Presentation of Oral Evidence (S.
182 Et Seq
EA)
Introduction
• It is the duty of each party to a case to call those
witnesses whose evidence would be relevant to the
issue before the court and would assist that party
discharge the legal and evidential burden cast on them.
• Whereas it is usual for the parties to a civil case and
the complainant in a criminal case to give evidence,
The Gambia Court of Appeal has held that the failure of
a complainant in an indecent assault case to testify was
not fatal to the case if all the elements or ingredients of
the offence were otherwise proven.
Cont’d
• In criminal cases the duty of the prosecution is
much broader as it entails the obligation to make
available all the witnesses and the evidence
pertinent to the fact in issue, even where it
favours the defence. (S24 of 1997 constution)
• There is a twofold duty on the prosecution: to
call all the material witnesses or to make them
available at the trial to the defence for cross-
examination (R v. Esseim (1955) 14 WACA 673).
Cont’d
• While there is a duty on the parties to call
relevant witnesses, it is also incumbent on the
court, particularly in criminal cases, to afford
the parties a reasonable chance of calling
their witnesses.
Cont’d
• The attendance of a witness in court could be
secured through a subpoena issued by the
court at the instance of the party wishing to
call that witness especially when the witness is
unwilling to testify in court.
Discretion of Courts to Call Witnesses
• Discretion of Courts to Call Witnesses
• As to whether the court can suo motu call witnesses,
the West African Court of Appeal in Civil Appeal No.
2/52 Alhagi Ousman Jeng and Two Ors. V. Dawooda
Sowe and another appears to have approved the
ruling in Re Enoch 1910 Lr 1 KB 327 that:
• “It is certainly not the law that a judge or any person
in a judicial position has any power himself to call
witness of fact against the will of either of the parties.”
What is the position as regards criminal cases?
• In criminal cases however the matter is put
beyond doubt by S. 123 of the Criminal
Procedure Code which empowers every court
“at any stage of any inquiry, trial or other
proceeding” to call a person as a witness, to
record and re-examine any person already
examined “if his evidence appears to it
essential to the just decision of the case.”
Cont’d
• Rex v. Kuree:
• “The trial judge also has discretion himself to
call a witness in the interest of justice and we
conceive it to be his duty to exercise this
discretion when so doing the real truth can be
ascertained.”
Cont’d
• Once the witnesses have assembled, they should all be
out of court and out of hearing, lest their testimony is
influenced by the testimony of others.
• In addition, the court may make such orders as it
considers necessary to prevent communication and
hence collusion and fabrication, between witnesses
either in the court house, its precincts (Sec. 190) or
elsewhere.
• The parties to the case, who are also witnesses, are not
however affected by this rule and may stay in court
Cont’d
• throughout the proceedings. The practice is
for each party to first testify before calling his
witnesses to avoid tailoring of evidence.
Cont’d
• Each witness needs to be sworn by subscribing
to the oath contained in Schedule II to the
Evidence Act, using the Holy Quran or Holy
Bible or the Old Testament, as the case may
be.
• A witness may however decline to subscribe
to the prescribed oath either on the grounds
that oath taking is contrary to his religious
belief or that he lacks religious belief.
General Principles for Examination (Leading)of Witnesses
• 1. Objections to evidence should be taken
at the time the evidence is offered. (s205 EA)
• 2. Unfair question such as those involving
rolled up questions or a question which
assumes a certain fact or state of affairs not
yet established or on which no evidence had
been led are not permissible, it is unfair for
instance to ask a witness, “Have you stopped
beating your wife?”
Cont’d
• 3. The whole purpose and object of examination
of witnesses is to elicit evidence to assist the court
in resolving the issue before it.
• 4. Where in the course of the testimony of a
witness it becomes apparent that the matter he is
testifying about is contained in a document or he is
about to give evidence of the contents of a
document not before the court, the opposing party
has a right and should object to such oral evidence
and insist on the production of the document.
