RE-EXAMINATION:
BEYOND AMBIGUITIES
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BY TEMEDIE,
PETER-GREAT ESQ.
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INTRODUCTION:
In the legal world,
one concept that surfaces more often than not, especially during trial, is the
concept of re-examination. It is also a silent but salient tool in the hands of
trial lawyers in putting forward the cases of their clients through witness
fielded at the trial.
However, the concept
of “re-examination”, as useful as it is, has sadly been grossly misconceived
and misconstrued by the legal community generally, ranging from the academia,
to the bar, including the bench. This misconception expresses itself, and is
encapsulated, in the age long legal cliché, aphorism and axiom, to wit: “the purpose of re-examination is to
clarify ambiguity.” Consequently, lawyers attempting to re-examine their
witnesses called, after cross examination, in deserving circumstances, have
been unduly and unjustifiably shut out and denied their right to re-examine
their witnesses, under the guise that “there
is no ambiguity”, thus denying/depriving them of their fundamental right to
fair hearing guaranteed under Section 36
of the 1999 Constitution (as amended).
THE PURPOSE OF RE-EXAMINATION: AMBIGUITIES ALONE OR MORE?
The concept of
re-examination enjoys statutory flavor under Section 215 (3) of the Evidence
Act, 2011. It is therefore important to scrutinize the said provision of
the Evidence Act vis a vis decided authorities in order to ascertain the true purpose
of re-examination.
Section 215 (3) of the
Evidence Act, 2011 is reproduced ipsissima
verba thus:-
“The re-examination
shall be directed to the explanation of matters referred in cross examination
and if a new matter is, by permission of the court, introduced, in
re-examination, the adverse party may further cross-examine upon that matter.”
(Emphasis supplied)
Clearly, the above
section does not in any way provide, whether expressly or by necessary
implication, that re-examination shall only be directed to clarifying
ambiguities, and no more. One therefore wonders how the wide held view / opinion
in the legal cycle, that re-examination of a witness is limited to clarifying
ambiguities and no more, came about.
It is humbly
submitted that the purpose of re-examination goes beyond the clarification of
ambiguities and also includes the clarification of inconsistencies and
contradictions arising from cross-examination.
In Mohammed v. Gbugbu & Ors. (2018) LPELR
– 44494 (CA), the erudite Jurist of the Court of Appeal, BOLOUKUROMO MOSES
UGO, JCA, explained the purpose of re-examination at page 20 – 20 paras A-C thus:-
“Re-examination
is the witness opportunity of explaining any seeming inconsistencies in his
answers, and of stating the whole truth of any
matter which was touched on, but not fully dealt with, in cross examination
of clarifying facts, and to restore
credibility to his testimony: See Odgers on Pleadings and Practice, 20th
Edition, p.318, Okuley V. Adesanya (2014) 12 NWLR (Pt. 1422) 521 at 537;
Madumere V. Okafor (1990) 3 NWLR (Pt. 138) 327 at 357; Okoro V. State (2012)
ALL FWLR (Pt 621) 1471 at 1488 (S.C).”
(Emphasis supplied).
Thus, where the
evidence of a witness under cross examination, is inconsistent with or contradicts
the evidence earlier given by the witness during his evidence-in-chief, the
witness can and indeed ought to be given an opportunity of
explaining/clarifying, if possible, the inconsistency or contradiction, by way
of re-examination.
In the case of Fatoba v. Ogundahunsi (2003) 14 NWLR (Pt.
840) 219 – 445 at 323, the Court of Appeal, per WALTER SAMUEL ONNOGHEN, JCA
(as he then was) held inter alia is follows:-
“In the instant case, the appellant’s counsel ought to have re-examined their witnesses on
the nature of the relationship between the ancestor of the 5th respondents
and the founder of the family entitled to the Chieftaincy title in dispute to
which the appellant’s clam they belong, in
order to explain, if possible, the contradictions between the appellant
evidence in chief, and the evidence elicited from them on the issues under
cross-examination…”
Furthermore, the Supreme
Court has, in no uncertain terms, stated and re-stated this settled principle
of law that re-examination can be employed to clarify contradiction arising
from cross examination of a witness.
In Ibrahim v. Shaghari (1983) 2 SCNLR at 176, the
erudite jurist of blessed memory, KAYODE
ESO, JSC, held thus:
“A Court of law can only decide issues on the evidence
put before that Court. The rules governing the procedure in the court are so
elementary when it comes to presentation of evidence. Hence, the person who
alleges, presents his witnesses who give evidence-in-chief that is as per the
case he intends to put forward, the witnesses are cross-examined so as to put
forward the case of the defendants across and also to test whether or not the
witnesses are witnesses of truth. Indeed, during cross examination the defendant
is at liberty to put as many questions as are material to his case. He could
even be “cross” with the witness in his examination as the word “cross
examination” implies. There could
thereafter be re-examination to put right any adverse points wrongly elicited
during the cross-examination.”
