Examination of Witnesses

Evidence in court is obtained through an orderly process called ‘examination’ and this is usually done by taking oral testimony from the witnesses. The testimony of a witness at any stage of his examination may be in one of these three forms namely; Evidence in Examination-in-Chief, Evidence in Cross Examination and Evidence in Re-Examination. Examination-in-Chief is the examination of a witness by the party who called him –section 214(1) of the Evidence Act 2011. Cross-examination of the witness is examination by a party other than the party who calls him- section 214(2) of the Evidence Act 2011. This is necessary examination by the adversary. Lastly, a re-examination is a second examination of the witness by the party who calls him after he has been cross-examined: subsection (3) of section 214 of the Evidence Act, 2011. Section 215(1) of the Evidence Act 2011, reinforces the forgoing by providing that witnesses shall be first examined-in-chief, then, if any other party so desires, cross-examined, then, if the party calling him so desires, re-examined. We shall discuss these variants of examination of witnesses serially.

Examination-in-Chief

Examination-in-Chief refers to the examination of a witness by the party who calls him. It is the opening part of a witness’s testimony and starts after he has been sworn or affirmed. A witness called by a party will be put through a series of questions by counsel in attempt to elicit material evidence from him to substantiate facts made by the party who called that witness.

The most important object of this exercise (which of course is the opening party of a witness’s testimony) is to elicit form the witness, evidence which is favourable to the case of the party that invited him. Examination-in-Chief starts after a witness has been sworn or has affirmed. In Examination-in-Chief, questions must be restricted or confined to evidence directly relevant to the fact in issue. Questions relating to the witness’s credit are not allowed.

It is also a fundamental rule in Examination-in-Chief, that leading questions are not allowed or asked, and if a leading question is asked, the opposing party has the right to object to its being admitted. But, a leading question can be asked if the court permits it: section 221(2) of the Evidence Act, 2011. By section 221(1) of the Evidence Act, 2011, any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question. Thus, a leading question is one that suggests the desired answer. It may be allowed in matters which are introductory or undisputed or which in the courts opinion have already been sufficiently proved: section 221(3) of the Evidence Act, 2011. It may also be allowed in order to refresh the memory of the witness. Lastly, questions assuming the existence of a disputed fact are permitted or allowed.

Matters Arising in Examination-in-Chief:

1.     Refreshing Memory

As a general rule, a witness is not allowed to give evidence by reading from a prepared statement or note. They are expected to give evidence direct from memory unaided by any external material. However, if certain conditions are met, they are allowed to read from a prepared document in court to refresh memory before answering certain questions. The first condition to be met is that the document to be used to refresh memory must have been made substantially at the same times as the occurrence of the event in which the witness is now giving evidence: Oyinlola v R & Amao v R.

In Amao v R. (1959) 4 FSC 112, the trial court allowed a witness to refresh his memory by reading to him his own deposition at the preliminary investigation which was taken five weeks after the incident in which he deposed to. The Federal Supreme Court held that the Judge erred in allowing the witness to so refresh his memory. The case of Oyinlola v COP (1975) NNLR 36 is authority for the proposition that is was wrong to allow a witness to refresh his memory from a document he had made two months after the transaction in question. This is consistent with section 239(1) of the Evidence Act, 2011 which states that a witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory.

Secondly, the document must have been made by the witness or under the supervision or direction of the witness or was made by another person; but was read by the witness and he knew it to be true or correct. This is the purport of section 239(2) of the Evidence Act, 2011, which provides that the witness may also refer to any such writing made by any other person, and read by the witness within the time mentioned in subsection (1) of this section, if when he read it he knew it to be correct. The case of R v Simmond (1967) 51 Car P. 316 at 330, establishes the fact that the making of the document must be contemporaneous with the testimony of the witness.

A witness may also testify to Facts in such documents mentioned in section 239 of the Evidence Act 2011, even though he does not recollect the fact himself. But, he must be sure that the facts were correctly recorded. Authority for this proposition is section 240 of the Evidence Act which states that a witness may also testify to facts mentioned in any such document as is mentioned in section 239 of this Act, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

The third condition is that the document should be produced to the court or the opposite party on demand by the opposite party. In this connection, section 241 of the Evidence Act, 2011, provides that any writing referred to under sections 239 and 240 of this Act, shall be produced and shown to the adverse party if he requires it, and such party may, if he pleases, cross-examine the witness upon the writing.

