The Appellants had made heavy weather of the fact that the trial Judge was wrong to have held that the Appellants cannot cross-examine the 2nd Respondent on his previous statement on oath which had been withdrawn and struck out. The Appellant relied on statutory and judicial authorities in support of his argument on this point. Counsel to the Appellant opined that the witness statement on oath that was struck out still remains a previous statement in the tone of Section 231 and 232 of the Evidence Act and the provisions contained therein should apply in cross examining the 2nd Respondent. In this case, the learned trial Judge stated as follows on page 345 of the record: "I have listened to the arguments of both counsel on this stubborn and thorny issue and I am of the candid view that for a witness to be asked questions in respect of previous statements he had made for the purposes of contradicting his and/or impeaching his credit, the witness must categorically agree that he still vouches as to the truth of the said statement as a basis for accepting them as part of the evidence. In the instant case, since the written sworn statement in question have been withdrawn and struck out, they no longer form part of the proceedings in this case and it will be out of reason to allow the counsel for the defence to contradict him on their contents. I still stand on the earlier ruling of this Court and say that the question put to the PW1 on this written sworn statement is not proper and the said question is not allowed." I think we need to identify some precise issues here and the opinion of the Superior Courts. The first in my view would be the status of a witness statement on oath. The second is the status of the processes that have been struck out in the course of a proceeding. It is the answer to the above questions relative to the issue in controversy that would throw light on this case. Let me emphasize here that there is no contention between the parties as to the fact that the statement had been withdrawn and subsequently struck out by the trial Court. When the 2nd Respondent as PW1 testified in Court before the trial Court on 20/3/17 as PW1, he applied through Respondents' to withdraw his previous written statements on oath sworn to on 18/3/2015, 29/6/2016 and 27/9/2016 respectively. The learned trial Judge granted the application for the previous statements to be withdrawn and struck out. The 2nd Respondent who was PW1 at trial then adopted his latest witness statement made on oath on 15/11/16 which was described as "Resworn statement on oath of Mr. Nicholas Ogbonna Onele." The witness was then subjected to cross examination and it was during the cross examination that Appellants' counsel put to him that his current evidence was contrary to the previous evidence on oath and sought to discredit the Witness on that point. Let me humbly try to explain what a Witness Statement On Oath is and what it is not. A witness statement on oath has been defined as the testimony of a witness, reduced into writing, usually on paper. The evidence in the statement on oath is what supports the pleadings. It is usually sworn to before a commissioner for oaths. It is apposite here to state that witness statement on oath was introduced to replace oral evidence-in-chief thus under the new regime, instead of the witness giving viva voce evidence in chief after being led by counsel in Court, that evidence is instead reduced into writing and sworn to before the commissioner for oaths. This testimony in written form is what is referred to as the "Witness Statement on Oath". I will like to set out the provisions of Section 231 and 232 of the Evidence Act 2011 which forms the major basis of this Appeal. Sections 231 and 232 of the Evidence Act state thus: "231. If a witness upon cross-examination as to a former statement made by him relative to the subject-matter of the trial and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it, but before such proof can be given the circumstances of 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. 232. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is crossexamined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him; Provided always that it shall be competent for the Court at any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purposes of the trial, as it deems fit." It is settled law that this provision generally applies to statements made in previous proceedings, and to extra-judicial statements and as such it means that a witness can be cross-examined on his statements in previous proceedings if the required procedure of law is followed. See MADUMERE & ORS v. OKAFOR & ORS (1996) 4 NWLR Pt. 445 Pg. 637 at 649; LAYONU & ORS v. THE STATE (1967) 1 ALL NLR 198; LOCKNAN & ORS v. THE STATE (1972) ALL NLR 498; ALAKIJA v. ABDULAI (1998) 6 NWLR (PT. 552), L.S.D.P.C v. ADOLD/STAMM INTER LTD (1994) 7 NWLR (PT. 358) 545. It is important to note that the condition for using the statement is that it must be relevant to the proceeding. In MADUMERE v. OKAFOR cited by the Appellants' counsel, the Court noted that the essential requirement of Section 199 now Section 232 of the Evidence Act, where a party intends to impeach the credit of a witness by showing that what the witness has said in the present proceeding contradicts what he said in the previous proceeding, his attention must be drawn to those parts of the evidence which are to be used for that purpose. The Supreme Court in EGBUCHULEM MADUMERE & ORS. v. OKAFOR & ORS(1996) LPELR-1810 held as follows; "A previous inconsistent statement can be put