A PRESENTATION

BY
AU20/05/LW001

IN THE DEPARTMENT OF

INTERNATIONAL LAW AND JURISPRUDENCE

ON THE 22ND OF MARCH, 2024.

SUBMITTED TO
ROSETTA O. ISIAVWE.

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TABLE OF CONTENTS

CHAPTER1: ESTOPPELS
1.1 INTRODUCTION……………………………………………..3
1.2 NATURE OF ESTOPPEL………………………………………3
1.3 CLASSIFICATION OF ESTOPPEL……………………………..7
1.4 CONCLUSION……………………………………………………12

CHAPTER2: COMPETENCE AND COMPELLABILITY

2.1 INTRODUCTION …………………………………………………13
2.2 COMPELLING AND COMPELLABILITY OF WITNESS……….14
2.3 COMPETENT AND COMPELLABLE WITNESS………………….16
2.4 CONCLUSION ……………………………………………………….22

CHAPTER 3: TAKING OF ORAL EVIDENCE AND THE EXAMINATION OF

WITNESSES
3.1 INTRODUCTION …………………… ………………………………..23
3.2 TAKING OF ORAL EVIDENCE: The Oath……………………………..23
3.3 TAKING OF ORAL EVIDENCE: Some Special Provisions……………….24
3.4 EXAMINATION IN CHIEF…………………………………………………..24
3.5 CROSS-EXAMINATION………………………………………………………27
3.6 CONCLUSION…………………………………………………………………..29

CHAPTER 4: OFFICIAL AND PRIVILEGED COMMUNICATIONS

4.1 INTRODUCTION……………………………………………….29
4.2 PRIVILEGE ………………………………………………………30
4.3 TYPES OF PRIVILEGE………………………………………… 30
4.3 CONCLUSION…………………………………………………..34

CHAPTER 5: THE SERVICE IN ONE STATE OF WITNESS SUMMONS AND OTHER

PROCESSES ISSUED IN ANOTHER STATE
5.1 SERVICE OF WITNESS IN ANOTHER STATE………………….35
5.2 CONCLUSION …………………………………………………….36
5.3 REFERENCES………………………………………………………37

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 CHAPTER ONE

ESTOPPELS
1.1 INTRODUCTION
The doctrine of estoppels is a heritage from the English Criminal Law, which bars a party to a
suit to renege from or doing the contrary of which he or she has led another to believe and the
special case of relving on a previous judgment as conclusive of the issue or issues in dispute.
Statutory provision relating to Estoppels can be found in part X of the Evidence Act of 2011,
the Matrimonial Causes Act, the Federal Republic of Nigeria Constitution, 1999 and the
Rules of various High Courts of Justice. We shall refer to them in this unit. By its nature,
estoppel is an admission - something which the law of evidence considers as conclusive and
parties are not allowed to plead against it or advance contradictory evidence. The court
considers it only fair that a person's own act or acceptance should prevent him or her from
alleging the contrary.

1.2 NATURE OF ESTOPPEL

Estoppel is a term that defies precise definition. It can be better described than being
defined. It connotes in common law dispensation a bar or impediment which precludes
allegation or denial of a certain factor of state of fact in consequence of previous allegation
or denial or conduct or admission or in consequence of a final adjudication of the matter in
the court of law. It is the principle that precludes a person from asserting something contrary
to what is implied by a previous action or statement of that person or by a previous pertinent
judicial determination. 1 It is a rule that prevents or precludes a person from blowing hot
and cold at the same time.

It has been held in Attorney General of Nasarawa State vs. Attorney-General of plateau
State,2 that by the operation of the rule of estoppels, a man is not allowed to blow hot and
cold, to affirm at one time and deny at the other or to approbation and reprobate. The issue
whether estoppels is a rule of substantive law, or a rule of law or same can be used as a

1 Bangbebin V. Oriare (2009) 13 NWLR (pt. 1158) 370 at 374.

2 (2012) 10 NWLR (pt. 1309) 419 at 449.

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 sword or a sword and shield have been subjected to diverse interpretations by our courts3.
The Evidence Act clearly incorporates the doctrine of equitable estoppel in Section 1694.
The section provides:

When one person has, either by virtue of an existing court

judgement, deed or agreement, or by his declaration, act or
omission, intentionally caused or permitted another person
to believe a thing to be true and to act upon such belief.
neither he nor his representative in interest shall be allowed,
in any proceeding between himself and such person or such
person's representative in interest to deny the truth of that thing

From this provision there are certain silent factors that ought to be present for estoppels to arise
viz:

1. There must be a representation either by express words or conduct;

2. The representation which must relate to a state of affairs must be intended by the
maker to be acted upon; and
3. That by reason of acting upon it the representee suffered some detriment or has
altered his position.
The point must however be made, that where the representation involves an illegality, the
person making the representative cannot be estopped from denying it, by the person who
acted on the representation, expressed in the maxim ex turpi cause non oritur actio.5

Estoppel can be regarded as a matter of pleading, but it is certainly not entirely a matter of
pleading. Any party wishing to rely on it must raise it in his pleadings and state the relevant
facts upon which he hopes to rely at the trial to make out the plea.6 In Michael Obanye
v.Okwunwa & ljoma7it was held that estoppel must be pleaded before the trial court
otherwise it could not be raised on appeal. it would appear, however, that if the estoppel
relied upon is one by conduct then a party can rely on it at the final court of appeal. This was

3 In Opawoze V. TUDI (2004) INEWLR (pt. 884) 290 at 295.

4 Formerly Section 151 of the Act.
5 Onanmade V. ACB (1997) 1 SCNJ 65.
6 Chellaram &Sons V. G.B. Oil ant Ltd. (1994) 10 W.A.C.A. 77.
7 (1930) 10 N.L.R. 8.

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the decision of the majority of the Supreme Court, Bairamian and Taylor F.JJ. in Agusto v.
Joshua8

1.3 CLASSIFICATION OF ESTOPPEL

1.3.1 ESTOPPEL BY RECORD
Estoppel per record simply precludes the parties from re-litigating the same cause of
action. Section 173 and 174 deals with res judicata and issue estoppel.9 Galadima JSC in
Makun V. Federal University of Technology 10 noted that these sections seek to bring an end
to litigations by ensuring that one is not proceeded against the second time for the same cause
that has been decided by a court of competent jurisdiction.
Section 173 of the Act provides:
Every judgment is conclusive proof, as against parties and privies of facts
directly in issue in the case, actually decided by the Court, and appearing
from the judgment itself to be the ground on which it was based; unless
evidence was admitted in the action in which the judgment was delivered
which is excluded in the action in which that judgment is intended to be
proved.
By this section certain conditions must be satisfied for a reliance on estoppels by
record to be successful, viz:
1. For a plea of estoppels by record to be raised, the parties must be the same, that is, the
parties in the previous suit in which the judgment was given and the ones in the
present case must be the same. But this does not mean, that they must necessarily be
one and the same persons on record, it is enough if such persons are children
executors or privies to the original parties.11
2. The issue and subject matter in dispute must be the same;
3. There must be a valid and subsisting judgment 12and this includes the fact that the first
court must have had the jurisdiction to try the matter and the judgment must be on the
merit not on default,13 also there must be no fraud collusion.

8 (1962) 1 All N.L.R. 312.

9 Formerly section 54 of the repealed Evidence Act.
10 (2011) LCN/3774 (SC).
11 Green V. Green (1982) 2 NSCC 195.
12 A judgement of a court is still operative as estoppels per rem judicatam even where that judgement has been appealed

against but has not been overruled-Agbogunubr V. Depo (2008) 3 NWLR (or. 1074) 217.
13 Abubakar V. Yaradua (2008) 19 NWLR (pt.1120) 1.

