party who called the witness: SECTION 214(3) EVIDENCE ACT 2011
PURPOSE/PRINCIPLES OF RE- EXAMINATION
1. The aim of re-examination is to clear ambiguities, inconsistencies doubts or haziness that arise out of cross-examination.
2. Therefore, where is a no cross-examination, there cannot be re-examination.
3. It is not an opportunity for the re-examiner to elicit evidence, which he failed to elicit in his examination in chief.
4, Leading questions shall not be asked in re-examination – S. 221 (2)
5. No new matter is entertained in re-examination unless with leave of court.
6. Where a party, by leave of court to introduce a new matter in re-examination, the adverse party is entitled to cross – examine on that fresh issue.-S. 215 (3)
7. Denial of a right to re-examine a witness is a denial of a right to fair hearing.
- Police v. Nwabueze.
NB-s.84 EA -computer generated evidence-Dr Imoro Kubor v Seriake Dickson. Also note requirement of a certificate signed by person responsible for device: s84(4) EA. See week 14 above REFRESHING MEMORY –
-SECTION 239 Evidence Act
Where a witness finds it difficult to remember an event, which had taken place a long time ago. Such witness is:
1. permitted to refer to any document made by him at the time of the transaction or so soon afterwards-s.239(1) EA
2. he may refer to any writing made by any other person and read by the witness and if he knew it to be correct: s239(2) EA
3. An expert may refresh his memory by reference to professional treatises: S239(3) EA
The process of refreshing memory may take place at any stage of examination either at examination – in – chief, cross – examination or re-examination.
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 -S. 241 EA
The general rule is that a person calling a witness is not allowed to discredit him.
S. 230 OF THE EVIDENCE ACT; BABATUNDE V. STATE
However, when the witness testifies against the party who called him and is unwilling to tell the truth or he is evasive in the answers he gives.
A hostile witness is one who in the opinion of the court, is biased against the party who calls him, is unwilling to testify or who supports the other party: Esan v State
This is a witness who bears hostile animus to the party calling him and is unwilling to testify or tell the truth
The party calling the witness will have to apply to the Court to declare the witness a Hostile Witness and the court satisfying itself, can declare a witness hostile: s230 EA. He may then be cross examined: Gaji v State, Iluonu v Chiekwu. CT will look at the surrounding circumstances before declaring the witness as hostile
NB -the mere fact that witness gives evidence not FAVOURABLE to the party calling him does not prima facie make him a hostile witness.
Babatunde v State: a party calling the witness is deemed to be holding out the witness as a witness of truth. Therefore, a party calling a witness cannot discredit him by general evidence of bad character except where the court declares him hostile: s230 EA.
THE EFFECT OF THE COURT DECLARING A WITNESS HOSTILE ARE AS FOLLOWS:
He can be cross-examined
Can ask him leading questions
He can be discredited using previous inconsistent statements made by him. (leave of court)
S. 231 of the Evidence Act.
POWER OF THE COURT TO PUT QUESTIONS TO ANY WITNESS
The Court has the power to put questions to any witness before it -s.246 EA 2011
The Judge or magistrate is allowed under CPL/CPCL to put questions to witnesses in order to reach a just delivery of the case.
The aim is to clear up ambiguities or a point left obscure in his testimony for the determination of the case justly.
The questions asked must be relevant under the Act and must be duly proved
S. 246 (2)
However, the Court is not to descend into the arena or ask damaging questions to the witnesses or an accused person. OKORIE V. STATE
A counsel cannot raise objection to the Court’s power to call/recall witnesses and to put questions to them. –
S. 246 of the Evidence Act 2011; ONUORAH VS. THE STATE.
Note that the Court cannot compel a witness who is not compellable to answer its questions.
S. 36 (5) & (11) of the 1999 Constitution as amended,
AKINFE VS. THE STATE
TINUBU V. IMB SECURITIES
POWER OF COURT TO CALL OR RECALL A WITNESS
S. 200 CPL;
S. 237 (1) CPCL;
S. 197 ACJL
The court has powers to call any witness whether or not such a witness has been called by either party.
NB-This power is only available in criminal matters.- BELLGAM V. BELLGAM
This power extends to recalling a witness after the close of the defence on matters unforeseen which arose during the case for the defence-ONUOHA V. STATE
This power by no means allows a judge to descend to the arena of the conflict
-OKORIE V. STATE a new witness was called by the Judge, the questions asked the witness elected evidence, which the Judge relied on to convict the accused. The conviction was quashed on appeal.