Also in Aigbadion V. State (2000) 7 NWLR (Pt. 666)
534 - 706 at 686, (2000) LPELR – 264 (SC) where there was contradiction
between the evidence-in chief of PW 3, an expert physician, and his evidence
under cross-examination, the Supreme Court observed and held thus:-
“However, there is an aspect of the opinion evidence given by P.W 3 under
cross-examination which the learned trial judge did not seem to advert his
mind to. P.W 3 said there under “it is very difficult to say whether the wounds
were self inflicted or inflicted by someone else”. This clearly contradicts the positive opinion expressed by the
witness in his evidence-in-chief
that - “the wounds on the corpse could not have been self-inflicted. From all I
found on my examination of the corpse, the deceased could not have committed
suicide.” The effect of this contradiction is: should the learned trial Judge
rely on the evidence of P.W 3 to hold that it was the appellant that committed
the death of the deceased by strangulating her? It is the duty of the prosecution to explain the contradiction in
the doctor’s evidence either under re-examination of the witness or in their
address to the court after the defense closed their case. This prosecution
failed to do.” (Emphasis supplied).
In the light of the
foregoing settled position of the law on the purpose of re-examination, it is
submitted that, trial Courts have a solemn legal duty to allow counsel
litigating before them, to re-examine their witnesses, whenever they so
indicate to the court; and not to stifle/truncate this fundamental right of
counsel, by retorting with the cliché: “there
is no ambiguity”, as doing so would amount to denial of justice to a
deserving party, contrary to the primary function of the Courts, which is, to discharge
justice to all who appear before it.
The dictum of HELEN
MOPONKEJI OGUNWUMIJU, JCA (as he then was) in the case of Salami V. Ajadi (2007) LPELR-8622 (CA) is instructive here. In that
case, his Lordship, after referring to the relevant provision of the Evidence
Act on the purpose of re-examination, observed
and held thus:-
“…. In this case, the Appellant’s counsel gave an
explanation to the learned trial judge to indicate the area he wanted the
witness to elaborate in “the explanation of matters referred to in cross examination”.
What the Evidence Act clearly
anticipated in my humble view is a situation where an explanation or
elaboration of a particular fact which the
counsel feels should be better explained is allowed to be explained to the
court by the witness. In the circumstances of this case, what harm could it
have done if the witness explained the difference between compound and title
for the Judge’s better understanding….. One
heartily wishes that trial Judges do not complicate simple trial procedure. It
is clear that the Evidence Act is not a rigid legislation and that what it
intends to achieve is the ends of Justice which can only be attained by the
adjudicator having a clear picture of the case of both parties. Courts of trial
must not lose sight of that fact…” (Emphasis supplied)
CONCLUSION:
From the foregoing exposé,
it is now clear, beyond doubt, that the purpose of re-examination is not
narrowed to clarifying or explaining “ambiguities”; rather, the concept of
re-examination is elastic / flexible in application, and can be properly
employed to explain, clarify and resolve all matters arising from cross-examination,
including contradictions, inconsistencies, ambiguities etc. Indeed, all
actors/players in the temple of justice must realize, as rightly held in the
case of Oladeji v. Inspector General of
Police & Anor (2018) LPELR-45141 (CA) that:
“Litigation is not a game of chess where players
outsmart themselves by dexterity of purpose and traps. On the contrary,
litigation is a contest by judicial process where the parties place on the
table of justice their different positions clearly, plainly and without tricks.”
In line with the
doctrine of judicial precedent and stare
decisis, trial Courts are respectfully urged to jettison the narrow and
restricted idea/view that re-examination
is limited to clarifying ambiguities; and accord / treat the concept of
re-examination with the elasticity that it deserves, by readily allowing and afford
counsel appearing before them the opportunity of restoring credibility to the testimony
of their witnesses, if possible, through the instrumentality of re-examination,
whenever the need for same is indicated to the courts by counsel appearing
before it, in line with the foregoing judicial authorities on the subject
matter under consideration. This, if done, will enhance a smooth flow in the
stream of justice to all who appear before the sacred temple of justice in
quest for justice.
Authored by:
TEMEDIE, PETER-GREAT
ESQ.
Managing Partner
TEMEDIE & CO
(Golden Rule
Chambers)
Mercy Plaza, Yenagoa.
(08037645637)