018) HELAR ratio 2

A case is not lost solely on the ground that those who are witnesses are members of the same family or community. What is important is their credibility and that they are not tainted. A witness is not tainted because he or she relates to a party in a suit. This is because justice will be defeated if the prosecution of any case can only commence when and only when the witness are neither related to a party nor are non-members of the same family. As a result thus, for instance, the wife of a deceased testifies against an accused person, the court will rely on it to convicts the accused person. Being related to the deceased is not enough ground to classify the wife as a tainted witness.

See Afosi V. State (2012) All FWLR (Pt. 612) 1736.; Adekoya V. State (2011) 12 WRN 127; Chukwu V. State (1991) 1 NWLR (Pt. 217) 255; Adekoya V. The State (2017) HELAR ratio 4

Where the evidence of a witness is not challenged either during Cross-Examination or in any form, that piece of evidence automatically becomes an issue upon which the court may rely on. When a counsel stands by and allows the evidence of the witness to sail through without batting an eyelid, then it becomes obvious that the counsel is comfortable with the evidence of the witness and sees no reason to challenge its admission. In such a case he is deemed to have admitted what the evidence purports.

See Hassan V. Tade (2012) All FWLR (Pt. 612) 1776; UBA Plc V. Meridiens SAS (2017) HELAR ratio 3;

No. The court frowns greatly at this as a party cannot be allowed to approbate and at the same time reprobate. A party cannot reject an evidence in the first instance and then proceed to rely on same.

See Ilorin East Local Government V. Alasinrin (2012) All FWLR (Pt. 645) 251; Olaiya V The State (2017) HELAR ratio 4; C & C Bricks Dev. Co. Ltd v. Min. of Env. H & U Dev. (2019) HELAR ratio 1