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According to Section 64 of the Act in order to avoid the effect of a judgment, a party to a suit
or other proceeding may show that any judgment which is being relied upon by the adverse
party was delivered by a court without jurisdiction, or was obtained by fraud or collusion. In
AG Nasarawa State VS. AG Plateau, 14the Supreme Court held that for the plea of estoppel
per rem judicatam to succeed, a party relying on it must establish the following
facts.
1. That the parties or their privies involved in both the previous and the proceedings
in which the plea is raised are the same;
2. That the claim or issue in dispute in both proceedings are the same,15
3. That the subject matter of the litigation in the cases is the same,
4. That the decision relied upon to support the plea is valid, subsisting and final;
5. That the court that gave the previous decision relied upon to sustain the plea was a
court of competent jurisdiction.
The burden of proving these conditions is on the party who sets up the defence and it
must be proved conclusively. In this case, the court refuse to uphold the plea of
estoppels, per rem judicatam, because the court found that even if the parties in the
two suits are the same, the claims and the res of litigation in the two suits are did
different.

Estoppel by record includes:

1. Judgments of the Courts of Record
(i). Cause of action estoppels
This is where a cause of action which has been litigated upon between the parties and finally
determined by a court of record, having jurisdiction in the matter is brought again in a
subsequent proceeding between the same parties
(ii). Issue estoppels:
Issue estoppels arises where a fact in issue in the first cause of action has previously been
decided and the same fact comes again in question in a different subsequent suit between the
same parties
As regards estoppels by judgment, the general principle is that:
i. it is for the common good that there should be an end to litigation and

14 (n2).
15 This is the line that distinct issue estoppel from cause of action estoppels.

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ii. no one should be sued twice on the same ground.
In essence, every judgment is conclusive evidence for or against all persons, whether or not
they are parties, of its own existence, date and legal effect, except as to the accuracy of the
decision. To create estoppels, therefore, the judgment must be unimpeachable, final, decided
on the merit, pronounced by a competent court and obtained neither by fraud nor by
collusion.

A judgment is not evidence of a fact, which was not directly decided; e.g. Collateral matters
or matters that were incidental or merely inferable from arguments. Accordingly, objections
may be raised when the other party seeks to tender a judgment as evidence of the facts
decided on the ground that:
i. It is not a formal judgment. It is only a final judgment when the rights of the parties have
been determined, even though an appeal is possible
ii. It was not decided on merits; e.g. if it was dismissed for want of prosecution.
iii. It is collusive, fraudulent or forged.
A judgment in rem is adjudication as to the status or condition of some particular subject
matter of a Tribunal, having competent authority for that purpose. Such judgment is in rem
juidicata e.g a divorce, declaration of legitimacy, condemnation of a prize court, or
adjudications in bankruptcy. The estoppel that arises in subsequent proceeding on the same
subject is estoppel per rem judicatum – a rule of evidence whereby a party (or his privy) is
precluded from disputing in any subsequent proceedings, matters which have been
adjudicated upon previously by a competent court between him and his opponent.

A judgment is a conclusion for or against all persons, of whatever matter it settles, as to the
status of persons or property, the rights or title to property or whatever disposition of property
or proceeds of sale it makes or other matters actually decided. The reason is that public policy
demands that questions of status and the like should not be left in doubt.
For example, A decree of dissolution or nullity of marriage on the ground that the marriage
has broken down irretrievably, alters the status of the erstwhile spouses, and the ground of
divorce binds the parties and privies but not strangers. Thus in Hill v Hill16. W petitioned for
divorce on grounds of cruelty, alleging several acts of violence against H. Dismissing the

16 (1954) PD 291.

7
petition, the court held that the acts as were complained about did not amount to cruelty. H
later petitioned for divorce on the ground of W’s desertion. W pleaded justification based on
acts of violence she had alleged on the previous proceedings. Held W is estopped. Also in
Ezenwani v Onwordi17 the Supreme Court held that since the issue of traditional history has
been decided in an earlier case between parties on the same land in dispute, it has become
issue estoppel and inadmissible in a subsequent suit between the same parties.
Res Judicata operates not only against the party whom it affects but also against the
jurisdiction of the court itself. The party affected is stopped per rem judicatam from bringing
a fresh action before the court or from proving anything, which contradicts his previous acts
or declarations to the prejudice of a party. The plea of res judicata prohibits the Court from
inquiring into a matter already adjudicated upon. Its effect is to oust the jurisdiction of the
Court.
Judgment in Personam
A judgment in personam is conclusive evidence only so far as the parties to the suit and their
privies are concerned not only as the matters actually decided but also as to the grounds of its
decision when these again come in controversy between the same parties and privies.
Examples are ordinary judgment between parties in cases of contract, tort and crime, being
against a person and not against a thing. The reason is that the public policy does not
encourage litigation. The principle – nemo bis vexare debet – forbids a person to be vexed
twice over.
Conditions precedent for estoppel in personam to operate:
i. The parties and privies against whom the judgment is tendered must be suing in the same
right or same capacity as in the former proceedings.
ii. The matter in dispute must be the same in both proceedings.
The judge decides on the question of identity of issues and the test is whether the same
evidence would support both actions.
What this means is that an action in tort will not estoppel an action in contract arising from
the same faults. The duty of care owed by one driver to another differs from duty of care
owed the passengers by the driver.
Estoppel also applies in Administration Actions. Consequently, a party who has acquiesced in
the distribution of funds is stopped from a subsequent application to revoke the letters of
administration. However, the fact of a conviction is admissible in civil proceedings.

17 (1987) LPELR-SC.

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3.4.6 Judgment in rem and judgment in personam.
The distinction between judgments in rem and in personam is explained in DIKE v
NZEKA18Here the Court said:

A judgment is said to be in rem when it is an adjudication pronounced upon the status of

some particular thing or subject matter by a tribunal having the jurisdiction and competence
to pronounce on that status. Such a judgment is usually and invariably founded in
proceedings instituted against something or subject matter whose status or conditions is to be
determined. It is thus a solemn declaration on the status of some persons or things. It is
therefore binding on all persons in so far as their interests in the status of the person or thing
are concerned. That is why a judgment in rem is binding on the whole world – parties as well
as non-parties.

A judgment in personam, on the other hand, is a judgment against a particular person as

distinguished from a judgment declaring the status of a particular person or thing. A
judgment in personam is a judgment inter parties. It creates a personal obligation as it
determines the rights of parties inter se to or in the subject – matter in dispute whether it is
land or other corporeal property damaged, but does not affect the status of either of the
parties to the dispute or the thing in dispute.

1.3.2
ESTOPPEL BY AGREEMENT
Estoppel by Agreement: Sections 170, 171 and 172 19of the Evidence Act encapsulate
the principles of estoppels by agreement. This form of estoppel is base, on the agreement of
parties hence, none of the parties is allowed to deny or act contrary to such agreement20 By
Section 170 of the Act, where a tenant has accepted a tenancy from a landlord or a licensee
receives a license to be on a land on the authorization of the person in possession, such a
tenant or person would be estopped from denying the title of the landlord. Hence, where a

18 (1986) 4 NWLR 144.

19 Formerly Sections 152,153 and 154 respectively.
20 AG Nasarawa(n2).

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person has been paying rent to another person as landlord, such a person would be estopped
from denying that the person to who he had earlier paid rent is not his landlord. 21

According to Section 171 no bailee, agent or licensee is permitted to deny that the goods
entrusted to any of them belongs to the bailor principal or licensor. Although no estoppel
applies where the bailee, agent or licensee is compelled probably by an order of court that
another person other than the bailor, principal or licensor is the one rightfully entitled to such
goods or that without notice to the bailee, agent or licensee same was wrongfully obtained by
the bailor principal or licensor.

Also according to Section 172 of the evidence Act, the contents of a bill of lading in the
hands of a consignee or endorsee for valuable consideration is conclusive and it applies as an
estoppels against the master of the ship or other person that signed such lading that the goods
so named in the bill of lading were actually shipped on board a vessel even if some part of the
goods had not been shipped. But no reliance can be placed on the content of the bill of lading
if the consignee or endorsee had actual notice that the goods had not in fact been laden on
board. Provided however that the master or other person so signing it, may exonerate himself
in respect of such representation by showing that it was caused without any default on his
part, and wholly by the fraud of the shipper or of the holder of the bill lading or some person
under whom the holder holds.22 The point must be made that a law passed by the National
Assembly cannot be used to estop a State from challenging the validity of the law, although
every State is represented there and may be taken as an agreement of all parties concerned.

