Introduction

There are three species of examination of witness in conduct of judicial proceedings in courts. They are as follows:

  1. Examination in Chief
  2. Cross examination, and
  3. Re- examination.

A witness is first examined in chief; then cross examined and finally may be re-examined. What determines the specie of the examination at any given time depends (subject to the provision of section 230 of Evidence Act) on who is actually examining the witness, when and for what purpose. Thus where a witness is being examined by a party who called him, such examination is called examination in chief. Where a witness is being examined by a party other than the party that called him, such examination is called cross examination. And where a witness is examined by the party who called him after the witness has been cross examined by the other party, such examination is called re-examination *.

It is this final brand of examination that is the subject of this discourse. This is because this specie of examination though rarely used has generated more controversy in our courts; and most disappointedly the courts seem helpless in such situation. The result of which is that a party is usually shut out of a law given opportunity to present his whole case thus occasioning grievous miscarriage of justice.

The law governing the re-examination of witness is basically the Evidence Act 2011. Other laws governing re-examination of witness are distilled from judicial decisions of various superior courts of law in Nigeria.

These two sources established various principles which govern the re-examination of witnesses; some of these principles are expressly set out in the Evidence Act while some are emanates of judicial decisions on this point.

These principles are as follows:

  1. By section 215(3) of the Evidence Act, the re-examination of witness shall be directed to the explanation of matters referred to in cross examination. The operative word here is “explanation of matters referred to in cross examination”. What this means is that where a witness in the course of his evidence under cross examination refers to any matter; such a matter becomes a proper subject for explanation by way of re- examination. The law is silent on the extent of reference, but it suffices that an express or implied reference no matter how minute is enough.
  1. Another principle governing the re-examination of witness is that (subject to recognized exceptions) leading questions are not permitted. Leading questions are those questions which suggest the answers the questioner wants; here the questioner frames the answers he wants to receive from the witness in form of a question, and the witness merely confirms the answer by saying yes or no. The recognized exceptions to leading questions are as follows:
  • Questions in respect of matters that are introductory
  • Questions in respect of matters that are of common knowledge
  • Questions in respect of matters that are sufficiently proved
  • Where the question though leading is not objected to
  • Where the question though leading is allowed by the court*
  1. Another principle of re-examination is that its essence is to clear ambiguity (though not restricted to it) arising from cross examination. Thus its object as regards clearing ambiguity is merely to give the witness the opportunity of clearing seeming inconsistencies arising from his cross examination. See FATOBA V OGUNDAHUNSI (2003) 14 NWLR (PRT 840) 323.
  1. One other major principle of re-examination is that re-examination can be used to obviate unfavourable inference being drawn from questions, answers or matters arising during cross examination. It is to be noted that pursuant to section 221(4) of Evidence Act, leading questions may be asked during cross examination; and most often closed questions* are employed by counsel cross examining a witness, thus requiring of such a witness to unwillingly answer restrictively (mostly yes or no) thereby shutting out opportunities of providing a qualifying explanations. If such answers given under such circumstances are not properly explained; the court may draw unfavourable inferences from them. So where an answer given by a witness under cross examination could (as in the above circumstances) unless explained, supplemented and or qualified in a way desired by a party, leaves the court with an impression of fact or drawing of inferences, which impression or inference is capable of being construed in most unfavourable manner against the party; then re- examination is necessary to supply the explanation, supplement the answer and or qualify the statement. The above would be necessary whether or not there was ambiguity or even inconsistencies. See the case of REGINA V LAVERY (N0.2) 1979 20 SASR.323
  1. It is to be noted that one of the purposes or aim of cross examination                  provided in Section 223 of the Evidence Act is to shake the credibility of a witness by injuring his character, where the credibility of a witness is thus shaken, the party calling him may (if practicable) re-establish such a witness’s credibility through re-examination.
  1. Finally on this point, it is the principle of law that a party can further tell his story through re-examination. This is known as “introducing new issues”, although this may not be allowed except permitted by the court; but where same is allowed by the court, evidence elicited by such new issues intrinsically takes the nature examination in chief. Thus the cross examining party is further permitted to cross examine on the new issue raised under section 215(3) of the Evidence Act. However the law is silent on whether there is a further right of re-examination after this second cross examination on the new issue raised. It is my submission that there is a right of further re-examination in this circumstance; this is because if any of the purposes of cross examination is achieved by virtue of the second cross examination; then necessarily, a right of re- examination on those points becomes a matter of course unless waived by the party.
  1. It is a trite principle of law governing re-examination that the right to re-examined is optional. But this is only at the instance of the party who owns that right and not that of the court, therefore, a party who wishes to re-examine his witness cannot be deprived of the opportunity by the court notwithstanding the opinion of the court on the propriety or otherwise of the intended re-examination. See the case of POIICE V NWABUEZE & ORS (1963) 2 ALL NLR 119.

Stanley C. Chukwu, Esq. LL.B, BL
scchukwu@gmail.com

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