Continuation of TRIAL PREPARATION AND EVIDENCE

Tendering evidence of a child

Defence counsel: my lord we shall object to the continuation of the examination of this witness. It is obvious that the witness is not legally allowed to give oral testimony in a civil case my lord. He is obviously below the age of fourteen years. He is in primary school.

Counsel for the claimant: Yes, he is twelve and we have the absolute right to call this witness, as we would any other witness. We rely on s.175 EA. That is the only provision we have to comply with. Isn’t it? 

 

S209 EA – s.209(2) defeats the defence counsel’s position as it allows the provisions of ss175 and 208 to apply to all cases be it civil or criminal cases

This has codified OKON V STATE

 

COMPETENCE/EVIDENCE OF A CHILD

A child is a competent witness in a civil case if:

• He has sufficient intelligence to justify the reception of his testimony and (2) when he also displays an understanding of the duty of speaking the truth – s 175; 209 EA
• If he satisfies the condition above and he has attained 14 years of age, he gives sworn evidence

 

However a child who has not attained the age of 14, but satisfies the intelligence test gives unsworn evidence.

 

Examination in chief involves asking questions of the witness to show his age, his intelligence and duty of speaking the truth. E.g. what do you think will happen to any person who lies to a judge?

Cross-examination is along the normal line.

But explore the element of hearsay since children are vulnerable/impressionable.

 

Wrongful admission and exclusion of evidence

See 251 EA .SHIVERO V STATE – the case says that if the evidence that was wrongfully included has been removed and after that there is still sufficient evidence to uphold the judgment then the judgment stands. The court would look at whether there has been a substantial miscarriage of justice. So if after removing that objectionable piece of evidence there is still substantial evidence to uphold the judgment then the judgment stands.

 

TRIAL: EXAMINATION OF WITNESSES

 

Where a cause on the cause list is called for hearing and the parties do not appear, then the court may strike out the action. See order.35 rule 2(FCT), Order 30 rule 1 Lagos.

If a case is slated for mention and the court decides to go to trial it would be a breach of s36 fair hearing as the lawyer may not be ready to go to hearing.

 

Where the claimant appears but the defendant defaults the claimant proves his case only to the extent of which he bears the burden of proof.

Where the defendant is present and the plaintiff defaults in appearance, at a trial

• Then if he has a counter claim he proves it to the extent that he bears the burden of proof

Where there is no counterclaim default judgement may be entered dismissing (striking out) the case for want of diligent prosecution.

 

EXAMINATION IN CHIEF

1. Conducted by the party calling the witness
2. Nowadays in civil litigation in high court, it is made simpler. Adoption of the statement in oath of witness is done
3. However, where any document is not admitted by consent, party that seeks to tender same in evidence will have to lead evidence by the appropriate witness, this is for objection to be taken and a ruling given thereupon. – o 32 r.1(4) Lagos

 

The order of calling witness is at the discretion of counsel.

Legal burden of proof determines whohas the obligation to commence calling evidence – Order 30 r 8 Lagos

 

COURT PROCEEDINGS

Registrar: announces that all witnesses in the case should be out of court and out of hearing

 

Counsel for the claimant: My Lord, since the parties are going to be witnesses in this case, I apply that the defendant should be made to obey the simple instruction to vacate the court during the testimony of the claimant.

 

Counsel for the defendant: My lord it doesn’t appear this one knows his law. I think he should go back to the law school to learn the basic principles.

 

1. Was the claimant counsel right in law in his demand?

S212 EA provides that the general rule does not apply to the parties themselves or their legal advisers although they are intended to be called as witnesses.

 

2. Was the correct approach adopted by the opposing counsel?

By virtue of Rule 26 RPC it is the duty of counsel to treat each other with respect and dignity.

 

 

1. Witnesses are usually ordered out of court to prevent them from being influenced by the testimonies of other witnesses in the case.