Cont’d
• 5. A witness may be subpoenaed merely to produce a
document. If he does so without giving evidence, he is not
subject to cross-examination.(see s221 EA)
• 6. Witnesses are obliged to answer all questions, put to
them. Failure to do so is a contempt of court punishable under
the law. There is no obligation however for a witness who is
not an accused person to answer a question which might
incriminate him (in the sense of exposing him to a criminal
charge), nor for an accused person to answer a question
tending to show that he had been guilty of offences other
than the one with which he is charged, unless those previous
instances are properly an issue before the court.
Cont’d
• 7. Each witness is under a legal duty to
answer questions truthfully. Giving false
evidence is an offence. In this respect it makes
no difference whether the witness testified on
oath or on affirmation. The sanction applies
to both situations
3 stage process
• Generally the process of presentation of oral
evidence subjects each witness to three stages
of questioning: examination in chief (EX-C),
cross examination (CR-EX) and re-examination
(RE-EX).
Examination-in-Chief
• Examination-in-Chief of a witness is
conducted by the party calling that witness..
• Eliciting from the witness all such facts as
tend to prove his case and which are within
the personal knowledge of the witness;
• The lawyer guides the witness against
irrelevancies or facts which are inadmissible.
Cont’d
• Documents and other things which it is
desired to put in evidence should be
tendered by the party under EX-C by an
application to tender after the proper
foundation has been laid for the admission of
the evidence.
• The court will hear arguments on any
objection and rule on the admissibility of the
evidence.
Cont’d
• In civil matters litigated at the High Court the
frontloading system will require the filing of all
evidence before the pre-trial conference.
High Court(amendment) Rules 2013.
• Objections to evidence if necessary, are also raised
at the time the evidence are offered to be
tendered. (S205)
• The evidence will be adopted as evidence in chief
of the witness and will serve as the examination in
chief of the witness.
The object of Examination –in-chief
• Its object is to elicit from the witness a factual
narration of that party’s case.
• In other words, it is for the witness to adduce
all the material facts as far as the witness can
remember and in his own words to establish
the party’s case – not necessarily all that the
witness knows.
Dos and don’ts of EX-C
Leading Questions
• Leading questions are questions which suggest their own answers
or assume the existence of disputed facts which have not yet been
proved in evidence. (see s197 EA)
• They are not generally allowed in examination-in-chief (see s198
EA)
Thus, you do not ask:
Was the Accused at Banjul on the day of the incident ?
Was the Accused driving on the right side of the road?
• Rather, you ask:
You may ask, where was the Accused on the day in question?
By which side of the road was the accused driving?
Cont’d
• Questions which require answers “Yes” or
“No” are most likely to be leading question.
• Unless It relates merely to introductory matters
or identification; or
• - It is a fact which is not in dispute;
• - It is a fact which in the court’s opinion, had
already been proved or put in evidence by the
other; or (see s198(2) EA)
• - It is necessary.
Hostile Witnesses
s209 ands 210
• A situation may however arise, where the
witness has been bought over or afflicted
with malice or annoyance and in the judge‘s
opinion shows animus against the party that
called him.
• Accordingly, he may be induced to withhold
facts, which are favourable to his party, give
contradictory evidence of the party or show a
reluctance to tell the truth.
Cont’d
• Once the witness is adverse he may, with the
leave of the court, be treated as a hostile
witness.
• He may then be contradicted by other
evidence from the party calling him or by
leave of the court; proof of earlier
inconsistent statements made by him may be
given by the party calling him.
Cont’d
• The party may now cross-examine that
witness, put to him leading questions and the
previous inconsistent statements and the
circumstances under which it was made and
treat him as if he was as opposing witness.
• The result is that the evidence of such a
witness becomes unreliable while at the same
time his previous statement does not
constitute evidence either.
Cond’t
• The judge will refuse leave to treat the witness
as hostile unless he is convinced that the
witness is biased or poised to damage the
party who called him or her.