to a witness in cross-examination for the purpose of testing his credibility. The statement is not admissible for the purpose of proving the truth of its contents. The fact that the statement was made and is inconsistent with the witnesses testimony in the present proceeding is significant. After a careful consideration of the notes made by the learned trial judge before Exhibit "G" was admitted in evidence, I am satisfied that the attention of the 3rd Plaintiff was specifically drawn to those parts of his evidence which were to be used for the purpose of contradicting him and he was reminded of what he said on that occasion. Those portions of his evidence were even read out to him. In my view, the essential requirements of Section 199 are that where a party intends to impeach the credit of a witness by showing that what that witness has said in the present proceeding contradicts his evidence in the previous proceedings, his attention must specifically be drawn to those parts of his evidence which are to be used for the purpose of contradicting him, he must be reminded of what he said on that previous occasion and he must also be given an opportunity of making an explanation. All these were complied with in the present proceedings and I agree with the Court below that there is no provision in the said section of the law as to the exact time the statement should be tendered. However, the statement should be put in evidence by the defendants as part of their case either immediately or in the ordinary cause of the case. See Maurice Cameron v. Anderson (1930) 21 CR. AP. R 178 at 181" Section 231 is about any previous statement in writing while Section 232 is about a statement made in previous proceeding. There is no doubt that the underlying factor relevant to be able to cross-examine the 2nd Respondent on his statements is that the content of the statement are relevant to the proceedings. Even though Sections 231 and 232 of the Evidence Act relates to cross-examination as to previous statements in writing, but same is not limited to only previous statements forming part of the proceedings in the case as it covers evidence of a witness taken in earlier proceedings once the purpose is for discrediting such a witness in cross-examination. NJOKU V. DIKIBO (1998) 1 NWLR (PT. 534) 496, ALAKIJA V. ABDULAHI (1998) 6 NWLR (PT. 552), L.S.D.P.C V. ADOLD/STAMM INTER LTD (1994) 7 NWLR (PT. 358) 545. The provision of Sections 231 and 232 of the Evidence Act covers the case of a witness who has made a statement in Court inconsistent with an earlier extra judicial statement made by him. Appellants' Counsel argued that a witness can be cross examined as to any statement made by him or reduced into writing by someone else for him or on his behalf for example a deposition taken by a magistrate from a witness during investigation or statement made to the police and taken down in writing by the latter, provided that such statements are relevant to the matters in question in the suit or proceedings. The Supreme Court authority of AGBAHOMOVO v. EDUYEGBE (1999) 3 NWLR Pt. 594 Pg.170 at Pg. 172 is almost on all fours with the facts of this case. The amended survey plan which had been filed was the subject of controversy. In that case, two suits were consolidated. In the course of the trial, the Respondents' counsel sought to cross examine the Appellants' witnesses on a previous survey plan which showed the boundarymen as the same as those shown on the Respondents plan. An objection was raised thereto by the Appellants' counsel which objection was sustained by the trial Court. The Court held that the previous survey plans were not admissible in evidence at all since they had been amended by the Appellants. The trial Court also went further to expunge evidence already given by the said surveyor in relation to the said survey plans. Onu JSC, delivering the Lead on page 183 of the Judgment held as follows:"As pleaded in paragraph 23 of the Respondent's amended statement of defence, the Respondents manifested an intention to tender the plans only to discredit the evidence of the Appellants. This can legitimately be done by virtue of Section 198 of the Evidence Act LFN 1990 Cap 112. The Respondents did not seek to tender the previous three plans to define the issue to be tried but rather to highlight the inconsistencies in the Appellants case and also to impugn their veracity." Iguh JSC held at page 186 of the Judgment as follows:"The main issue that arises for consideration in this appeal is the wrongful exclusion of relevant evidence in a proceeding by a trial Court. The complaint is that the learned trial Judge denied the Respondents the opportunity of presenting their case fully before the Court by refusing to admit in evidence three survey plans Nos. LSU 5032 of the 10th January 1978, LSU 6646 of the 7th February, 1979 and LSU 7948 of 7th February, 1980, filled by the Appellants in the suit but were subsequently amended by the order of Court. It was the view of the trial Court that the said plans having been duly amended by the leave of Court no more existed and were no longer material before the Court. The contention of the Respondents is that if those three survey plans had been admitted in evidence, they would have thoroughly discredited the evidence of the Appellants on the important issue relating to boundary men of the land in dispute. It was submitted that the Respondents were seriously prejudiced by the ruling of the learned trial Judge which not only rejected the plans in evidence but expunged from the records the evidence already elicited