This power to call or recall witnesses may be exercised at any stage of the proceedings before verdict/conviction/judgment-Uso v. Police.
CT may even call a witness not earlier called by either party
A party to proceedings may have a crucial need to recall a witness for further examination. He shall apply to the court and support his application with facts as to why and what he intends to put to the witness- ALLY V. STATE
ADMISSIBILITY OF DOCUMENTARY EVIDENCE IN CRIMINAL TRIALS
The basis for the admissibility of any document tendered is if it is relevant to the facts in issue or facts relevant to facts in issue: Section 1& 2 of the Evidence Act 2011.
A document not before the Court or admitted in evidence cannot be used to contradict a witness during cross-examination.
The admissibility of the documents usually tendered in criminal trials are explained below:
CONFESSIONAL STATEMENT: see section 28 and section 29(1) – (3), (5) EA
This is admissible and the Court can safely convict on it if voluntarily made by the accused. S. 28 of the Evidence Act and YESUFU VS THE STATE.
In Lagos, a confessional statement must be video recorded or made in the presence of a legal practitioner in order for it to be admissible in evidence: S. 9(3) of the ACJL.
If the accused denies making the statement (this is called retraction), the Court will still admit it and decide what weight is to be attached to it.
Section 29(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
Section 29(2): If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained —
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
Section 29(3): In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either subsection (2)(a) or (b) of this section.
Where confessional statement is made by co-accused in the presence of others, not admissible against them unless they adopt said statement by word or conduct: s29(4) EA
Section 29(5) EA: In this section "oppression" includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.
Accused may be convicted solely based on his confessional statement if the court is fully satisfied: Nwachukwu v State, Gabriel v State,
Awosika v State – 6 tests for verification
(1) Is there anything outside the confessional statement to show that it is true?
(2) Is it corroborated? (3) Are the statements made in it of facts as far as they can be tested? (4)Was the prisoner one who had the opportunity of committing the offence? (5) Is his confession Possible? (6) Is it consistent with other facts which have been ascertained and which have been proved?
STEPS TAKEN BY THE COURT WHEN THERE IS AN ALLEGATION OF INVOLUNTARINESS
If the accused alleges that he made the statement out of duress or oppression, the Court must conduct a TRIAL WITHIN A TRIAL in order to ascertain its voluntariness or not: Ike v State. Only admissible if voluntary
In such trial, the prosecution will first open its case to show that the statement was made voluntary then the defence will later open its case.
The Court must rule on it and if it holds that the confessional statement was made voluntarily it will admit it in evidence and the normal trial will proceed.
TENDERING OF CONFESSIONAL STATEMENT
A confessional statement must be tendered in whole whether a part is favourable to the accused or not.
It must also implicate the accused. See R V. ITULE.
Proper foundation must be laid for its admissibility through the Investigating Police Officer – normally by stating that the accused was cautioned before he wrote the confessional statement, that the accused wrote the statement voluntarily and signed it; the IPO signed the statement and the statement was countersigned by a superior police officer
The general rule is that the opinion of an individual is inadmissible evidence –S.67 EA
Persons specially skilled in certain areas: s68 EA
Must possess skill and qualification to be so referred: Essien v R
Rejection of expert evidence by court: Arise v State, Aladu v State
Expert evidence is mandatory to prove some offences: Ishola v State, Stevenson v Police: unlawful possession of hard drugs. However, in Chukwu v FRN: CT held where an accused confesses guilt, there may be no need to obtain expert evidence
However, such evidence of opinion may be admissible if it falls within the exceptions created under Ss. 68 –75 EA One of the exceptions is in respect of expert evidence. S. 68 of the Evidence Act 2011.
For it to be admissible, proper foundation must be laid to show the expert’s qualification, skill and experience.
Also the expert can put in his expert Report without being called in Court.
AZU Vs. THE STATE.
The general rule is that the opinion of a person is not admissible in Court except as provided in the Evidence Act: Section 67 EA
Section 68(1): When the court has to form an opinion upon a point of foreign law, customary law or when and custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible. (2) Persons so specially skilled as mentioned in subsection (1) of this section are called experts.
Section 69: Where there is a question as to foreign law, the opinions of experts who in their Opinions as to foreign profession are acquainted with such law are admissible evidence of it, though such experts may produce to the court books which they declare to be works of authority upon the foreign law in question, which books the court, having received all necessary explanations from the expert, may construe for itself.
Section 70: In deciding questions of customary law and custom, the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognised as legal authority by people indigenous to the locality in which such law or custom applies, are admissible.
Section 71: Facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts, when such opinions are admissible.