ESTOPPEL BY CONDUCT
Estoppel by Conduct: A person would be stopped from denying a certain state of affairs
where his previous conduct has led another to believe in the state of facts, and acts upon
it.23In Obineche vs. Akusobi,24the court held inter alia that the rule as to estoppels by conduct
is that a party who knew of, but took no part in previous proceedings, is bound by the
decision in those proceedings. In other words, if a party stands by and allows another to fight
his battle in a litigation which touches on his interest, he cannot be heard later on to

21 Ozokpo V. Paul (1990) 2 NWLR (pt. 133) 494.

22 Provision to Section 172 of the Act.
23 Nsirim V. Nsirim (2002) 3 NWLR (pt. 755) 697 at 700.
24 (2010) 12 NWLR (pt. 1208) 383 at 405-406.

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complain. Thus, where a land owner stood by and knowingly by his inaction, allowed a
stranger to develop his land in good faith without the owner appraising the stranger of the
defect of his title, then the doctrine of acquiescence and standing by, may be properly
involved to estop the owner from reaping the benefit of the stranger's labour. In the instant
case, the court held that the appellants could not fold their arms and allow members of
Umuchoke family to fight their battle and thereafter turn around to take the benefit of the
situation.

Estoppels by conduct, which is a common law doctrines has gained statutory acceptance in
Nigeria under Section 169 of the Evidence Act. It forbids a person from leading his opponent
from believing in and acting upon a state of affairs only for the former to turn around and
disclaim his act or omission.25

Estoppels by conduct could take the form of standing by, that is, where a person folds his
hands and watches another party to fight his fight. By so doing he will be laken to be bound;
it could also take the form of acquiescence whereby a person by his conduct would be taken
to have accepted the position asserted by the other party. Under any of these circumstances
estoppels by conduct is property
constituted.

ESTOPPEL BY DEED
Estoppel by deed is more in conformity with the common Law and has no apparent
equivalent in the Evidence Act.- The closest however to this type of estoppels is provision of
Section 16226 of the Act which provides for this presumption of accuracy of statements in
documents, deeds, instruments, Acts of the National Assembly, statutory Declarations
twenty years old or more.

Finally, it must be noted that estoppels being an equitable remedy cannot be invoked. to
cover the absence of jurisdiction of a court of law. In other words estoppels lacks the legal
capacity to revive an act which is a nullity ab initio.27

25 A.G NASARAWA STATE(n2).

26 Formerly section 30.
27 FRN v. Ifegwu (2003) 15 NWLR (pt.842) 133.

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As observed earlier, the doctrine of estoppels is hinged on certain rationale. Fisty, that it is in
the interest of the State that there should be an end to litigation.28 Secondly that nobody ought
to be vexed twice and it is on these rationales that estoppel applies to criminal proceedings.
Section 36 (9) and (10) of the 1999 Nigerian constitution (as amended forms the
bedrock of this principle. The sub sections simply imply that where a person has been
previously tried and acquitted or convicted on a charge or otherwise where a person has been
pardoned for an offence, he shall not again be tried and convicted for that same offence, as
the prosecution is estopped fro bringing the same change upon which such person had earlier
been pardoned or acquitted (autre fo is acquil or convicted (autre fois convict) respectively.
The doctrine of estoppel therefore applies to both civil and criminal proceedings.

1.4 CONCLUSION
Thus an Estoppel is a rule of evidence which precludes a person from denying the truth of
some statement formerly made by him or her or the existence of facts upon which a judgment
against him or her is based. Estoppel is a shield, not a sword, a defence; not a cause of action.
A party who wishes to avail such estoppels, whilst there cannot be cause of action stopped as
between a criminal and a civil action, there can be issue estoppels. Estoppel is based on the
rule of public policy that there should be an end to all litigations and no one should be sued
twice on the same ground(s).

28 Bassey V. Bassey (2018) LLJR-SC.

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 CHAPTER TWO

COMPETENCE AND COMPELLABILITY

2.1 INTRODUCTION
The main issue of concern is whether a witness may legally give evidence in a judicial
proceeding. It is not about the question of reliability. There are legal disabilities forbidding
certainwitnessesfromtestifying. A very close and ready example is a child who by reason of
his age cannot understand the question that are put to him or her or give answers that can be
understood.

Competence and compellability do not mean one and the same thing. The mere fact that
a witness is competent does not make the witness ipso facto / compellable, as a witness may
be competent but yet not compellable owing to some legal restraints. However, a compellable
witness is a competent witness, as such witness cannot be compelled if he were not
competent at all. The general rule is that a witness is competent if he may lawfully give
evidence and compellable ifhe may lawfully be required to give evidence. Competence refer
to the ability to give evidence in a court of law. But who is in the eyes of the law a competent
witness? Section 175 (1) of the Evidence Act 2011 provides;

All persons shall be competent to testify, unless the court considers

that they are prevented from understanding the questions put to them
them, or from giving rational answers to those questions, by reason
of tender years, extreme old age, disease, whether of body or mind
or any other cause of the same kind.

What it means therefore is that immediately a person is possessed of sufficient intelligence to

be able to give rational answers to questions, then such person is competent to testify. Thus in
Solola vs. State,29 the Supreme Court noted that competency is not a matter of age but that
oF intellectual capacity. The eflect of this compore is that all persons irrespective of age are
competent to testify in court provided they have the mental capacity and the intelligence to
understand questions put to them.

29 (2005) 11 NWLR [pt. 937] 460.

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It is thus the law that even a person of unsound mind is not incompetent to testily unless he is
prevented by his mental infirmity from understanding the questions put to him and giving
rational answers to them. 30 It therefore follows that by the mere fact that a persons is insane
or of unsound mind does not ipso facto make such persons incompetent, as any evidence
given during his lucid interval is valid, as he will be competent then being able to understand
questions put to him and giving rational answers to them.
It is proposed, that in this part we shall treat the competence and compellability of witnesses
in civil proceedings, as it applies to both civil and criminal proceedings. And in the
subsequent part, we shall treat it in criminal proceedings.

2.2 COMPETENCE AND COMPELLABILITY OF WITNESSES

Competence and Compellability of Witnesses in Civil Proceedings

In civil proceedings, just like in criminal proceedings the test of competence ofa person to
testify is underscored by the provisions of section 175(1) of the Evidence Act. The parties are
competent witnesses not only for themselves but also to the adverse parties. And this also
extends to their spouses. Section 17831of the Evidence Act provides inter alia that in all civil
proceedings the parties to the suit and the husband or wife of any party to the suit shall be
competent witnesses and it is immaterial that a subpoena had not been applied for and or
issued. Thus in Elias vs. Disu & Ors.,32where after some of the Plaintiffs had testified, the
defence upon opening its case applied to call one of the Plaintiffs as witness who did not give
evidence. The Plaintiffs' counsel did not object to the application but the trial judge suo motu
ruled that the Plaintiff was not a competent witness for the defence and rested his ruling on
the basis of absence of any precedent for such a course and on the fact that no subpoena had
been issued. The appellant who was dissatisfied appealed to the Federal Supreme Court
contending that the ruling made by the trial judge that the plaintiff under the circumstances
was not a competent witness for the defence was wrong in law.

30 Section 175(2) of the Evidence Act 2011.

31 It must be noted that even if by virtue of Section 178of the Evidence Act in all civil proceeding the parties to the suit and
the husband or wife of a party is competent, the law recognizes an exception in Section 84 of the Matrimonial Causes Act
when it comes to a suit between a husband and a wife none of the spouses shall be compellable to give any evidence which
would show or tend to show the illegitimacy of a child born to the wife during the marriage. Similarly such spouses shall
note be liable to be asked, or bound to answer a question the answer to which may show or tend to show that the party has
committed adultery -Section 85(2) of the Matrimonial Causes Act.
32 (1962) 1 All NLR 214.