Refreshing Memory (Ss. 217-219)
• It is not uncommon that a witness while giving evidence may find it
difficult or impossible to recollect a particular fact without refreshing his
memory from a record or a document.
• A witness may thus refresh his memory with the leave of the court from
such a document provided that
• (a)the writing was made by the witness at the time the transaction was
still fresh in the memory of the witness i.e contemporaneous with the
transaction.
• (b) A witness may also refresh his memory from a document which,
though not made by him, was read by the witness at the time aforesaid
(the document itself therefore must have been made at that time) and
recognized and accepted by the witness as accurate. Where a witness.
• © leave of court is sought
Cross-examination S.
191,193,194,195,199,201, 202 EA).
• On completion of the examination – in –
chief, the witness is cross-examined by the
other side. The examination of a witness, by a
party other than the party who calls him is
called: ‘cross-examination’.
The objectives of cross examinations are
• The objectives of cross examinations are:
• To test the accuracy of the evidence-in-chief.
• To weaken or destroy examination-in-chief, if possible.
• To obtain evidence that will assist the party’s own case
by the testimony of the opponent’s witness.
• To show that the witness is unreliable and for that
purpose may attack his testimony or credibility.
• To obtain necessary facts that may be favourable to a
party’s case or to weaken or dilute the strength of
evidence –in-chief.
The scope of cross-examination is wider
than that of examination-in- chief
• The scope of cross-examination is wider than
that of examination-in- chief.
• Cross examination is not limited to questions
raised in examination-in-chief;
• leading questions are allowed as are questions
designed to discredit the character of the witness.
• One may be cross examined as to previous
statement one has made relative to the subject
matter
Cont’d
• While there is a wide latitude given to the
party cross-examining in terms of the range of
such examination, it would be inaccurate to
state as is often done that “the sky is the
limit” in CR-EX. Relevance is still the test for
the validity of questions.
Cont’d
• NOTE:
• It is important to bear in mind that failure to
cross-examine a witness may amount to
admission of the fact as stated by him.
• Even where he is cross-examined the failure to
challenge him on the material facts as
presented by him may amount to an
admission
Cont’d
• Can the court rely on the evidence of a
witness who had given his testimony in
examination-in-chief but is not made available
for cross-examination by the opposing party?
• It appears that in so far as the testimony of
the witness has not been tested and tried
under CR-EX, it cannot be accepted by the
court as evidence
Co-accused
• Where several accused are standing trial, each
co-accused is entitled to cross-examine the
prosecution witnesses before they are re-
examined by the prosecutor. (see s 193 EA)
• Co-accused may cross examined a witnessed
called by another co-accused, that is before
the cross examination of the prosecution. (see
s194 EA)
Cont’d
• NB:
• Don’t ask a question that you don’t know the
answer for.
• You should put it to the witness after every
question
• Don’t ask too many questions unnecessarily
Re- Examination S. 193 (3).
• When the cross examination is completed, the
party who called the witness has the right to
re-examine him. Where a witness has been
cross-examined and is then examined by the
party who called him, such examination is
called ‘re-examination
object
• The object of re-examination is to clear up
doubts and ambiguities that arose in the
cross-examination.
• It must be confined to matters that arose in
the cross-examination.
• If a matter has not been dealt with under CR-
EX, it cannot be the subject of re-examination.
Cont’d
• Re-examination is not an occasion to remedy
errors or omissions made in EX-C or to
introduce new matters.
• In exceptional cases and with the leave of
the court, new matters may be raised in re-
examination.
• This would however entitle the opposing
party to cross-examine the witness on the
new matter.
Cont’d
• In a nutshell, The object of re-examination is
to repair, as much as practicable, the damage
done during cross examination and to clear
up any misunderstandings of ambiguities that
may have arisen during cross examination.
Notes Based on:
• Hassan B. Jallow, The Law of Evidence,
(Revised Second Edition 2016)
• Ifidon Oyakhiromen, PhD. BL, NATIONAL
OPEN UNIVERSITY OF NIGERRIA, LAW OF
EVIDENCE II