“All witnesses in this case should go out of court and out of hearing” – you have to use the words stated in the Evidence Act

2. Such order can be made by court on the application of other party or even the court suomoto s 212. S213 prevention of communication with witnesses yet to testify.
3. However a party to a case and his legal adviser (even where such legal adviser will be called as a witness) are exempted from such an order. See 212 EA
4. The court takes proper steps to prevent transmission of communication with witnesses awaiting examination. – S 213 EA

 

The way a judge can secure integrity of oral testimony/ safeguards for securing integrity of oral testimony

1. The judge watches his demeanour of the parties
2. It is a subject matter of cross-examination by the other party
3. Such oral evidence is given upon oath or affirmation.

 

Preliminaries: Oath Taking, etc, scenario

Court registrar: witness you may choose to speak any language you like. But it is important that you must be sworn. You must swear by the holy book of your religion

Witness: by my religion I cant swear o. Is there any way?

Registrar: No other way. Please don’t waste the precious time of the court. Come and swear please 

 

1. Was the registrar right, in his assertion above?

No, by virtue of s 205 and 208

2. Mention any other means available apart from being sworn on oath open to the witness? Affirmation
3. What is the proper preliminary question that should have been asked by the registrar? Does the witness understand English
4. Assuming the option in 2 above was taken to, state what the court should do in respect of its record of the event? The court should record the fact that evidence not given upon oath has been received and the reasons for such reception.

 

The general position is in s205.  S 208, however provides that a person can give evidence without swearing. Also the language of the court is English.

 

Oral evidence is given upon oath or affirmation – s205 EA

The difference between the wording of an oath and an affirmation are:

• An oath is conducted with the holy book of the religion of the witness
• The oath ends with “so help me GOD” which is absent in an affirmation

 

See also s208 EA where evidence may be receivedeven where it is not on oath.

Note all witnesses are to be cautioned against telling lies on oath – s206 EA

However the registrar should have asked the witness if he understands English or not.

 

Addressing the court announcing appearance

IN THE HIGH COURT

Counsel 1: with utmost respect and greatest humility, my worship, AjewoleRaphella will be acting as the counsel for the claimant in this case

With utmost respect – is used when you’re about to disagree with the lord

Be acting -  I announce my appearance for

My worship – My Lord

Counsel 2: what an un-informed manner of announcement. Your honour, with due respect, I appear for the defendant in this case. My name is orange white esquire , with me is AGBEKE GREEN – a female gentleman

 

There are three types of examination

1. Examination in chief
2. Cross-examination

• Re-examination

 

Scenario one

Counsel: You are IyaboRamshi, the claimant in this case and your address is No 25 Ade street Lagos

Def. counsel: this is absolute nonsense. Counsel should not lead the witness in evidence at all. My lord I object to this, this counsel leads the witness. He shouldn’t do that.

 

There is a difference between counsel leading a witness in examination and counsel asking a leading question. Leading a witness is asking him questions that guides him during trial. A lawyer should guide his witness as they are often laymen

A leading question is a question that suggests the answers intended to be received, s221. Leading questions should not be asked during examination in chief because only the witness ought to give evidence and not counsel.

However it is allowed here because it an introductory question

 

Leading the witness or asking leading questions of a witness

1. Each counsel is expected to lead his witness in evidence by asking questions of such witness during his examination in chief as well as re-examination – 214 EA
2. However as a general rule counsel would not be allowed to ask leading questions of his witness s221 EA
3. A leading question is that which suggests the answer sought to the witness. S 221 EA
4. However leading questions are allowed, even in an exam-in-chief and re-examination:
5. In respect of introductory matters
6. Undisputed matters
7. Matters that have been sufficiently proved
8. Where leave has been obtained to treat own witness as a hostile witness, pursuant to s230 EA

 

Leading questions are generally allowed in cross examination -  s221(4)EA

 

Examination in chief has now been reduced to the adoption of the witness statement on oath

Purpose: to elicit evidence in support of the case for the party that called the witness

 

Scenario: Tendering document (not agreed upon) in examination in chief

Counsel: my lord, this is the document mentioned in the statement on oath of the witness

Opposing counsel: my lord, this document is not admissible as yet. We have not consented to its admissibility. The appropriate procedure is not followed

 

You have to lay the proper foundation.

The proper procedure is to lay the proper foundation where the document has not been agreed upon.