Section 72(1): When the court has to form an opinion as to the person by whom any document was handwriting, when written or signed, the opinion of any person acquainted with the handwriting of the person by admissible, whom it is supposed to be written or signed that it was or was not written or signed by that person, is admissible.
(2) A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
Section 73. (1) When the court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed are admissible.
(2) The expression "general custom or right" includes customs or rights common to any considerable class of persons.
Section 74: When the court has to form an opinion as to —
(a) the usages and tenets of any body of men or family;
(b)the constitution and government of any religious or charitable foundation; or
(c)the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge on the matters specified in this section, are admissible.
Section 75: When the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is admissible: Provided that such opinion shall not be sufficient to prove a marriage in proceeding for a divorce or in a petition for damages against an adulterer or in a prosecution for bigamy.
Section 76: Whenever the opinion of any living person is admissible, the grounds on which such opinion is based are also admissible.
You need to present alternative conclusion or inference that can be drawn to the set of facts upon which his opinion is based
He can also be tackled on the ground that he lacks full understanding of the facts which he worked
To be able to do this, you need to achieve a working knowledge of that practice field by consulting other experts
C. POLICE REPORT (CASE DIARY).
The general rule is that the Police Report is not admissible in evidence against an accused.
S. 122(1) of the CPCL
GAJI VS. STATE.
However, it is admissible is if the IPO’s attendance cannot be procured without delay and;
the defence did not object to its admissibility
the Court consents - S. 49 of the Evidence Act
NB-The IPO can use the Report to refresh his memory.
ADMISSIBILITY OF HEARSAY EVIDENCE
A statement oral or written made otherwise than by a witness in a proceeding or which is tendered in evidence- S. 37 EVIDENCE ACT 2011, Okoro v State, Achora v AG Bendel.
Section 37 EA: hearsay evidence means a statement (a) oral or written made otherwise than by a witness in a proceeding; or (b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
Generally, hearsay evidence is not admissible: S. 38 EA
However, there are exceptions to the rule against hearsay evidence. They include:
1. Statements by persons who cannot be called as witnesses: S39
a. a person who is dead
b. who cannot be found
c. who has become incapable of giving evidence, or
d. whose attendance cannot be procured without unreasonable delay or expense.
2 Statements by Deceased Persons
a. Dying declaration S. 40
b. Statement made in the course of business S. 41
c. Statement against interest of maker with special knowledge S. 42
d. Statements of opinion as to public right or custom & matter of general interest S. 43
e. Statement relating to existence of relationship S. 44
f. Declarations by testator S. 45
3. Evidence of a witness in former proceedings S. 46 – 48
b. Entry in public records made in performance of duty S. 52
c. Statements in maps, charts and plans S. 53
d. Statements as to fact of public nature contained in certain Acts or Notifications S. 54
7. Certificates of specified Government Officers S. 55
8. Certificates of Central Bank Officers S. 56
9. Evidence of family or communal tradition in Land cases S. 66
10. Statements in public documents
10. Statements in res gestae.
Also affidavit evidence is an exception to hearsay evidence.
EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE-S. 128 EA 2011
Generally, the contents of a document can only be proved by tendering the document itself in evidence.
However, there are circumstances where the court may permit oral evidence in proof of the contents of a document.
NOTE: admissibility of computer generated evidence S. 84 EA; Documentary Evidence. The Proper Foundations for the Admissibility of each one in evidence
Admissibility of documentary evidence (see slides and Evidence Act to complete this part)
83.- (1) In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied—
(a) if the maker of the statement either — (i)had personal knowledge of the matters dealt with by the statement, or
(ii)where the document in question is or forms part of a record purporting to be a continuous record made the statement (in so far as the matters dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and
(b) if the maker of the statement is called as a witness in the proceeding: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.
(2) if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence notwithstanding that -
In any proceeding, the court may at any stage of the proceeding,
(b)the original document is not produced, if in lieu of it there is produced a copy of the original document or of the material part of it certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.
(3) statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
(4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialed by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible.
(5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of this section, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may, in deciding, whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner.
Section 83 E.A. 2011 provides that the primary means of producing a document is the production of the original document. But that is not the only requirement. An addition requirement contained insection 83(1)(a) E.A. 2011, is that contents of the document itself must emanate from the personal knowledge of the maker.
Also section 83(1)(b) E.A. 2011 says that the person who made the document must be called. But section 83(1)(b) need not be satisfied if the maker is dead, unfit, is outside Nigeria and getting him here would be unreasonable, or if the maker of the document cannot be found.