CIVIL LITIGATION: CIVIL TRIAL AND RULES OF EVIDENCE (2)

KEY POINTS TO NOTES FOR EXAM

POSER: EXCEPTIONS TO THE GENERAL RULE THAT TRIAL SHALL BE PROVED BY WRITTEN DEPOSITION OF WITNESSES IN COURT?

The general rule that trial shall be proved by the written deposition of witnesses in court is provided under ORDER 32 RULE 1 (1) LAGOS.

However the exceptions are;

1.      When parties have not agreed to certain documents during the Pre-trial procedure

2.      The tendering of Real evidence

3.      A witness on subpoena. SEE ORDER 32 RULE (1) (2-4)

POSER: ANNOUNCE YOUR APPEARANCE?

May it Please this Honorable Court, ………….

OATH TAKING

RULE: Every witness giving oral evidence must be cautioned by the court, or the registrar upon the court’s direction. The DRAFTING IS: SECTION 206 EVIDENCE ACT

            ‘’You (full name)…….. are hereby cautioned that if you tell a lie in your testimony in this proceeding or willfully mislead this court you are liable to be prosecuted and if found guilty you will be seriously dealt with according to law’’

N.B:  IN AFFIRMATION you will not have ‘’so help me God’’

TENDERING OF DOCUMENT Vs ADOPTING OF DOCUMENT

N.B: This two are different from each other. Always remember that you ADOPT your WITNESS STATEMENT ON OATH.

PROCEDURE FOR ADOPTING YOUR WITNESS STATEMENT ON OATH

1.      The court is to ask a witness as soon as he steps into the witness box whether he is a Christian, or a Moslem, or whether he belongs to any other religious body. He will be cautioned

2.      If the witness belongs to any of the above, he is sworn in accordance with the provisions of the Oaths Act

3.      The counsel ask him the following questions

a)      Tell this honorable court your name, address and occupation

b)      What are you here to do in court today?

c)      Did you make any written statement in respect of this matter?

d)      If you see a copy of the said statement can you recognize it?

e)      What do you want to do with the statement on oath?

My Lord, witness seeks to adopt this witness on oath as her examination in chief on this matter

N.B: Generally, counsel does not raises objection on the adoption of a witness statement on oath, except where the counsel have changed the statement.

PROCEDURE FOR TENDERING A DOCUMENT UPON WHICH THERE WAS NO AGREEMENT AT CMC THROUGH A WITNESS

1.      The court is to ask a witness as soon as he steps into the witness box whether he is a Christian, or a Moslem, or whether he belongs to any other religious body. He will be cautioned

2.      If the witness belongs to any of the above, he is sworn in accordance with the provisions of the Oaths Act

3.      Counsel will refer him to the paragraph in his witness statement on oath that is related to the document

4.      Counsel will ask him to take a look at the document to confirm if it the document in question (the document is taken from the counsel to the witness by the court clerk)

5.      If the witness confirms the document

6.      Counsel will ask him what he wants the court to do with the document

7.      The witness will reply that he wants the court to admit it in evidence

8.      Counsel will tell the court, My Lord we seek to tender this document in evidence.

It possible that the opposing counsel can raise an objection on the admissibility of the document to be tendered

 POSER: WHAT WILL THE COURT DO?

The court will allow the opposing counsel to address the court on the grounds of his objection, after that, the applicant counsel will then responds to the objection. THEN;

1.      The court makes a ruling on the objection

a)      If it upholds the objection, it will reject the document and it will be marked: ‘’TENDERED AND REJECTED’’

b)      If it overrules the objection, it will admit the document in evidence and mark it: ‘’TENDERED AND ADMITTED AS EXHIBIT’’

POSER: WHAT HAPPENS WHEN A DOCUMENT IN EVIDENCE IS REJECTED OR MARKED, ’TENDERED AND REJECTED’’

The party tendering the document cannot withdraw same for correction of the defect and it cannot be re-tendered for the same purpose in the same proceeding. SEE BABATOLA V ALADEJANA

So, the court will retain the document for record keeping until an appeal or the period of appeal expires. They are to be kept with the EXHIBIT KEEPER. SEE ORDER 30 RULE 17 LAGOS

N.B: If the counsel withdraws the document before he tenders the document, it will be retained by the counsel and he can re-tender the document.