from the 3rd Appellant under cross-examination in respect of the said plans and also disallowed further questions relating to those plans during the trial." My Lord said further on Page 186-187:"There can be no doubt that once pleadings are duly amended by the order of Court, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried before the Court. See Warner v. Sampson (1959) 1 Q.B. 297. This, however, is as far as this proposition of law goes. It does not and has not laid down any such principle that an original pleading which has been duly amended by an order of Court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law established is that such original pleading which has been duly amended is no longer material before the Court in the sense that it no longer determines or defines the life issues to be tried before the Court. It is however totally immaterial in the determination of the issues to be tried in the proceedings. It thus cannot be considered as the basis of one's case in any action. Nor may a Court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the suit. The issues to be tried will depend on the state of the final or amended pleadings. See Salami v. Oke (1987) 4 NWLR Pt. 63 Pg. 1 at Pg. 9 and 12 and Agbaisi and Ors v. Ebikorefe and others (1997) 4 NWLR Pt. 502 Pg. 630 at Pg. 647-649." My Lord concluded on page188 "It seems to me that whilst the issues to be tried in a case will depend entirely on the state of the final pleadings, a party may nonetheless be cross-examined on any relevant issue with a view to impugning his evidence at the trial. I think the learned trial Judge was in error when, in effect, he ruled that the three plans in issue were no longer before the Court and could not therefore be used for whatever purpose. In my view, when the trial Court restrained the Respondents from cross-examining the 3rd Appellant or giving evidence relating to the three plans and, indeed, proceeded to expunge the evidence already elicited from the records in respect of those plans, it denied the respondent a fair hearing. In my opinion, the Court of appeal was quite right by allowing the respondents appeal on that ground and in setting aside the judgment and orders of the trial Court." The jurisprudence behind the above opinion in my humble view is that a party should not be allowed to get away with changing his story as the case proceeds. A process that is struck out has no more teeth and cannot be used by the party or adverse party as a general rule. However, it is still part of the process in the file. It cannot be wished away. The Court and the party who filed the struck out or amended process cannot use it to urge the case of the party; however the adverse party can use it to discredit the witness or the evidence of the party who filed it. It would amount to lack of fair hearing in our adversarial system of jurisprudence if the contradictory evidence already stated in writing which has been struck out cannot be allowed to be used to cross examine the witness who gave contradictory evidence. A Counsel or any other person may reduce a person's testimony in writing as his or her deposition, once the deposition is adopted at the hearing that constitutes the evidence of the witness. The rules of Court require the witness Statement On Oath be sworn to before a Commissioner for Oaths. So the content of the evidence on oath is one for which a person who swears falsely can be charged with perjury. Section 232 talks about a mere statement in writing (not necessarily sworn to) being used to test the veracity of a witness, how much more a sworn deposition which carries more weight than an ordinary statement in writing. To answer my initial questions, the witness statement on oath is in essence an affidavit which has been sworn to by the deponent. When it is frontloaded by a party as facts in proof of the pleading it becomes irrelevant when the pleading is amended whether the pleading were officially struck out or not. However the same irrelevant process in proof of a party's case can be used to contradict the said party by the adverse party. See also the decision of Agim J.C.A in JOHN AJIBO v. THE STATE (2013) LPELR-21359 (CA). So the process struck out cannot be useless for all purposes. This issue must not be confused with the issue of an irregular affidavit or an irregular witness statement. That is another matter entirely. This Court had clarified this distinction in KALU IGU UDUMA V. PRINCE ARUA ARUNSI & 14 ORS (2010) LPELR-9133(CA) as follows:"I am minded to go a step further and to make a distinction between affidavit evidence in procedure begun by originating summons as against statement of witnesses on oath at an election proceeding or proceedings begun by writ and to say that in respect of the latter scenario, where the written statement is to be adopted again on oath by the maker before his cross-examination on it, whatever defect in the original oath in respect of the witness statement has been cured by the second oath made in Court before the Judex prior to the adoption of the witness statement by the maker and his subsequent cross-examination. See the case of UDEAGHA v. OMEGARA CA/PH/EPT/173/2008 unreported delivered on 30th March, 2010." The sole issue for determination is resolved in favour of the Appellant. The ruling of the learned trial Judge given on 20/3/17 in Suit No. HOZ/1/15 is set aside. The Appellant is allowed to cross-examine and tender the documents as requested.

"Per OGUNWUMIJU, J.C.A. in THE PRESBYTERIAN JOINT HOSPITAL UBURU & ORS v. ONELE & ANOR CITATION: (2018) LPELR-45058(CA)