This
is usually undertaken by the opposing party, that is, the party that did not
call the witness. The fact is that, if a witness had been sworn; but not
examined in chief, he can still be cross-examined by the opposing party. Cross
examination is not, however mandatory. Thus, where the facts testified to in
the examination in chief are formal or admitted, cross examination is not
necessary. In any case, if a witness is not cross examined, an admission of the
truth of his evidence by the opposite party is implied. There are two types of cross
examination; namely,
a.
Cross examination as to the issue; and
b.
Cross examination as to credit.
As
the name implies, cross examination as to the issue is called to elicit
statements/facts relevant to the fact in issue; which is favourable to the case
of the cross examiner. On the other hand, cross examination as to credit is
normally sub-divided into two, namely;
(i)
Cross examination as to credit; and
(ii)
Cross examination as to credibility.
The
idea behind cross examination as to credit is to suggest that the witness is
not trustworthy; hence his evidence should not be believed. Cross examination
as to credibility is almost the same as the last one. However, the distinction
or divergence is between trustworthiness and credibility. In cross examination
as to credibility, it is not suggested that the witness is lying; but that the
witness is for one reason or the other mistaken as to the facts in issue. Thus,
cross-examination as to credit can also be what we call cross examination as to
credibility.
Furthermore,
much freedom is given to the Counsel under cross examination. Leading questions
are allowed. Section 221(4) of the
Evidence Act 2011 provides that leading questions may be asked in
cross-examination. One can even make suggestions. You can also attack the
witness’ credit by saying that he is a liar or has had a criminal record.
However, the judge has discretion to at times restrain some unnecessary
questions. Moreover, section 224(1) of the Evidence Act 2011
states that if any question permitted to be asked under section 223 of this Act
relates to a matter not relevant to the proceeding, except in so far as it
affects the credit of the 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 it.
Similarly,
whereas section 227 of the Evidence Act 2011 provides that the court may forbid any question or inquiry which
it regards as indecent or scandalous although such questions or inquiries may
have some bearing on the questions before the court, unless they relate to
facts in issue or to matters necessary to be known in order to determine
whether or not the facts in issue existed; section
228 of the same Act is to the effect that the court shall
forbid any question which appears to it to be intended to insult or annoy, or
which, though proper in itself, appears to the court needlessly offensive in
form.
Again,
while the purpose of examination in chief is to obtain from the witness who is
being examined evidence in proof of the facts in issue, facts relevant to the
facts in issue, as well as facts which affect the admissibility of or weight to
be attached to such evidence; the scope of cross examination is much wider than
that of examination in chief. The main purpose of cross examination is to
elicit from the witness evidence which is favourable to the party cross
examining or which tends to disprove the case for the party who has produced
the witness. Its other purpose is to cast a doubt upon the accuracy of the
evidence already given by the witness.
In
other words, cross examination serves a dual purpose, because cross examination
is done to neutralize, weaken or demolish an opponent’s case and establish
one’s own case by means of the opponent’s witnesses. This is consistent with section 223 of the Evidence Act 2011
which highlights the objectives of cross examination by providing thus, “when a
witness is cross-examined, he may, in addition to the question referred to in
preceding sections of this Part, be asked any question which tend to —
(a) Test
his accuracy, veracity or credibility; or
(b) Discover
who he is and what is his position in life; or
(c) Shake
his credit, by injuring his character.
Again,
if any of those questions relate to a matter not related or relevant to the
proceedings, except insofar as it shakes the credit of the witness, the court
has the discretion whether to allow the witness to answer that question or not:
section 224 of the Evidence Act, 2011.
In
a nutshell, the point is emphasized that the purpose of cross examination is
either to obtain from one’s adversary facts favourable to a party’s case or to
weaken or demolish an opponent’s case. In respect of the former case, any
material fact to be elicited under cross examination must be pleaded, failing
which evidence in respect thereof is not admissible. In the latter case, it is
not necessary to plead such fact having regard to a wide range of matters on
which questions could be asked under cross examination.
Again,
in cross examination, there are special rules concerning previous inconsistent
statements and the finality of the witness’s answers to questions relating to
his credit. Of course cross examination as to credit is not a question directly
relevant to the issue. We shall examine some matters arising under cross
examination.