14
Children As Witnesses in Civil Proceedings
As soon as a child is able to understand questions put to him and give rational answers to
those questions, the child can be a competent witness as long as they understand the necessity
to speak the truth. Before the enactment of the Évidence Act 2011, our legal jurisprudence
was thrown into turmoil as to who a child is and the competence to give sworn evidence. This
was occasioned by the lack of a definition of who a child is in the Evidence Act Cap E14 and
gave rise to the decisions in the cases of The State vs. Njoku Obia 33 Mbele vs. State.34Itis
therefore submitted that by virtue of the provisions of the Evidence Act 2011 the test laid
down by the Supreme Court in Okon vs. State" is inapplicable to the extent it tends to
determine when a child can give a sworn evidence. Section 209 (1) of the evidence Act
provides that immediately an individual has attained the age of 14 he can give a sworn
evidence.

Competence and Compellability of Witnesses in Criminal Proceedings

In criminal proceedings, the prosecution has the duty to call as much witness as it may be
considered appropriate to prove its case against the accused person.

Although the prosecution needs not call a barrage of witnesses to prove his case, as the law
by virtue of Section 200 of the Evidence Act does not require a particular number of
witnesses35 prove a particular fact, yet not every body may be called as witnesses, for even
where they are competent, they may by no means be compellable as witnesses.
In this part we shall consider the competence and compellability of spouses as witnesses, co-
accused, accomplice, children, accused persons and the incompetence and non-compellability
of certain persons.

33 4 ECSKR 67.
34 (1990) 4 NWLR [pt. 484].
35 Aside of fences requiring corroboration provided for under Section 201-204 of the Evidence Act.

15
2.3 COMPETENT AND COMPELLABLE WITNESSES

There are persons who are competent to give evidence yet they may not be compelled to
give evidence under the Evidence Act. It is to this Class of persons that we shall turn our
attention. Such persons include:

1. THE PRESIDENT, GOVERNORS AND DIPLOMATIC AGENTS:It is submitted that

neither the President of Nigeria and his Vice, nor any of the Governors and the Deputy
Governors of the 36 States in Nigeria are compellable witnesses 36They are however
competent witness. This is because of Section 308 of the Constitution which has clothed the
above mentioned office holders with immunity. It is right to postulate that this protection is
that of the person of the holder of the office and not that of the office itself.37As a result, such
peremptory applications like mandamus and certiorari could lie against the head of the
Government.
The reason for this immunity, one may venture to state is to prevent such office holders from
being harassed during their tenure in office with court processes.Apart from these political
office holders, foreign sovereigns, their ambassadors and other diplomatic agents are not
compellable witnesses though they are competent witness if they waive their immunities.I (1)
of the Act provides that every “Foreign Envoy and every consular officer, the members of the
families of those persons, the members of their official or domestic staff and the members of
the families of their official staff, shall be accorded immunity from suit and legal process”.
It is to say that by virtue of Section 2 of the same Act, all the persons so described above may
waive their immunities and where this is done, they become compellable since they are
originally competent witnesses. Such immunities derive from the sovereign immunity of the
country of origin of the diplomat as without sovereign immunity, the diplomatic immunity
would not arise. 38Subject therefore to the above provisions all aliens in Nigeria are
competent and compellable witness irrespective of the fact that they may not be literate in
English Language which is the official language of the Court in the present day Nigeria. To
overcome this dilemma,
such persons will have an interpreter for them during the court processes.

36 Section 308 of the Evidence Act

37 Shugaba Darman V president.
38 Oluwalogbon V. Government of UK (2005) 14 NWLR (pt. 946) 60 at 760.

16
2. CHILDREN: A child who is prevented from understanding the questions put to him or
from giving rational answers to those questions by reason of tender years is not a competent
witness. The first point to note here is that there is an age stated and it therefore becomes the
duty of each court before whom a child appears for the purpose of giving evidence, to
determine first of all whether the child is sufficiently intelligent to be able to understand
questions put to him/her and to be able to answer same rationally. For the court to discern
this, it must first put preliminary questions to the child which may not have any bearing with
the matter before the court. If as a result of the investigation, the court comes to the
conclusion that the child is unable to understand questions or to answer them rationally, then
the child cannot be a witness at all in the case. If however, the child passes the test, such a
child should be subjected to further tests for the determination of whether in the opinion of
the court such a child understands the nature of an oath. To ascertain this, the court puts
questions to the child as to whether he/she understands the nature of an oath. Where however
the child fails this test, he will nevertheless, give evidence albeit unsworn.39

This evidence of a child though not sworn is admissible as if it was sworn. It is relevant to
say
that keeping strictly to this procedure laid down by Sections 155 and 183 of the Evidence Act
has been emphasized by the courts in a number of cases40. It is also important to note that
where such evidence is unsworn, a person shall not be liable to be convicted of the offence
unless; such evidence is corroborated by some other material evidence in support thereof
implicating the accused.41

3. OLD PERSONS AND PERSONS SUFFERING FROM DISEASE OF BODY OR

MIND OR OTHER AFFLICTION
It will be right for us to restate that an old person no matter how old is a competent
witness, if he is able to understand questions put to him and to give rational answers to those
questions.42 For the court to find out whether a person of a particularly old age is a competent

39 Solola & anor V. State (2005) 11 NWLR (pt. 937) 460.

40 Sambo V. State (1993) 7 SCNJ (pt. 1) 128.
41 Section209(3) of the Evidence Act.
42 Section 175.

17
witness, the court ought to consider such a person by putting questions to him to test his
comprehension of the questions and his answers thereto. Thus the simple fact is that such a
person is a competent witness unless the Court declares otherwise by way of its own test
conducted on the potential witness.The same may be stated for a person suffering from
disease whether of body or mind. Such a person at all times material is a competent witness
unless he was prevented by virtue of the said disease. It is vital to note that a person does not
become incompetent to give evidence merely because he is drunk; he must be so drunk as to
be unable to understand the questions put to him or to answer them rationally.Where the court
is of the view that the disease or intoxication
or even the unsoundness of mind is only of a temporary nature and likely to disappear, it is
posited that the court may be justified in granting an adjournment in the case for purposes of
receiving such a person’s evidence provided it will not work injustice against any of the
parties.It is our opinion that reference should also be made of dumb witness as a dumb person
in literally speaking suffering from a disease. However Section 176(1-2) of the Evidence Act
has made ample provisions for such a person.

Thus once such a person can give his evidence in any other intelligible manner apart from
speaking; such a person shall be a competent witness for all intents and purposes. We agree
with the provision of the Act that for the court to find such a person competent, it must put
questions to him/her and be satisfied that such a person has passed the test. It is then and only
then that such a person may be allowed to testify in the manner provided for by the Act.43

4. ACCUSED PERSON:
It is pertinent here to refer to the Constitution which provides that no person who is being
tried for an offence shall be compelled to give evidence at the trial. 44 This is a fundamental
right of an accused person guaranteed under the Constitution. It forbids that an accused
person shall be compelled to be a witness whether for the prosecution or for the defence in
the same trial. However, an accused person may be a witness for the prosecution but for this
to arise, there must be one or more accused person charged along with the particular accused
person who is witness who is not on trial in the particular case but is facing trial for other
related offences to those which are the subject of trial at hand is also a competent witness. 45

43Section 176(1-2).
44Section 36(11).
45 R v. Omisade & Ors. (1964) NMLR 67.

18
For all intent and purposes an accused person is a competent witness but however not a
compellable witness. This is contained Section 180 of the Evidence Act. This is however
subject to the proviso in that section especially the proviso in Section 180
(a) which provides that such a person shall not be called as a witness except upon his own
application. This is further strengthened by the provison in Section 180
(b) to the extent that where he chooses to exercise his fundamental right to keep silent; such
an action shall not be the subject of any comment or inference by the adjudicating authority.