       

                             REFRESHING MEMORY

STATUTE: SECTION 239 E.A

RULE: Due to the length of time between the period of transaction and testimony in court. A witness may be allowed to refresh his memory. This can be done at any stage of examination

PROCEDURE: You do this via oral application, you must obtain the leave of the court. But before you do this, you must have laid proper foundation.

RULE 2: The writing must be made by the witness at the time of the transaction concerning which he is questioned or so soon afterwards OR The writing made by any other person at the time of the transaction concerning which he is being questioned.

RULE 3: The witness cannot read out his testimony from the record. The operative words are ‘’REFRESH HIS MEMORY BY REFFERING TO THE WRITING’’

RULE 4: Experts may avail himself of the provision to refer to professional treaties while giving oral testimonies

CASE & RULES: The condition for its use is that the document was made when the transaction was fresh in the maker’s memory. Documents made when proceedings are anticipated cannot be used. See ANYEABOSI V. R.T BRISCOE.

                                                HOSTILE WITNESS

STATUTE: SECTION 230 E.A

RULE: It can only arise in the course of Examination in Chief and Re-examination

MEANING: A hostile witness is that witness that has shown Hostile Animus and is Unwilling to tell the truth. ESAN V STATE

TWO CONDITIONS:

1.      He must have displayed the hostility to the party who called him to testify

2.      He is unwilling to tell the truth

PROCEDURE: You do this via an oral application that the court should declare him an hostile witness.

EFFECT/IMPLICATION:

1.      His status changes from your witness to an hostile witness and

2.      His counsel can ask him leading questions

3.      He can cross-examine him

4.      His evidences can be disregarded by the court.

EXAMINATION-IN CHIEF

The purposes of examination-in-chief are as follows:

1. To elicit facts from a witness in prove of the case

2. To introduce facts relevant to the admissibility of documents in a party’s case

3. If it is a party to a case that is been examined, it may be to also pray the Court to grant his prayers or reliefs sought.

See S. 214(1) of the Evidence Act.

Types of questions to ask in examination-in-chief are open and relevant questions which will require the witness to explain the facts within his knowledge. Examples are questions that begin with who…? Why, whom, where/ etc.

Prohibited questions in examination-in-chief are as follows:

1. Leading questions that suggest the answers the examiner expects

2. Irrelevant questions to the facts in issue.

See S. 221(1) of the Evidence Act

Exceptions where leading questions can be asked are as follows:

1. Introductory matters like the name, address and occupation of a witness

2. Undisputed facts or facts already proved in a case

3. If permitted by the Court

4. A hostile witness who is adverse to the party calling him can be asked leading questions.

See S. 221(3)& (4) and 230 of the Evidence Act.

CROSS- EXAMINATION

PURPOSE:

1.      To contradict the evidence-in-chief of the witnesses of the adverse party

2.      2. To obtain evidence favorable to his client’s case

3.      3. To test the veracity of the witnesses’ testimony

4.      4. To shake the witnesses’ credit by injuring his character, see S. 223 of Evidence Act

5.      5. To discover who the witness is and his position in life

6.      6. To put the adverse party’s case to the witness

See S. 214(2) of the Evidence Act

SCOPE: Cross-examination must relate to the relevant facts, but the cross examination need not be confined to the facts to which the witness testified on his examination-in-chief. See SECTION 215 (2) E.A

POSER: Discuss the proprietary on the objection of a counsel that during cross-examination that sky is the limit to cross-examine

Generally, it is true that there is a wide latitude in the question that may be asked in cross examination, although the questions must relates to the relevant facts, but the cross examination need not be confined to the facts to which the witness testified on his examination-in-chief. See SECTION 215 (2) E.A

However, certain questions shall not be asked during cross-examination by virtue of the provisions of the evidence act;

a)      Question asked without reasonable ground. SECTION 225 &226 E.A

b)      Indecent and Scandalous questions. SECTION 227

c)      Question intended to insult or annoy. SECTION 228 E.A

RE-EXAMINATION

The purpose of re-examination is to clear ambiguities arising from cross-examination. New matters are not allowed to be brought here and leading questions are not also allowed. However if a new issue is introduced, the adverse party may apply to the Court to be allowed to cross-examine the witness on the new issue raised. See S. 214(3) of the Evidence Act

EXPERT WITNESS

GENERAL RULE: Opinion evidence is generally not admissible. Only the court is entitled to form an opinion based on empirical fact presented before it. This is subject to certain exceptions.

