A Critical Review of the Evidential Worth of a Hostile Witness

CONTRIBUTED BY VICTOR ATANG

INTRODUCTION

Under the Nigerian Legal System as well as other Common Law Jurisdictions, a party has the volition to prosecute his case in the way and manner he likes although, it must be in accordance with the relevant laws, Rules of Courts and Rules of Professional Conduct^[1]. This often time involves among others, calling witnesses at Court trials to prove the facts alleged against the adversary party. Thus, a party to a case is deemed to vouch for the credibility of any witness called upon to prove the case. However, a witness who has earlier during a pre-trial interview given his account of the events leading to the action in favour of the party who intends to him call as a witness, may during the trial decide to give evidence at variance with his earlier deposition.

This article critically examines, through the relevant legal framework and judicial pronouncement, the issue of a hostile witness and the probative value of such evidence adduced by such a witness, alongside recommendations.

THE CONTEXT OF A HOSTILE WITNESS IN NIGERIA

In the case of ESAN V STATE^[2], the Supreme Court defined a hostile witness to mean, one who bears a hostile animus to the party calling him and who does not give his evidence fairly with a desire to tell the truth. Thus, a hostile witness is a witness who is not just simply unreasonable but actively becomes hostile to the party that called him and also fails to give evidence along his pre-trial account.

Under the Evidence Act^[3], a party is forbidden from impeaching the evidence of his witness, instead, it sets out the manner of dealing with hostile witnesses and provides the following:

“the party producing a witness shall not be 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 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”.

However, the mere fact that a witness gives evidence which is not favourable to the party that calls him does not make him a hostile witness. What makes him a hostile witness is the unwillingness of the witness to either testify or to testify honestly. This in turn makes him liable to be declared a hostile one and where the Court declares a witness “hostile”, his evidence before the Court whether given at the trial or previously given is disregarded in entirety^[4]. This is because a party calling a witness in a court case is deemed to have put him forward as a witness of truth to present to the court the party’s version of the evidence in the case. Such a party is bound by the testimony of his witness and is not allowed to discredit his witness by evidence of a bad character.^[5]

The Evidence Act further recognized that a party’s witness could somehow give evidence that falls short of the proof of what he has been called to prove. In some cases, the witness may even go on to prove that which is contrary to what he has been called to prove by the Counsel calling him. The failure to prove, on the part of the witness, could be unplanned or could be a result of the witness being mischievous, by showing the unwillingness to state the truth on behalf of the party that has called him.^[6]

IMPLICATIONS OF EVIDENCE GIVEN BY HOSTILE WITNESSES

In general Court proceedings where there is need for a witness to be called to testify, a party’s case is adjudicated on the basis of the evidence adduced through his witnesses and where the evidence adduced by such witnesses, in the discharge of the burden of proof of facts suffers from substantial contradiction, such party’s case is dealt a fatal blow^[7].

In criminal cases, where there is a substantial contradiction in the case of a party as a result of the evidence of a hostile witness, the implication is that the prosecution is deemed to have failed to discharge the burden of proof that rests on it to prove the case alleged against the accused person beyond reasonable doubt^[8]. In the case of IBEH V. STATE^[9], the Apex Court held that:

“In all prosecution cases, the evidence put in by the prosecution must be considered in its totality. The time-honoured practice of deciding on hostile witness must be borne in mind… without availing itself of this procedure the prosecution that dumbs all contradictory testimonies before the court cannot have the verdict of conviction”.

In civil cases, where the burden of proof is discharged by the balance of preponderance when a witness called by a party gives evidence that is contrary to the case of the party that called him, which results in a substantial contradiction in the totality of evidence called by that party, the adverse effect is that the case of the party putting forward the case is weakened in the discharge of the burden of proof. The adverse party is entitled to rely on such part of the contradictory evidence that is in his favour, as an admission against the interest of the party calling the witness^[10].

More so, it is pertinent to note that where a party’s case as presented by its witnesses reveals a significant contradiction, it is in that party’s best interest to have any of the witnesses explain the contradiction in order to avoid dire consequences that could arise from the contradiction for the party’s case as a whole. As an alternative, a party can have the witness that gave such contradictory testimony declared as a hostile witness during the course of his direct evidence.

HOW A HOSTILE WITNESS CAN BE DISCREDITED

A witness is not declared a hostile one by the party calling him, it is the Court, upon application by the party’s counsel, after satisfying itself that the witness bears a hostile animus, which declares the witness a hostile witness^[11]. In forming its opinion as to whether a witness is a hostile one, the Court usually considers the following factors:

1. The manner in which the witness testifies
2. The demeanor, attitude and disposition towards answering questions
3. Nature of the evidence given
4. Nature of the evidence he refuses or is unwilling to give^[12]

If the Court believes that the witness is hostile, the party calling him may discredit him by otherwise cross-examining him, including posing questions to him to demonstrate inconsistencies between his testimony and the previous witness deposition on oath made by him^[13]. However, in practice, it is prudent that the Counsel offers the witness the opportunity to refresh his memory from the previous inconsistent statement if it was reduced into writing in the witness statement on oath before a resort is made to declare the witness a hostile witness.

CONCLUSION

This article has extensively examined the concept of hostile witness and the approach of the law in addressing the issue. It has been argued that under the Nigerian legal system where the adversarial system of adjudication is practised, a party has the volition to conduct his case albeit subject to relevant laws and rules of courts. The consequence of the forgoing is that a party who calls a witness, vouches for the credibility and integrity of his testimony. It has been further established that where such a witness becomes hostile to the party calling him by totally departing from his earlier deposition, then the party may refresh the witness’s memory or apply to the court to have the witness declared as a hostile witness and thus attach no probative value to his evidence.

1. Akintola v. Solana (1986) 2 NWLR (PT 24) 598 at 608 ↑
2. (1976) NSCC 673 ↑
3. Section 230 of the Evidence Act 2011 ↑
4. Stanley-Idum M. M. & Agada J. A.; Civil Litigation in Nigeria ( 3^rd ed. Renaissance Law Publishers, 2020) P. 586 ↑
5. Section 230, Evidence Act ↑
6. Cross & Tapper: Evidence (11^th ed. Oxford University Press, 2007) p. 330 ↑
7. See Yusuf v Obasanjo (1991) 2 NWLR 509 ↑
8. Ibeh v. State (1997) 1 NWLR (PT 484) 632 ↑
9. Supra ↑
10. Onisaodu v. Elebiju (2006) 2 All N.L.R. 274 ↑
11. See Section 230, Evidence Act ↑
12. Ilouno v. Chiekwe (1991) 2 NWLR (173) 316 ↑
13. Yusuf v Obasanjo (Supra)s ↑