5.SPOUSE OF AN ACCUSED PERSON:

In Stein v. Bowman46 while recognizing the 'general rule that neither a husband nor wife can
be a witness for or against the other,' noted that the rule does not apply 'where the husband
commits an offence against the person of his wife.'To appreciate this subheading, we shall
adopt a two way division. One will be to the position on the side of the prosecution while the
other will be towards the part of the defence. We shall start with prosecution first.
a. PROSECUTION: The basic principle here is that the spouse of n accused person is not a
competent and by logic a compellable witness for the prosecution unless upon the application
of the other spouse who is on trial. The requirement of this provision is simple. The spouse is
not competent except a particular thing occurs. That particular occurrence is the application
of the other spouse charged with the offence. Thus the requirement is not that that the spouse
not on trial shall apply nor that the spouse shall consent to an application by such spouse not
on trial to testify. Simply it is left for the spouse who is facing trial to inform the curt that
he/she wishes the other spouse not on trial to testify in his case for the prosecution. As such
the prosecution cannot compel the spouse not on trial to testify on trial for them. It is right to
say that this provision avails only the husband and wife of a monogamous or Christian
marriage. We shall leave this argument on the fate of polygamous marriages or customary
law marriage for another time.
There are however exception to this provision as the section is not absolute. These
exceptions are contained in Section 182(1) (a-c) of the Evidence Act. Therefore where a
person is charged with an offence under any of the following sections of the Criminal Code
viz217, 218, and 219,221,222,223, 224, 225 226, 231, 300, 301, 340, 341, 357 to 362, 369,
370 and 371. 20Such offences include defilement of girls under 13, indecent practices
between males etc. In any of such charges framed against the spouse of a monogamous

46 (1839) 38 U.S. 209.

19
marriage, such spouses are prevented from taking cover under the umbrella of Section 182
(2) Evidence Act. This exception seems to arise on the ground of public policy. Further,
reference shall be made to other barrierscontained in Section 182 (1) (b and c) which also
operate to deprive spouse of this important protection as it stripes them of this legislative
immunity.
It is right for us to say that where a spouse of an accused person wishes to testify against a
person co accused with the other spouse, such a person does not need the application of the
person on trial. Be that as it may, where the evidence is such as to incriminate the other
spouse charged, the spouse not charged can only be called on the application of the spouse
charged.
It is also the provision of the Law that even where a spouse is a competent and compellable
witness, such a spouse cannot be compelled to disclose any communication made by the
other spouse to him/her during the existence of the marriage.47 This exception does not abate
even where the marriage has been terminated.
b. DEFENCE:
The position of a spouse for the defence is a lot simpler. A spouse of an accused person is a
competent and compellable witness for the accused if he/she is called as a witness by the
accused person. This remains irrespective of the offences for which the accused is standing
trial. It is also important for us to say that this is subject to the provisions of Section 182(3) of
the Evidence Act in respect of communications during the existence of the marriage. May we
add here that in a proceeding instituted in consequence of adultery, the husbands and wives of
the parties shall be competent witnesses in such proceedings.48

6. PARTIES TO A CIVIL SUIT, THEIR RELATIONS AND SPOUSE:

In all civil proceedings, the parties to the suit and invariably their spouses are competent
witnesses. They are not only competent witnesses for themselves but they are also competent
witnesses for the opponent notwithstanding that a subpoena is issued to bring him/her to court
as the fact of absence of a subpoena is immaterial to the question of competence.49 Section
178 of the Evidence Act further provides that “subject to the provisions contained in Section
165 of this Act, (in respect of birth during marriage) in all civil proceedings, the parties to the
suit and the husband or wife of any party to the suit shall be a competent witness”

47S. 182(3) Evidence Act.

48Section 186 of the Evidence Act.
49 Jinadu V. Esuromobi-Aso (2005).

20
Thus, there is nothing in the Act to prevent the spouse of parties to a civil suit from being
both competent and compellable witnesses for or against their spouses. However, it is vital to
point out that the provision in Section 184 of the Act will still apply unless the person who
made it or such a person’s representative in interest consents. This clearly does not apply to
suits brought between the spouses.One more thing need to be said and that is the fact that
relationship by blood be is not sufficient to disqualify the evidence of a witness.50What this
implies is that blood relations of parties to a suit if in a civil proceedings or accused person if
in a criminal case are both competent and compellable witnesses.

7. COUNSEL AS A WITNESS:
Like the preceding sub topic, we shall also take this in two sub divisions. Division one will
deal with the counsel as a witness for the opposing party while division two will deal with the
counsel as a witness for the client.
Under division one, there can be no doubt that counsel appearing for one party cannot give
evidence for the opposing party. This clearly is contrary to the ethics of the profession. 51
Thus, abcounsel instructed on a matter cannot give evidence for the party opposing his
instructor even where he has not appeared and does not infact intend to appear in the court
proceedings. Thus,the best thing for such a counsel to do is not to receive such instructions
from such a client, if he has instructions of testify on behalf of the other party. Nothing more
needs be said under this division.
Under the second division, there is no specific direct provision of the Evidence Act which
debars a counsel appearing in a case from giving evidence in the case. In other words a
counsel just like any other person is a competent witness in a case he is to handling for a
client. Thus the issue of whether to give or not to give evidence in a case counsel is handling
is governed by rules of common sense and ethics of the profession as the statutory provision
in existence deals with professional communications between counsel and client.
Generally speaking, counsel is not that free to give evidence for his client because of two
reasons. The first is that every litigant must feel safe when making disclosures to his counsel
and secondly, the counsel must be detached and impersonal in his attitude to the case so that
his judgment in the case be not clouded by personal feelings.52 these notwithstanding, there
can be no basis for objection to a counsel giving formal evidence on behalf of his client.It is

50 Akpan V. State (2001) 7 SCNJ 567 at 576.

51 Alfredcromption amusement machines Ltd V. Customs and Excise Commissioners (1972) 2 All ER 353.
52 Hon V. Rickard (1962) 2 ANLR 41.

21
also irregular but not illegal for a counsel to swear to affidavits in the course of the
proceedings in a
case which he is appearing if the facts deposed to are material to the determination of the
facts inissue between the parties.
In concluding this issue, we find it necessary to say that in as much as no law prevents a
counsel from so testifying, ethics of the professionand common sense should guide a counsel
in taking
decision relating to such issues and thus prevent the counsel from beclouding this reasoning
by virtue of personal attachment to the client’s case
8. BANKER
Generally speaking, a banker is a competent and compellable witness, in a matter relating to
his banking profession. However, such a banker cannot be compelled in any proceeding to
which the bank is not a party. He may not also produce any banker’s book the contents of
which can be proved in any manner provided in Section 89 of the Evidence Act or to appear
as a witness to prove the matter, transactions and accounts therein recorded unless by order of
the court made for a special cause. 53It is our opinion that this provision of the law is geared
towards maintaining the privity of contract between a bank and its customer and as well as
retain the comradeship of confidentiality in the banker customer relationship.Be that as it
may, the banker in his personal capacity is competent and a compellable witness subject only
to the provisions of the Act. As a professional, he however becomes competent but not
compellable with regards to his banking profession subject to the order of court made for
special cause.

2.4 CONCLUSION
A witness is competent if he or she possesses the mental ability to understand the
proceedings and make a decision. He or she is compellable if there is an allegation to give
evidence. Spouses and children occupy special positions, the law of evidence has specified
cases where they are competent, but not compellable or where they are both competent and
compellab

53 Section 177 of the Evidence Act.

22
 CHAPTER THREE

TAKING OF ORAL EVIDENCE AND EXAMINATION OF WITNESS

3.1 INTRODUCTION

It is not, strictly speaking, within the purview of a book on the law of evidence to deal with
the methods of bringing witnesses to court for purposes of giving evidence: those methods
are properly within the ambit of the law of procedure - criminal and civil. Similarly, the order
in which witnesses are produced and examined is specifically assigned to the law of
procedure by section 207 of the Evidence Act.
But the taking of oral evidence and the examination of witnesses are provided for in sections
of the Act following section 207 and 211.