 

Example of objection

Opposing counsel: my lord we shall object to the admissibility of these documents. It is inadmissible. The letter purports to have originated from the custody of the state governor acting in his official capacity. It is a public document. To sections we refer 89 (E); 90(1)(C)102 and 104 EA . We also place reliance in the case of Minister of Lands Western v Dr Azikwe (1969)

Also if a document is not pleaded it goes to no issue

 

Aftermath of rejection of document in evidence

1. It is marked “ tendered and rejected” or simply “rejected”
2. Once it is tendered the party tendering cannot withdraw same for correction of the defect and it shouldn’t be re-tendered - BABATOLA V ALADEJANA (2001) LPELR-696 (SC)

If before tendering it is withdrawn, it is retained by the party tendering.

3. It is retained in the court, until an appeal or the period for an appeal expires

BABATOLA V ALADEJANA order 30 rules 12& 17 Lagos; order 35 rule 21&22 FCT

 

See s83 – documents must be tendered by persons who….

 

Marked for identification

The procedure is followed when a particular document which is not yet tendered as evidence in the course of proceedings is sought to be identified/referred to by a witness.

Note that such document marked for identification should however be properly tendered through the appropriate witness in due time

 

Refreshing memory – s 239 EA

Due to the length of time between the transaction and the testimony in court, a witness may be allowed to refresh his memory, at any stage of his examination/testimony i.e. it can take place during the examination-in-chief, or cross-examination or re-examination.

 It is to refresh memory and not to replace memory – so witness cannot start reading from the text, rather he should read it to refresh his memory and continue with the examination.

 

A witness may be allowed to refresh his memory by reference to any writing made at the time of the transaction, or so soon after the transaction when it still fresh in the witness memory

Also importantly an expert may avail himself of the provisions to refer to professional treaties while giving evidence s239(3)

Proper procedure

1. Show that the transaction was recorded in writing
2. That the writing was made by the witness

• Simultaneously with the transaction or so soon after the transaction when the event was still fresh in the memory of the witness

In JIMO AMOO V R , the FSC overruled the procedure whereby a witness attempted to refresh memory froma deposition made some five weeks after the incident in issue

 

4. Counsel thereafter seeks leave of court orally for witness to refresh his memory
5. Note that - the witness cannot read out his testimony from the record. The operative words are “ refresh his memory by referring to any writing”

 

HOSTILE WITNESS

S230 EA

A hostile witness is that witness that has shown hostile animus and is unwilling to tell the truth on behalf of the party that called him – ESAN V STATE

The issue of hostile witness can only arise in the course of examination in chief and re-examination.

The 2 conditions are:

• The witness must have displayed hostile animus to the party that called him – ESAN V STATE
• The witness must be unwilling to tell the truth – ESAN V STATE; IBE V STATE

 

The essence of contradicting him is so you can try to discredit and impeach him pursuant to s230 so he doesn’t help the opponent case and the judge can discountenance all that he said.

 

The procedure is for the party or his counsel to apply orally for leave of court to treat the witness as a hostile witness – s208 EA; ESAN V STATE

 If the leave sought by the court is granted, the counsel is allowed to use contradictory statements and cross-examine him

 

CROSS EXAMINATION

No cross –exam where no harm is done to your case:

L – LISTEN

A – ANALYSE

E – EVALUATE

R – RESPOND

No cross-examination – note the possible positive impression on the judge

 

Purposes  - s 223 – 228 EA

1. To elicit evidence favourable to the cross-examining party
2. To destroy the case of the party calling the witness
3. To challenge the credibility of the witness
4. To show unreliability of the testimony

 

See generally  s214,215(2), 219 EA

The rules – things done in cross examination

1. Preparation and knowledge of the case
2. General knowledge about the area/discipline involved in the cross-examination
3. Specific knowledge of the particular case, the witness and his testimony

• Prepare your case theory, case trial plan and analysis

1. Be conversant with every fact/shades of the case
2. Sketch the address ahead of the trial

 

2. No cross-exam where no harm is done to your case: LAER
3. However, cross-examine to challenge adverse piece of evidence otherwise you are deemed to have admitted same.
4. In your cross-examination, put your version of the case to the witness for his admission or denial.
5. Always ask leading questions: always know the answer that will likely be given. Always ask leading /close questions.

No open questions like “why” “how” “narrate” “explain” unless where the answer will not be harmful or where it may even assist.