Lastly, the document must be the original copy. It is instructive to note that the maker of the document need not be the witness who wants his memory to be refreshed and does not need to be a witness at all. In Borrough v Martins (1809) 2 CAMP 112, a witness was allowed to refresh his memory from a ship log which was made under his super vision. It was held that, the equivalent of this section under the English rule has been complied with. Also, note that a witness who is an illiterate cannot refresh his memory from a log book made at his dictation for he can neither write nor can he read the contents after dictating same.

2.     Discrediting One’s Own Witness

Section 230 of the Evidence Act 2011 provides for discrediting one’s own witness. Section 230 of the Evidence Act 2011, provides that the party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may in case the witness shall, in the opinion of the court, prove hostile, contradict him by other evidence, or by leave of court, prove that he has made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances or the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he has made such statement.

Thus, if the witness proves unfavourable, he may be contradicted by other evidence relating to the fact in issue by calling other witnesses or evidence. Note that the witness must prove unfavourable before he can be contradicted. If the witness turns out to be unfavoursble, treating him as a hostile witness is not automatic the Counsel must first seek and obtain the leave of the court for the witness to be so treated and once leave is obtained, the hostile witness can then be cross-examined or asked about his previous statements he had made which is inconsistent with his present testimony. His credit could be impeached eventually by cross-examining him with a view to discrediting his hostile testimony.

3.     Who is a Hostile Witness

A witness is considered to be hostile when in the opinion of the court he bears hostile animus to the party that called him to testify and then does not give him evidence fairly with a desire and intention to tell the truth: Isong v R. (1976) 11 SC 93 & S. O. Esan v The State (1976) 11 SC 93. To treat a witness as hostile, application must be made to the court and the court’s decision is final. In forming its opinion on the matter, the court may consider the manner in which the witness testified, for example, judging from his demeanor, attitude or disposition towards answering questions as reflected in the reticence in his answers or acute over-zealousness to pre-empt further questions: Ilouno v Chiekwe (1991) 2 NWLR 316.

In K’line Incorporated v K. R. International Nig. Ltd. (1993) 5 NWLR (Pt.159) 105, it was held that the law allows a party to discredit his own witness if he applies to the court to treat him (the witness) as a hostile witness. Once this application is successful, the witness is treated as a hostile one and the procedure is consistent with a declaration of overt enmity. The witness then will be cross examined with a view to discrediting him. The previous statement of the witness must be put to the witness. And then he must be asked whether he made such statement.

These circumstances must be proved before the witness is permitted to be discredited. Please note that, if it is in writing, the statement must be shown to the witness or read to him. Once, the circumstances of the previous statements are proved, it does not necessary become part of the evidence, but must be disregarded. In other words, the testimony cannot be admitted. Accordingly, a witness is not hostile merely because his evidence is not favourable to the party that calls him.

4.     Previous Consistent Statement

The rule is that, generally, a witness may not be under examination-in-chief, whether he had said something previously, much the same thing he is saying now. The fact that he might had said so may not be proved: R v Roberts (1942) 1 ALL ER 182. In that case, the accused person was charged with murder; by shooting a girl who was letting the accused person into her home. His defence was that the gun went off accidentally when he was trying to make up with the girl. Two days after the incident, he told his father that his defence is going to be accident. At the trial, he wanted to bring his father to testify on that fact. The court of 1^st instance refused to let or allow such evidence from the father and that was upheld on appeal.

Again, in the case of Corke v. Cork & Cook, a husband petitioned for divorce on adultery that the wife had in a correspondent bathroom and when they had been challenged afterward, they denied it. Later, they phone a doctor with a request to come and examine them in order to certify that a recent intercourse had not taken place. It was held that neither the Doctor nor Mrs. Coke or Mr. Cook should have been allowed to give evidence of the telephone conversation.