STATUTES: SECTION 67 & 68

ESTABLISHING THE CREDIBILITY OF AN EXPERT WITNESS

This is done through his witness statement on oath, which will state the following;

a)      His academic or professional qualification in his chosen field of expertise

b)      The extent of practice, experience or exposure in the chosen field of expertise

c)      Similar cases he has handled in the past prior to the case at hand.

IN AZU V STATE: The court held that there must be enough material on record to justify a trial court’s treatment of someone as an expert

IMPEACHING HIS CREDIBILITY

This is done through cross-examination and the counsel can do this;

a)      Challenging the validity of his inferences by using some other authorities

b)      Undermine his competence by taking him up on the limit of his academic, professional or occupation exposure

c)      Establish bias

d)      Make him draw different conclusion  to establish your case

e)      Pose your personal own view to him

IN AUDU V STATE: GROUNDS FOR REJECTING EXPERT OPINION

a)      Where it lacks logic or reasonable rationalization

b)      Where there is inadequate data analysis or basis to support the conclusion in respect of statistical or other scientific subject matter

c)      Where the court makes comparison of handwriting or signature and prefersits own conclusion from that of the expert

d)      Where there is a failure to give coherent or dependable account of the experts qualification or experience in the analysis of documents and handwriting.

SAMPLE FROM GROUP FOUR DRAFT ON EXPERT WITNESS

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

                                                                                                         SUIT NO. .....................

BETWEEN:

ROYAL ESTATE LIMITED................................................................                     CLAIMANT

AND

CHIEF JOSEPH LAMBE...............................................................              DEFENDANT

                                    WITNESS STATEMENT ON OATH (DW2)

I, LINDA NNAMDI,  Adult, Female, Christian, Nigerian, Graphologist of No. 5, Equity close, Victoria Island, Lagos, do make oath and state as follows:

1. That I am a duly Qualified, Independent, Certified Document Examiner and Graphologist and a Graduate Member of the British Institute of Graphologists since 1998.That I am a Graduate of two training courses in Questioned Handwriting and Document Examination since 2000.
2. I was awarded an undergraduate degree in Criminology 1992 from University of Bristol. I have a Masters in Document Analysis from University of Central Lancashire (MSc Document Analysis), 1997
3. That as a document examiner since 2000, I was employed at the Radley Forensic Document Laboratory, London from 2000 to 2010
4. That I started up Independent Graphologists and Forensic Document Examiner Firm in Nigeria since June, 2010 till date with registered office at 59, Selebia Street off Anifowokan Drive, GRA, Ikeja, Lagos where I work for both Nigerian and foreign clients.
5. That I take instructions from both private and professional clients and  my overseas client include the following countries – France, Spain, Poland, South Africa and  London
6. That by reason of my broad study and qualification, I have an understanding of issues relating to signatures and handwriting and other aspects of document examination that routinely arise in the field
7. That my particular areas of expertise include Forensic document and Handwriting Analysis, Examination of forgeries and counterfeit documents, Cheque Signature Identification and Handwriting Identification.
8. That I have appeared as an expert handwriting analyst in 17 trials from 2000 till date with the last 7 cases being in Nigeria.
9. That on the 5^th January, 2015, based on the instruction of the claimant, I analysed the signature on the original copy of the acknowledgment letter sent by the defendant, dated 15^th December 2014 and purportedly acknowledged by the secretary to the claimant
10. That in analysing the acknowledgement letter, I was given on request 3 other samples of the secretary’s signature contained in official documents affixed with the company’s seal which were dated before the beginning of the litigation process.
11. That each of the three samples were thoroughly studied and charted out which showed indications of a common trend in all of 3 provided samples. The chart is hereby annexed to this affidavit and termed “CHART 1”.
12. That after thorough analysis and comparison of the signature writings in the 3 samples and that of the acknowledgement letter, there is no evidence to suggest that the signature handwriting on the sample and that of the acknowledgement letter were made by the same person, but there is sufficient evidence to suggest that they were made by different people. The chart comparing the samples to the signature in the acknowledgement letter is hereby annexed to this affidavit and termed “CHART 2”.
13. That I make this statement in good faith believing same to be true and in accordance with the Oaths Act

