Re-Examination and Re-Calling a Witness

This take place at the end of cross-examination and this done by the party that called the witness. Section 214(3) of the Evidence Act 2011 provides for re-examination by stating that where a witness has been cross-examined and is then examined by the party who call him, such examination shall be called his re-examination. Section 215(3) of the Evidence Act 2011 further provides that re-examination shall be directed to the explanation of matters referred to in cross-examination and if a new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

Accordingly, therefore the object of re-examination to give the witness an opportunity to explain any seemingly inconsistent answer during his cross-examination and give him opportunity to clear any doubt in his testimony and it must be restricted to matters raised during cross-examination. No new matters should be raised without the leave of court. If the court allows the re-examiner to introduce new matters during the re-examination, the other party is entitled to re-cross examine on the new issue raised. Leading questions are not allowed in re-examination. Section 221(2) of the Evidence Act 2011 provides that leading questions shall not be asked in examination-in-chief, or in re-examination.

The Power of the Court/Jude to put Questions to the Witness

This refers the power of the Judge to put questions to the witness. Of court excessive asking of questions on the party of the judge may be interpreted to mean bias, and as such lead to the quashing of the conviction or allowance of the appeal by an appellate court.     The court has very wide powers to examine witness before it; if this happens, neither party is entitled to object and they cannot cross-examine such witnesses without leave of the court.

Again as a general rule in civil cases, a judge cannot call a witness on his own motion without the consent of the parties: Jones v. National Coal board (1957) 2 ALL ER 155. But, the court may do so in order to clarity a point of evidence which had arisen in the proceedings before him and the implications of which are well known or within the knowledge of both parties to the litigation: Ogbudu v. Odogha (1967) NMLR 221; or where the interest of justice compels such an action.

However, the position is a little different in criminal cases. Section 200 of the Criminal Procedure Act and section 237(1) of the Criminal Procedure Code, give a court power at any stage of any trial, injury or other proceedings under the Act and law respectively, to summon any person as witness (the person not having been called as a witness by either the prosecutor or defence) or to recall and re-examine (a witness already examined) at any stage of the trial.

Recalling of Witnesses

There is no provision in our law of evidence under which a judge can call or recall a witness in civil cases: Omoregbe v. Lawani (1980) 3 – 4 SC 108 per Idigbe JSC and Tiwani v. GMB Ltd (1997) 8 NWLR (Pt. 515) 140 @ 155. So in civil cases a judge suo motu cannot call or re-call a witness. In Bellgam v. Bellgam (1965) 1 All NLR 100, at the adjourned hearing of a divorce petition, the husband and his Counsel were absent; but nonetheless, the trial judge himself called the witness for the husband who were in court and took their evidence. An appeal against his judgment was allowed on this ground as the Supreme Court held that he had no power to call the witnesses in the circumstances.

But, in Ogbudu v Odogha (1967) NMLR 201, it was held that the judge could do so in order to clarify a point of evidence which has arisen in the proceeding before it and the implication of which are well within the knowledge of but parties to the litigation. Consequently, it is settled law that the trial judge has the discretion to call or recall a witness. And so when a party applied to recall a witness, to grant or refuse the application is at the discretion of the judge acting both judicially and judiciously and the power should be exercised with greatest care and only in exceptional circumstances.

However, it is not a matter of routine. A party seeking a recall has a big burden. In fact, the party applying to recall a witness must supply sufficient facts on why he wants to recall the witness and what he intends to do with him: A.C.B Ltd v. Uzor Bros Nig. Ltd (1997) 6 NWLR (Pt. 510) 692 @ 697. Power to recall a witness does not include power to re-open one’s case.

Nevertheless, if it is on a matter that has arisen ex-improviso, that the parties could not imagine, then the court will allow the party to re-call a witness. However, the matter must be such that no human ingenuity would have foreseen on the part of the parties: R v Asuquo Edem (1943) 9 WACA 25. Additionally, in criminal proceedings, under section 200 of the Criminal Procedure Act, the court at any stage of any trial, inquiry or other proceedings under this law may call any person as a witness, recall or re-examine any such person if his evidence appears to the court to be essential to the just decision of the case. This, in criminal proceedings or criminal cases the court has wider powers to examine witnesses for a just decision of the case.

In R v. Asuquo Etim supra, it was clearly established that under section 200 of the Criminal Procedure Act, the court can call a witness even after the close of the case of the defence, but to do so or to so act at such a stage of the proceeding calls for great caution and should normally be restricted to evidence in rebuttal of matter raised by the defence for the first time – West v. Police or to clear a matter that has arisen ex-improviso and which no human ingenuity would have foreseen on the party of the accussed.

In R v. Asuquo Etim, the appellant was charged for murder. It was the prosecutor’s case that the motive of the murder was the belief that the murdered man had caused the death of another person by means of witchcraft. One of the appellants introduced the offence fresh and matters relating to native custom in cases of suspected witchcraft which if true could have seriously discredited the evidence of the prosecutor witness. The trail judge thereupon called a Native Chief who had been sitting in court to testify as to his knowledge of this custom raised ex-improviso and the West African Court of Appeal held that the calling of the witness was proper. But, it is wrong for the court to call evidence after the parties have closed their respective cases in order to strengthen the case against the accused: Denloye v. MPDC (1968) 1 All NLR 306 @ 307.

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