Matters Arising under
Cross-Examination
(1) Impeaching a Witness Credit
By
section 233 of the Evidence Act 2011,
the credit of a witness may be impeached in the following ways by any party
other than the party calling him or with the consent of the court by the party
who calls him;
(a)
By the evidence of persons who testify
that they, from their knowledge of the witness, believe him to be unworthy of
credit;
(b)
By proof that the witness has been
bribed, or has accepted the offer of a bribe, or has received any other corrupt
inducement to give his evidence; or
(c)
By proof of former statements
inconsistent with any part of his evidence which is liable to be contradicted.
These
ways of impeaching the credit of a witness apply only in cross-examination by a
party of his opponent’s witness. A party cannot impeach the credit of his own
witness except where there the witness is a hostile one, in which case, with
the consent of the court, the party may discredit that witness has provided
above.
(2) Previous Inconsistent Statement
Introductorily,
it is instructive to note that out of the three ways of discrediting a witness
stated above, the one that is most often applied in practice is the last one –
that is to say contradiction of a witness by previous statement. A piece of
evidence is inconsistent or contradictory when it affirms the opposite of what
that other piece of evidence stated; but not when there is just a minor
discrepancy between them.
A
witness may be cross-examined, under section
232 of the Evidence Act 2011, as to previous statements made by him in
writing or reduced into writing by someone else, on his behalf (example
depositions taken down in writing by examination Magistrates at a preliminary
investigation and statements made to the police not written by the witness
himself) and relative to matters in question in the suit or proceeding in which
he is cross-examined without such writing being shown to him or being proved,
but if it is, intended to contradict such witness by the writing, his attention
must, before such writing can be proved, or such contradictory proof given, be
called to those parts of the writing which are to be used for the purpose of
contradicting him.
But,
the consensus is that proof of former statement inconsistent with any part of
the present statement, is enough to discredit a witness. The significance of
this kind of discrediting of a witness is that his current evidence is
inconsistent with is previous statement and as such both cannot be correct.
Thus, the witness is either lying now or then. And whatever is the case, he
will be shown as a person of doubtful veracity.
This
is the purport of section 232 (supra),
which provides that a witness could be cross-examined as to any previous
statement by him or reduced into writing by someone else for him or on his
behalf and relevant to matters in question in the suit or proceeding. The
previous statement need not be shown to the witness and does not need to be
proved, except the intention is to impeach the credit of the witness. But, if
it is intended to contradict his evidence, the party wishing to do so must
first and foremost draw the attention of the witness to the circumstances in
which he made the statement. Additionally, the witness’ attention must be draw
to those parts of the statement which the cross-examiner wishes to use in
contradicting the witness. Lastly, if the intention is to impeach the credit of
the witness, the statement must be proved.
Again
if the witness denies even making the statement, then the statement must be
strictly proved. See the case of Aderemi
v State (1975) 9-11 SC 115 and Esene
v. Isikuwe (1998) 2 SC 87. Also, a cross-examining party may tender in
evidence and under cross-examination, records of proceeding of the trial court
as statement made in writing by the plaintiff or the witness to contradict or
discredit his present evidence on oath: Ipinlaiye
v Olukotum (1996) 6 NWLR (Pt. 453) at 158 and Yongbish v. Bulus 1997) NWLR (Pt. 489) 621.
(3) Finality of Answers in
Cross-Examination to Credit
The
big difference between cross-examination as to the issue and that as to credit
is that while answers to the former may always be contradicted with evidence
adduce later on, answers to the latter are usually final. However, a
distinction between these two types of cross-examinations is not always easy to
establish. It all depends on when a particular question will be relevant to the
issue and when we are taking of relevancy, it simply means that the evidence is
material to that issue: Onuka v. The
State (1997) 9 NWLR (Pt. 519) at 25.
Exception to the
General Rule on Finality of Answers in Cross-Examination as to Credit
Two
exceptions to this general rule are provided for in section 229 of the Evidence
Act 2011. The first is that if a witness is asked whether he has been
previously convicted of any crime and he denies it, evidence can be given of
this previous conviction. The second is that if a witness is asked any question
tending to impeach his impartiality and he answers it by denying the fact
suggested, he may be contradicted by evidence of such fact. The case of Thomas v. David (1836) illustrates the
point. In that case, in an action on Bill of Exchange; the witness was asked
whether she was the plaintiff’s mistress and she denied it. The court allowed
the defendant to call witnesses to prove this fact. Emoga v. State (1997) 9 NWLR (Pt. 519) 25 elaborately discusses this
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