 

                                                                                                                                                                    

                                                                                                               DEPONENT                   

SWORN TO at the High Court Registry; Lagos State

THIS 20^TH DAY OF JANUARY, 2015

                                                                                        BEFORE ME

                                                       __________________________________

                                                           COMMISSIONER FOR OATHS

EXAMINATION IN CHIEF OF THE LINDA NNAMDI, THE EXPERT WITNESS FOR THE  CLAIMANT

a.       Tell this Honourable Court your name and address and occupation

b.      Can you tell this honourable court your age?

c.       What is your Academic qualification

d.      What are you here to do in court today?

e.       Do you know the Claimant in this matter?

f.       How did you get to know the Claimant in the matter?

g.       What is the location of the property in question?

h.      How long have you been practising?

i.        how many cases have you appeared as a witness

j.        How accurate are your findings?

k.      Did you make any written statement in respect of this matter?

l.        If you see a copy of the said statement can you recognise it?

m.    What do you want to do with the statement on oath?

My Lord, witness seeks to adopt this witness statement on oath as her examination in chief in this matter.

n.      In paragraph 11 of your statement on oath, you referred to charts 1 will you recognise the documents when you see it??

o.      What will you like to do with this matter

My lord, the witness seeks to tender this document as evidence in this matter

p.      In paragraph 12 of your statement on oath, you referred to charts 2 will you recognise the documents when you see it??

q.      Where is it? 

r.        What will you like to do with the document?

My Lord, the witness seeks to tender this document as evidence in this matter.

CROSS EXAMINATION OF THE ESTATE VALUER, WITNESS FOR THE DEFENDANT

1. Can you tell this honourable court how old you are?
2. What are your academic qualifications?
3. You are an estate valuer and not an estate surveyor, True or False?
4. What is the address of the said property you valued?
5. Are you aware of the estate valuers board?
6. If Yes, that means you registered under them?
7. What then is the root of your qualified membership?
8. If No, Is there any other board you know of
9. If Yes, tell us
10. If No, How did you then become a qualified estate valuer?
11. Who recommended you as an estate valuer
12. To whom was this recommendation made?
13. Did you write any professional examination to become qualified as an estate valuer
14. If Yes, What are the document submitted for this purpose
15. If No, How then did you become an expert estate valuer?
16. How do you intend to prove to this honourable court of the purported valuation report of the said property you valued?
17. From your statement of oath, you are trying to say the claimant is not entitled to the sum claimed but only entitled to the one you valued True/false?
18. How do you intend to prove to this Honourable court the purported value of the said property?
19. In valuing the said property, you only considered the market price, True or False?

ETHICAL ISSUES

1.      A lawyer shall not engage in any conduct which is unbecoming of a legal practitioner – Rule 1 of the Rules of Professional Conduct (RPC), 2007.

2.      A lawyer shall not disclose his client’s oral or written communications – Rule 19(1) of RPC.

3.      A lawyer shall not conduct a civil case or make defence in a civil case when he knows or ought to know that it is intended merely to harass or to injure the opposite party or to work oppression or wrong – Rule 24(3) of RPC.

4.      A lawyer shall not participate in a bargain with a witness either by contingent fee or otherwise as a condition for giving evidence – Rule 25(2) of RPC.

5.      A lawyer shall not state or allude to any matter which he has no reasonable believe is relevant to the case or that will not be supported by admissible evidence – Rule 32(3)(a).

6.      A lawyer shall not intentionally or habitually violate any established rule of procedure or of evidence – Rule 32(3)(e) of RPC.

7.      If a lawyer is embarrassed by a client’s confidential disclosure, he has a duty to withdraw from the case under good cause; or to defend the client – Rule 21 of RPC.

8.      A lawyer must not do any act that will delay, obstruct or affect the administration of justice – Rule 30 of RPC.