The context of a Hostile Witness in Nigeria
In the case of ESAN V STATE, 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, 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. 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.
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.