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EVIDENCE ELICITED UNDER CROSS-EXAMINATION - TREATMENT OF EVIDENCE ELICITED UNDER CROSS-EXAMINATION

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EVIDENCE ELICITED UNDER CROSS-EXAMINATION - TREATMENT OF EVIDENCE ELICITED UNDER CROSS-EXAMINATION

“His Lordship Onnoghen, JSC (as he then was) provided an illuminating explanation on the treatment of evidence elicited under cross-examination in the case of: Akomolafe Vs Guardian Press Ltd. (2010) 3 NWLR (Pt.1181) 338 @ 351 F-H, as follows:

 

On the Issue as to whether both parties called evidence in support of their pleadings, as held by the lower Court, it is settled law that evidence elicited from a party or his witness(es) under cross examination, which goes to support the case of the party cross-examining, constitute evidence in support of the case or defence of that party. If at the end of the day the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case, you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence, not evidence, as the evidence elicited from his opponent under cross examination which are in support of his case or defence constitute his evidence in the case.There is however a catch to this principle. The exception is that evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties. I have considered the authority of Gaji Vs Paye (supra) relied upon by learned senior counsel for the respondent and which learned senior counsel for the appellant sought to distinguish on the basis that evidence elicited under cross-examination is only relevant if it arises from issues joined between the parties. In other words, that it is only where both parties have filed pleadings that issues can be joined and the party cross-examining may rely on evidence elicited under cross-examination. With due respect to learned senior counsel, the submission does not reflect the decision of this Court in that case. His Lordship, Niki Tobi, JSC held at page 611 A-B of the report:

 

Evidence procured from cross examination is as valid and authentic as evidence procured from examination-in-chief. Both have the potency of relevancy and relevancy is the heart of admission in the law of Evidence. Where evidence is relevant, it is admissible and admitted whether it is procured from examination-in-chief or cross-examination."(Underlining mine)

 

For this reason, lawyers are often advised to be wary of questions they put to witnesses under cross-examination, particularly when they do not know the answer the witness would give. This is because the response to a question put to a witness under cross-examination may turn out to sound the death knell for his opponent's case. Again, in Adeosun Vs Governor, Ekiti State (2012) 4 NWLR (Pt. 1289) 581 @ 602 A-B, it was held per Onnoghen, JSC (as he then was): "it is settled law that evidence elicited from the cross-examination of a defence witness, which is in line with the facts pleaded by the plaintiff, forms part of the evidence produced by the plaintiff in support of facts pleaded in the Statement of Claim and can be relied upon in proof of the facts in dispute between the parties." (Underlining mine).”

 

-         PER K. M. O. KEKERE-EKUN, J.S.C. IN

MTN NIGERIA COMMUNICATION LIMITED v. CORPORATE COMMUNICATION INVESTMENT LIMITED

APPEAL NO: SC.674/2014

LEGALPEDIA ELECTRONIC CITATION: LER[2019]SC.674/2014



   
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