3.2 THE TAKING OF ORAL EVIDENCE: The Oath

Generally a civil suit or a criminal case is tried by the court taking oral evidence from all
witnesses for all the parties to the action, and except, as is to be discussed presently, all oral
evidence given in any proceedings must be given upon oath or affirmation administered in
accordance with the provisions of the Oaths Act54(section 180 of the Evidence Act). But it is
not obligatory for every witness giving evidence in an inquiry or trial under the Criminal
Procedure Code to take an oath or make a solemn affirmation and a witness who refuses to
take an oath or make a solemn declaration cannot be compelled to do so. 55
And generally, in some cases, the court may take cognisance of admissions made by parties
to a suit in the court even though not made on oath. In Chief Aarun Nwizuk & Ors. v. Chief
Warribo Eneyok & Ors.56after hearing evidence on both sides, the trial judge went to inspect
the land in dispute in the presence of the parties. Both parties at the time of the inspection
made some admissions that parts of their evidence in court had been false. In dismissing the
claim of the plaintiffs, the court referred to an account of the inspection and the said
admissions.

54 Cap 333, Laws of the Federation, 1990.

55 Madu Manama v. Bornu N.A (1964) 1 All N.L.R 143.
56 (1953) 14 W.A.C.A. 354.

23
 3.3 THE TAKING OF ORAL EVIDENCE : Some Special Provisions

After the witness has been swor or he has affirmed, or in the case of a child, has been
allowed to give his evidence unsworn, the next thing is for the court to commence taking oral
evidence from him. Before commencing to take the evidence of the first witness in the cose,
however, the court usually orders witnesses on both sides to be kept out of court and out of
hearing. Section 207(1) provides that the court may on the application of either party, or of its
own motion do this but this does not apply to parties to the case or to their legal advisers even
if they are to be called as witnesses. Apart from ordering witnesses out of court, "the court
may during any trial take such means as it considers necessary and proper for preventing
communication with witnesses who are within the court house or its precincts awaiting
examination" (section 207(2)).

3.4 EXAMINATION IN CHIEF

Evidence in court is obtained through an orderly process called 'examination' and this
is usually done by taking oral testimony from the witnesses. The testimony of a witness at
any stage of his examination may be in one of these three forms namely;
a. Evidence in Examination-in-Chief
b. Evidence in Cross Examination and
c. Evidence in Re-Examination.

Examination-in-Chief is the examination of a witness by the party who called him -section
214(1) of the Evidence Act 2011. Examination-in-Chief refers to the examination of a
witness by the party who calls him. It is the opening part of a witness's testimony and starts
after he has been sworn or affirmed. A witness called by a party will be put through a series
of questions by counsel in attempt to elicit material evidence from him to substantiate facts
made by the party who called that witness.
The most important obiect of this exercise (which of course is the opening party of a
witness's testimony) is to elicit form the witness, evidence which is favourable to the case of

24
the party that invited him. Examination-in-Chief starts after a witness has been sworn or has
affirmed. In Examination-in-Chief, questions must be restricted or confined to evidence
directly relevant to the fact in issue. Questions relating to the witness's credit are not
allowed.it is also a fundamental rule in Examination-in-Chief, that leading questions are not
allowed or asked, and if a leading question is asked, the opposing party has the right to object
to its being admitted. But, a leading question can be asked if the court permits it: section
221(2) of the Evidence Act, 2011. By section 221(1) of the Evidence Act, 2011, any question
suggesting the answer which the person putting it wishes or expects to receive is called a
leading question. Thus, a leading question is one that suggests the desired answer. It may be
allowed in matters which are introductory or undisputed or which in the courts opinion have
already been sufficiently proved: section 221(3) of the Evidence Act, 2011. It may also be
allowed in order to refresh the memory of the witness. Lastly, questions assuming the
existence of a disputed fact are permitted or allowed.

Matters Arising in Examination-in-Chief:

1. Refreshing Memory
As a general rule, a witness is not allowed to give evidence by reading from a prepared
statement or note. They are expected to give evidence direct from memory unaided by any
external material. However, if certain conditions are met, they are allowed to read from a
prepared document in court to refresh memory before answering certain questions. The first
condition to be me that the document to be used to refresh memory must have been made
substantially at the same times as the occurrence of the event in which the witness is now
giving evidence.
In Amao v R.57, the trial court allowed a witness to refresh his memory by reading to him his
own deposition at the preliminary investigation which was taken five weeks after the incident
in which he deposed to. The Federal Supreme Court held that the Judge erred in allowing the
witness to so refresh his memory.

2. Discrediting One's Own Witness

Section 230 of the Evidence Act 2011 provides for discrediting one's own witness. Section
230 of the Evidence Act 2011, provides that the party producing a witness shall not be

57 (1959) 4 FSC 112.

25
allowed to impeach his credit by general evidence of bad character, but he may in case the
witness shall, in the opinion of the court, prove hostile, contradict him by other evidence, or
by leave of court, prove that he has made at other times a statement inconsistent with his
present testimony; but before such last mentioned proof can be given the circumstances or the
supposed statement, sufficient to designate the particular occasion, must be mentioned to the
witness and he must be asked whether or not he has made such statement.
Thus, if the witness proves unfavourable, he may be contradicted by other evidence
relating to the fact in issue by calling other witnesses or evidence. Note that the witness must
prove unfavourable before he can be contradicted. If the witness turns out to be unfavoursble,
treating him as a hostile witness is not automatic the Counsel must first seek and obtain the
leave of the court for the witness to be so treated and once leave is obtained, the hostile
witness can then be cross-examined or asked about his previous statements he had made
which is inconsistent with his present testimony. His credit could be impeached eventually by
cross-examining him with a view to discrediting his hostile testimony.

3.4.1 HOSTILE WITNESS

Who is a Hostile Witness

A witness is considered to be hostile when in the opinion of the court he bears hostile animus
to the party that called him to testify and then does not give him evidence fairly with a desire
and intention to tell the truth: song v R.58, Esan v The State59. To treat a witness as hostile,
application must be made to the court and the court's decision is final.
In forming its opinion on the matter, the court may consider the manner in which the witness
testified, for example, judging from his demeanor, attitude or disposition towards answering
questions as reflected in the reticence in his answers or acute over-zealousness to pre-empt
further questions: llouno v Chiekwe60

In Kline Incorporated V K.R.International Nig. Ltd.61, it was held that the law allows a party
to discredit his own witness if he applies to the court to treat him (the witness) as a hostile
witness. Once this application is successful, the witness is treated as a hostile one and the

58 (1976) 11 SC 93 & S. O.
59 (1976) 11 SC 93.
60 (1991) 2 NWLR 316.
61 (1993) 5 NWLR (Pt.159) 105.

26
procedure is consistent with a declaration of overt enmity. The witness then will be cross
examined with a view to discrediting him. The previous statement of the
witness must be put to the witness. And then he must be asked whether he made such
statement.

3.4.2 PREVIOUS CONSISITENT STATEMENT

The rule is that, generally, a witness may not be under examination-in-chief, whether he
had said something previously, much the same thing he is saying now. The fact that he might
had said so may not be proved: R V Roberts62. In that case, the accused person was charged
with murder; by shooting a girl who was letting the accused person into her home. His
defence was that the gun went off accidentally when he was trying to make up with the girl.
Two days after the incident, he told his father that his defence is going to be accident. At the
trial, he wanted to bring his father to testify on that fact. The court of 1st instance refused to
let or allow such evidence from the father and that was upheld on appeal.

3.5 CROSS EXAMINATIONS

This is done by the opposing party (or his counsel) to test the credibility of evidence-
in-chief of opponent's witness, attack opponent's case or discredit the witness (his
evidence or qualification). Indecent, scandalous, insulting and annoying questions are
not allowed-227 and 228 EA. A party can also cross examine his own hostile witness.
Cross examination is a fundamental right-sc 36(6) (d) Of the 1999 Constitution, Okereke v
Ibe63
Every party has a right to cross-examine a witness produced by his opposing party, in
order to test whether the witness has the knowledge of the things he testifies and if, upon
examination, it is found that the witness had the means and ability to ascertain the facts about
which he testifies, then his memory, his motives, everything may be scrutinized by the cross-
examination.
In cross-examinations, great latitude is allowed in the mode of putting questions, and the
counsel may put leading questions - section 197 of the Evidence Act.

62 (1942) 1 ALL ER 182.