6. No one question too many: reserve that for the address
7. Use insinuation, probing and confrontation – this are the three types of cross-examination.

Incremental questions, covering/probing details

Test as appropriate the accuracy/integrity of the story:

1. Observation: so you can create leading question to show that he didn’t have opportunity to observe the incident/scenario – debilitating factors
2. Perception

• Memory

8. Test the credibility:

• Prejudice/bias/discrimination
• Motive
• Incentive/interest

9. Discredit / impeach witness by

• Inconsistent statement made in the past
• Inconsistent/omission in pleadings
• Any prior conviction – to attack his character
• Any statement by other witnesses that is inconsistent

10. Don’t argue with the witness
11. Don’t abuse the witness
12. Don’t ask questions that are suitable for the address
13. Control the witness

 

 

S228 for insulting witness. The extent to which counsel can cross-examine – s215 (2)

 

Ethical matters: questions that should not be asked in a cross exam

Whichever form it takes the cross-examinations should not contain questions:

1. Asked without reasonable grounds (225/226EA)
2. Indecent/ scandalous (227 EA)
3. Insulting/annoying/offensive (228 EA)

 

Expert witness

1. An expert is a person who is specially skilled in the areas of
2. Science
3. Art

• Foreign law

2. Expert opinion evidence is an exception to the rule against opinion evidence – s 67 & 68 EA

 

Examination in chief of an expert witness

1. Establish the qualification and experience of the expert before he goes on with his testimony
2. Qualification of the expert is sine qua non to the reception of the evidence of such expert witness
3. Competence of an expert witness is restricted to his area of specialization –Ogunozee v State

If you don’t qualify your witness he would be deemed an incompetent witness

Can that pathologist give evidence that it was gun wound that caused the death, is a competent witness for that matter?

Can he give evidence that gun wound was caused by the distance from which the bullet was fired?

But the type of bullet wasn’t within the purview of his expertise.

 

4. The qualification will include question and answer to show the:
5. Academic and professional qualifications
6. His experience and exposure

• Exposure to training on the job; conferences

 In most cases these factors would be contained in the curriculum vitae

 

5. Counsel thereafter asks the witness to narrate his testimony.

• Start by allowing the witness to testify on any experiment or study carried out on the subject matter
• Then allow him to narrate the result of the test/ experiment/study.
• State his opinion

 

Hints on cross examination of expert witness

Goal: make the expert give testimony that will favour your client/ or at least diminish the effect of his E-I-C (examination in chief).

Adequate preparation: closed/leading questions

1. If you have reason to question the experience cross-examine in his qualification/expertise/experience.                   -    Research the background of the expert for the opposite side.
2. Cross-examine to make him admit error/ insufficiency in facts/ data relied on by him for his opinion.
3. Cross examine on the procedure/ methodology followed in the particular instance.

• Non-compliance with best practices?
• Any wrong assumption?

4. Different conclusion (favourable to your case) different from the one he gave
5. Inconsistent previous testimony/ views
6. Inconsistency with current authorities
7. Bias
8. Pose your own version to him to obtain concession
9. Avoid one question too many.

 

Re-exam

1. 214, 215 EA

Purpose – explanation of matters referred to in the cross-examination. To salvage the damage done by way of re-explanation 

The goal of such declaration is to negate or nullify the effect of the adverse evidence already given by the hostile witness.

 

Draft a closing address

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO:

BETWEEN

MR KUNLE WHESU ..………………………………………CLAIMANT

AND

MR ORIMOGUNJE ………………………………………….DEFENDANT

 

 

FINAL WRITTEN ADDRESS

 

• INTRODUCTION

 

• BRIEF SUMMARY OF FACTS

 

• ISSUES FOR DETERMINATION

 

• LEGAL ARGUMENT

 

• CONCLUSION

 

LIST OF AUTHORITIES

 

DATED THIS …………..DAY OF …………….2018

…………………………

Supreme Unukegwo

Aluko&Oyebode Legal Practitioners

12 Ikoyi Drive, Lagos

Counsel to the claimant 

FOR SERVICE ON

 

Note: they can ask you from the facts given formulate 3 issues for determination. The operative word is whether