The forgoing is just a general rule. It has the following exceptions.

i.                   Statements consisting complain by a victim of sexual assault

A victim of sexual assault is permitted to remake the previous statement made to a third party shortly after the rape. This shows that she did not consent to the inter course. Hence, the statement consisting complains by a victim of sexual assault can be re-narrated either by the victim or by the person to whom the statement was made. But for it to be admissible two conditions must be met they are namely:

(a)              The complaint must have been made at the earliest opportunity

(b)             The complaint must not have been made as a result of any inducement or the asking of any leading question.

ii.                 Statements forming part of Res Gestae

This refers to statements forming party of the occurrence of an event that naturally unfold. The statement and event must be contemporaneous in point of time. It refers to statement forced out by the happening of an event. Such statement must flow immediately form the event or transaction. Res Gestae is a latin word which means “things done”. Res Gestae is a blanket term that is generally and usually used in relation to the admissibility of statements and it can rightly be said to be or described as relevant through contemporaneity.

Thus, if the previous statement can be said to form part of the incident to which it relates; it may be received to show the consistency of the matter of the statement, when a witness gives evidence in court: as forming part of the story or Res Gestae. If the act or declaration on the incident or statement constitute or accompany and explain the facts or transaction in issue, it can be taken as forming part of Res Gestae. Any of this may be admissible for or against the party that made such declaration.

However, for a statement to be part of Res Gestae, it must be made in circumstances of spontaneity and involvement in the event that the possibility of concussion or fabrication by the maker of the statement will be non-existent. Conversely, if the statement was made by way of narration of a detached prior event, so that the speaker was so disengaged from it, as to be able to construct or adapt his account, the statement, would be excluded. The following cases illustrate the point.

a.     Sunday Akpan v State (1967) NMLR 183. In that case, the appellant was convicted of murder. The only eye witness called for the prosecution was a boy, twelve of age. His evidence was that he went to bed on the night of the incident and later, he heard his mother shout ‘Sunday has killed me’. When he ran out, he saw the appellant cutting his mother with a matchet. It was held that the statement of the deceased (as narrated by the boy), ‘Sunday has killed’ me was admissible both as a dying declaration and as part of the res gestae. The statement accompanied and explained the fact in issue which was the murder of the deceased.

b.    R v Bang Weyeku (1943) A WACA 195. In this case, the principal evidence against the accused, on a charge of murder was that the deceased after he had been stabbed said “Bang has shot me.” The accused was not present. There was no evidence that the deceased believed himself in danger of death. The other evidence against the accused was not conclusive; but the trial judge admitted the evidence of the deceased’s statement and convicted the accused primarily on it. On appeal, it was held that the evidence was inadmissible as a dying declaration and also as part of res gestae, because it was made “an appreciable time” after the actual wound was inflicted. This case shows that the statement must be substantially contemporaneous with the fact in issue.

c.      R. v Bedingfield (1979) 14 Cox CC 341. Here, the deceased with her throat cut, staggered from a room in which she had been with the accused, one Harry and said “Oh Aunty, see what a Harry has done to me”. It was held that this was a mere narration of a transaction which was over and done with and so; not admissible as res gestae.

It seems from the last two cases that, the interval time between the statement and the occurrence of the fact in issue must depend on the circumstances of the case. Finally, Res Gestae is not specifically provided for under any section of the Evidence Act. In fact, it was admissible under section 1(a) of the old Evidence Act.

iii.              Statement  of the Accused

This refers to the statement of the accused made to the police shortly after his arrest. The court is permitted to accept such a statement in evidence as a previous consistent statement. Of course, this may be tendered by both the prosecutor and the defence. In other words, the previous statement of the accused made by the accused during investigation is admissible, if during the normal course of trial such statements are read to the courts. The accused person can still also adopt it as his previous statement and that would be admissible as exception to the rule against previous consistent statement.

iv.              Identification of the Accused

Prior identification of an accused person can be admissible for this further identification in court. However, for it to be proper, it must be persons of the same description. Thus, if a person is a witness to a robbery incident which the robbers have been arrested and the witness must be brought to identify the person, among a group of persons of the same built, weight and complexion. Once, the witness has identified the accused which amounts to saying that – this is the suspect – in court; he will be asked to re-identify the accused. This amounts to making another statement and this is an example of an exception to the rule against previous consistent statement.

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