63 (2010) ALL FWLR (Pt. 516) 516 CA.

27
However, where question asked in cross-examination relates to a matter not relevant to the
proceedings, except in so far as it affects the credit of the witness by injuring his character,
the court shall decide whether or not the witness shall be compelled to answer it, and may, if
it thinks fit, warn the witness that he is not obliged to answer the question section 201(1) of
the Evidence Act.
The purpose of cross-examination is firstly to establish and advance your own case and
secondly to attack the other side's case.
The object of cross-examination includes -
a. To destroy or damage material parts of the examination-in-chief so as to weaken it
and thereby reduce its weight.
b. To discredit the witness by showing that his evidence is unworthy of belief by reason
of bias, interest or his lack of honesty or lack of knowledge of the events to which he
testified.
c. If an expert witness, to discredit his qualification as such an expert and thereby
expose him as unreliable, incompetent, and ignorant of his chosen field of expertise.
However, a cross-examination of a witness is not always necessary or advisable. A witness
tells the truth wholly or partially, or he tells a falsehood. If he tells the whole truth, a cross-
examination may have the effect of rendering his testimony more circumstantial, and
impressing the judge with a stronger opinion of its truth.

3.5.1 RE-EXAMINATION OF WITNESS

This is the examination of a witness after he has been cross-examined. However, it is also
optional to re-examine a witness.
Section 188(3) of Evidence Act provides for the definition of re-examination. It states thus:

“Where a witness has been cross-examined and is then

examined by the party who called him, such
examination shall be called his re-examined."

28
Thus, from the above provision, it is obvious that reexamination is only done in instances
where there is cross-examination. Thus, if there is no cross-examination by the opposing
party, there will not be need for re-examination.
The purpose of re-examination is to give the witness an opportunity of explaining any
seeming inconsistency in his answers and to clear any doubt relating to matters in his
testimony. Thus, it is used to clear ambiguities arising from cross-examination and should be
restricted to only matters which arose in cross examination - Fatoba v. Ogundahunsi64. The
reason is that new issues are not allowed in re-examination, however, the court may, in its
discretion permit the introduction of new matters.
If such a new matter is introduced, the adverse party may cross-examine the witness again
based on the new matters
- section 189(3) of the Evidence Act.
In re-examination, leading questions are generally not allowed, but can be allowed in the
same way which it is allowed in examination-in-chief discussed above.

3.6 CONCLUSION
Part XII of the Evidence Act makes provision for examination of witness. There
are three types of examination: Examination–in-chief, cross – examination and re-
examination. You should remember the order in which they are called, their
objectives and limitations.

CHAPTER FOUR
OFFICIAL AND PRIVILEDGED COMMUNICATIONS

4.1 INTRODUCTION

Even where a witness is competent and compellable, as discussed in the last chapter, he
may be able, under certain circumstances, to claim privilege from answering certain questions
or from tendering certain documents. The privilege may be either a privilege of the witness
himself or that of another person whom he is representing. If it is his privilege, he cannot be

64 (2003) 14 NWLR (Pt. 840) 323.

29
compelled to give the evidence or tender the documents, but if it is the privilege of another
person he will not be allowed to give the evidence or tender the document unless the person
whose privilege it is waives the privilege. When privilege relates to a document this will
extend to secondary evidence of the document. This rule does not, however, prevent the other
party from tendering the privileged document or giving secondary evidence of it, except
where the document relates to affairs of state. 65
Where the trial judge has made an erroneous ruling in a case of privilege, and privileged
evidence has been accepted or non-privileged evidence shut out, an appeal will not
necessarily be allowed nor a new trial ordered.66 No adverse presumption should be drawn
from refusal to waive privilege, unless the privilege relates to the answering of incriminating
questions in the case of an accused person giving evidence for the defence.
Usually the claim to privilege is made by the witness himself, but there is nothing
preventing counsel from making the claim on his behalf. In some cases, the judge himself
tells the witness that he need not answer the question put. If the privilege is in respect of a
document, not being a document relating to state affairs, the court may inspect the document
to determine if it is privileged.
Finally, the point must be made that there are practically no reported cases in Nigeria on
this aspect, as most of the court rulings on this aspect of the law are usually interlocutory and
cannot find their way into the law reports. We shall now discuss the different types of official
and privileged communications provided for in the Act
.

4.2 TYPES OF PRIVILEGES

Judicial Officers: Information as to Commission of Offences

No judge can be compelled to answer any questions as to his own conduct in court or as to
anything which came to his knowledge in court in his capacity as a judge.67There is a similar
privilege in the case of a magistrate, but in this case a magistrate can be compelled to answer
such questions upon a special order of the High Court. This privilege does not extend to
questions relating to other matters which occurred in their presence whilst acting in their
official capacities (section 189).

65 Lloyd V. Mostyn. (1842) 10 M & W. 478 at 481-482.

66 R V. ariglake (1870) 22 L.T. 335.
67 R V. Harvey (1858) 8 Cox C.C. 99 at 164.

30
A magistrate or a police officer can claim privilege as to where he got any information as to
the commission of any offence. Similarly, no officer employed in, or about the business of,
any branch of the public revenue can be compelled to answer questions as to where he got
any information as to the commission by any person of any offence against the public revene
(section 190).

Affairs of State
Although it is of paramount importance that a party must be able to produce in court every
available piece of evidence in support of his case or for the destruction of his opponent's, yet
the security and the welfare of the state must be a limiting factor to this right. The limitation
in this respect is imposed by section 191 of the Act. Under this section, no one is allowed to
produce any unpublished official records relating to the affairs of state or to give evidence of
facts contained in such records except with the permission of the head of the particular
department concerned. In this connection "records relating to the affairs of state" must mean
the records of matters the publication of which may affect the public interest and/or public
security, defence or international relations. The character of the document is not the only
decisive factor, but the possible consequences of its publication on the state.4 Thus although
the court may restrain the publication of Cabinet proceedings and papers because of the
possible consequences of such publication to the State, after the lapse of a period of time,
such publication may become permissible if serious adverse consequences are no longer to be
anticipated.'

Jurors
A juror is not allowed to give evidence of discussions that have taken place between him and
the other jurors in the discharge of their duties as jurymen (section 189). For example, it has
been held in England, that an affidavit by a juror, that he did not agree to the damages
awarded. was not receivable in evidence. This section does not, however, prevent a juror
from giving evidence of matters taking place in open court. 68

68 Nesbitt V. Parett (1902) 18 T.L.R. 510.

31
Legal Practitioners
A legal practitioner is not allowed to disclose any communication made to him in the course
and for the purpose of his employment as such legal practitioner by or on behalf of his
client69Also he is not permitted to disclose the contents or the condition of any document
with which he has become acquainted in the course and for the purpose of his professional
employment. He must not disclose any advice he may have given to his client in the course
and for the purpose of such employment. The fact that the legal practitioner is in fulltime
employment of the client and he is on a monthly salary is immaterial.This privilege is that of
the client and not of the legal practitioner and it therefore can be waived only by the client
(section 192) These provisions are also applicable to interpreters and the clerks and agents of
legal practitioners (section 194)It is immaterial whether or not the attention of the legal
practitioner, the interpreter, clerk or agent is directed to the fact of the existence of the
privilege. and the obligation not to disclose continues after the employment has ceased
(section 193) The principle upon which this privilege is based is as stated by Holden J. in Iris
Winifred Horn v. Robert Rickard'4 as follows:
"Every client is entitled to feel safe when making disclosures to his solicitor or counsel, and
there are cases establishing firmly that counsel cannot be called to give any evidence which
would infringe the client's privilege of secrecy."
This general principle is subject to two main exceptions. First, any communication made in
furtherance of any illegal purpose is not privileged nor, secondly, is any fact observed by any
legal practitioner in the course of his employment as such, showing that any crime of fraud
has been committed since the commencement of his employment, privileged.

Doctor and Patient: Priest and Penitent

There is no part of the Evidence Act giving privilege to communications made between a
doctor and his patient and bctween a priest and a penitent. It is therefore obvious that any
communication passing between a doctor and his patient is not privileged. Yet the ethics of
the medical profession prescribe that a doctor should refrain from disclosing voluntarily to a
third party information which he has leamt professionally or indirectly in his professional

69 R v Imadebor Eguabor (1962) 1 All NLR 287.

32
relationship with a patient. In the over-all interest of the administration of justice however,
privilège must give way where there is a legal obligation arising either from a statutory
provision or from an order of a judge.70

Production of Title Deeds and Other Documents

A witness who is not a party in a suit cannot be compelled to produce his title deeds to any
property nor can he be compelled to produce any document by virtue of which he holds any
property on pledge of on mortgage. Similarly, he cannot be compelled to tender any
docurnent the production of which might tend to incriminate him. In all these cases the
privilege can be effectively waived only by an agreement in writing between him and the
person seeking the production of the documents in question (scction 185).
This privilege extends also to a person who is in possession of another person's documents
where the latter is entitled to the privilege.
A is in possession of B's title deeds or other documents mentioned in the last paragraph and B
is entitled under the rule in the last paragraph to refuse to produce them. Under the present
rule A cannot be compelled to produce them unless B consents to their production (scction
185).

Document Communicated for Limited and Restricted Purpose

Where a document was communicated to a person voluntarily, in confidence and for a
limited and restricted purpose, he cannot be compelled to divulge the document, or a copy of
it except for the purpose for which it was communicated, unless the court in its discretion
orders him to do so, which it will do if it is in the puhlic interest. 71However, the law would
not permit any person, including legal practitioners, to screen from the court information
which if disclosed to the court would perhaps enable a person accused of a crime to establish
his innocence or to resist an allegation made against him by the state.

The Privilege against Self-incrimination

The gencral principle is that no witness is bound to answer ary question if his answer, in the
opinion of the court, will have a tendency to expose the witness or the witness's spouse to any

70 Hunter V. Mann (1974) 2 All ER. 414.

71 Hubbard V. Vosper (1972) 1 All ER. At 1023.

33
criminal charge, or lo any penalty or forfeiture which the judge regards as reasonably likely
to be preferred or sued for (section 184).
The first point to note is that a person cannot refuse to go to the witness-box to give evidence
merely because he thinks that he might be asked incriminating questions. This privilege does
not amount to incompetency but only relates to the answering of individual questions.72
The next point is that it is the duty of the court in all cases to decide whether the question
would have the tendency to expose the witness or his spouse to a criminal charge etc. If the
question is one which will obviously call for an incriminating answer, then the cout will
probably rule in favour of the privilege without further investigation. But if the question is
not one which must obviously be answered in a way to incriminate the witness or his spouse,
the court may have to conduct further investigation into the matter to decide whether in fact
the answer which the witness will make is likely to incriminate him,

Statements without Prejudice

When there is a dispute between two parties, it is usual for them to enter into negotiations
with a view to arriving at a settleme. It is usual also that these negotiations are understood by
the parties to be conducted without prejudice to their rights to bring actions it court
subsequently if negotiations break down During these negotiations, admissions or facts are
made either orally or in a letter. If the letter in the latte- case is headed"without prejudice"
and is written with a bona fide infention of arriving at a settlement, the letter cannot be put in
evidence in a subsequent action without the consent of both parties to the negotiations.

4.3 CONCLUSION
A witness may claim privilege and be protected from answering certain questions or
from tendering certain documents. A privilege relating to a document extends to its secondary
evidence where it relates to the affairs of states, judge and magistrate.
There is the controversy whether the view of the official or of the head of the Department
(e.g. a Minister) that public interests would suffer from the disclosure in court is absolute or
whether it can be heard in camera.A witness is privileged from answering incriminating

72 Boyle V. Wiseman (1855) 10 Exch. 360.

34
questions. A statement made without prejudice does not apply to collateral facts that may be
discovered during “without prejudice” negotiation.

CHAPTER FIVE

THE SERVICE IN ONE STATE OF WITNESS SUMMONS AND OTHER PROCESSES

ISSUED IN ANOTHER STATE

5.1 SERVICE OF WITNESS SUMMOMS etc., In another state

To procure the presence of a witness in court for the purpose of testifying in a civil case or
the presence of any person to produce books or documents, it is usual, and sometimes
essential when it is feared that such presence cannot otherwise be obtained, to apply for the
issue of a subpoena or summons on the witness or the person concerned. When the witness or
the person concerned is resident within the jurisdiction of the court hearing the case, no
difficulty arises: the bailiff and other officers of the court within its jurisdiction are bound to
execute any process of the court. The different rules of court make provisions for this
situation and' for the situation where the person to be served with the subpoena or summons
resides in the State but outside the jurisdiction of the issuing court, and nothing more need be
said about these here. A completely different problem, however, arises where the person to be
served with these processes resides in another State within the country.

Section 253 of the Act provides that when such a process has been issued by any court in any
State in the exercise of its civil jurisdiction, in accordance with any power conferred by law
requiring any person to appear and give evidence or to produce books or documents, in any
proceedings, such process, by leave of the court issuing it, may be served on such person in
any other State. The leave will be granted only upon proof that the testimony of such person
or the production of such books or documents is necessary in the inuerests of justice; and it
will be granted only on such terms as the court may deem fit to impose. If a person on whom
a subpoena or summons has been served in accordance with this provision fails to attend at
the time and place mentioned in the subpoena or summons, the court may issue & warrant for
his apprehension as the court might have issued had the subpoena or suminions been meant
for service and had in fact be served in the State in which it was issued. Before this can be

35
done, however, it must be proved not only that the subpoena or the summons has been
served, but what is equally important, that the sum of money prescribed by law for payment
to such a person was tendered to him for his expenses (section 254).Any warrant issued under
this power may be executed in the other State in the manner provided in Chapter XV, that is,
sections 477 to 486 of the Criminal Procedure Act in the case of warrants issued for the
apprehension of persons charged with an offence (section 229(3)).
Sometimes, also, it may be necessary to obtain, for the purpose of a proceeding before the
court, evidence from a person serving a term of imprisonment in another State. In this
circumstance section 23001) provides that where it appears to a courl that the attendance
before in of a person who is undergoing a sentence of imprisonment in another State is
necessary for the purpose of obtaining evidence in any proceeding before the court, it may
issue an order directed to the superintendent or other officer in charge of the prison or place
where the person is undergoing the sentence requiring him to produce the person at the time
and place specified in the order. Any order made under this section may be served upon the
superintendent or other officer to whom it is directed in the other state. Once the order has
been served, the superintendent or other officer is bound to produce in such custody as he
thinks fit the person referred to in the order at the time and place specified in it (section
230(2)). In this case, no money need be paid or deposited in court before the order is obeyed,
but, on the production before the court of the person named in the order, the court may make
such order as to costs of compliance with the order as may seem just to it (section 230(3)).

5.2 CONCLUSION
All the above provisions apply to processes issued in all the High Courts and the
magistrates courts (section 228) of the county, including the Federal Capital Territory, Abuja

36
REFERENCES

1. B.E Ewulum and Obinna Mbanugu, ‘Competence and Compellability under the
Evidence Act of Nigeria’ () 2(1) South Asian Journal of Multidisciplinary Studies
(SAJMS).

2. C. Wigwe, Introduction to Law of Evidence, 1st Ed. (Osu-Accra, Mounterest

University Press) 2016

3. Iroye Opeyemi Esq, Law of Evidence II, (School of Law, NOUN)

4. Isochukwu, ‘Estoppels in Evidence’ available at https://isochukwu.com

5. Legal Emperors, ‘Examination of Witness’ (2016), available at

http://legalemperors.blogspot.com/2016/01/examination-of-witness.html?m=1

6. Law Global. ‘Privileged Communications’ available at

https://www.lawglobalhub.com

7. T. Aguda, The Law of Evidence, 4th Ed. (Ibadan, Spectrum Books,1999).

8. Wingrass, ‘Examination of Witness’ available at

https://www.google.com/search?q=examination+of+witness+wingrass&ie=UTF-
8&oe=UTF-8&hl=en-ng&client=safari

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