INTRODUCTION TO EXAMINATION IN CHIEF
Civil trial start properly with parties calling witnesses to proof facts in issue before the court. This is the stage of civil suit regarded as “hearing”. During hearing, there are three sub-stages namely: Examination in Chief, Cross-examination and Re-Examination.
Examination in Chief as noted by lawteacher is simply, the calling of witnesses to give evidence in favour of the party calling them. See Section 214 of the Evidence Act 2011 which defined Examination in Chief to mean:
“the examination of a witness by the party who called him”
Usually, the plaintiff is always the first to open it’s case by calling witnesses to give evidence. At the end of the examination in chief, the witness is cross-examined by the Defendant’s counsel and further re-examined by the party that called the witness where necessary.
IN THE ERA OF FRONTLOADING.
Gone are the days when witnesses appeared before court to tell their stories(to give evidence). In the present era and practice, evidence of parties are written and it accompanies the originating process filed in court. The witness then signs the written deposition during filing of processes before commissioner for Oath. This evidence of witness is called “Statement on Oath of witnesses”.
In court and in civil proceedings, the witness only come to Court to adopt the statement on Oath as his evidence, tender the necessary documents and is thereafter cross-examined by the opposite party’s counsel.
HOW TO LEAD WITNESS IN EXAMINATION IN CHIEF.
(first, the witness: PW1 steps into the witness box and is administered on oath by the registrar or clerk of court, then the party calling the witness leads the witness in chief in the following sequence)
Q. Witness,tell the court your name?
A. My name is Mr.Oke peter.
Q. Witness where do you live?
A. I live at no. 35 Ogbaga Road Abakaliki.
Q. what do you do for a living?
A. I am a farmer.
Q. Recall that on the first day of April 2022, you made a statement on Oath before this court?
Q. On the 1st day of May 2022, you also made additional statement on Oath before this court?
Q. If you see this statement on oath and additional statement on Oath, will you recognize it?.
Q. Take a look at this document, are these the Statements you made before this court?
Q. What do you want the court to do with this statement on oath and additional Statement on oath?
A. I want the court to use it as my evidence in this suit.
(At this point, the witness has adopted his or her statement on oath, yet, where there are documents to be tendered
, counsel will proceed)
Q. In paragraph 3 of your statement on oath, you made reference to power of attorney
Q. if you see the said Power of Attorney, will you recognize it?
Q.Take a look, is that the said Power of Attorney?
Counsel to court: My Lord, I humbly apply to tender same in evidence.
The document is passed to the Opposite counsel who inspect same before raising objection to it’s admissibility if any. Where there is objection, the party tendering it, joins issues with the counsel opposing the admissibility of the document tendered, by arguing why the document should be admitted. The counsel who opposed the document is entitled to reply on point of law before court rules on the application to tender the document in evidence. The court can reject or admit the document in evidence as exhibit. After that, the counsel continue to tender the subsequent documents in the same procedure. After tendering the whole document in it’s possession, the counsel will inform the court:
My Lord, that will be all in evidence in Chief for PW1.
DOCUMENTS THAT MAY NOT BE TENDERD THROUGH A WITNESS IN EXAMINATION IN CHIEF.
Certified True copies of document need not be tendered through a witness. It can be tendered from the Bar by the lawyer seeking to tender same. To do that, counsel informs the court:
My Lord, we made reference to CTC of court judgement in paragraph 3(or in our pleadings)of the statement on oath of this witness. I humbly apply to tender same from the Bar
RULES OF EXAMINATION IN CHIEF SUMMARISED.
The basic rule of examination in Chief is that leading questions are not allowed in examination in chief; save with leave of court.See section 221(2) of the Evidence Act 2011. Leading questions are also allowed in introductory matters and matters that are not in contention.
What is leading question?
Leading questions are questions that give the witness opportunity to say “yes” or “no” Example:
Q.You were there when Mr. A entered into the land in dispute?
For this question, what do you expect the witness to answer? Definitely “Yes”
But leading questions are allowed in Introductory matters. Introductory matters are the first 3 questions bordering on name, address and occupation. In other words, a counsel may ask:
Q. Witness,Your name is Emmanuel Oke?
Q. You live at no: 35 Ogbaga Road Abakaliki?
Q. You are a farmer?
All these questions are allowed though, they elicit yes answer.
In leading questions, the lawyer tells the story for the witness to confirm.This is why it is forebidden in law.
However, where the fact has been made know to court before, leading questions can be asked because the fact is no longer in issue. Example:
Q. Witness, you earlier told this court you were there when Mr A entered the land, what happened?
See Section 221(2) and (3) of the Evidence Act 2011
In this question, the beginning of the question was as if, it is leading,but the end made the question legal.
OPEN QUESTIONS ARE ADVISABLE IN EXAMINATION IN CHIEF.
Open question allow the witness to tell the story. This is only necessary in inferior courts or criminal trials where evidence are led before the court orally. But in Civil Proceedings in High Courts, as we said earlier,the statement on oath is just adopted and nothing more. Example of Open question.
Q. Tell the Court what happened that day?
AFTER EXAMINATION IN CHIEF, WHAT NEXT?
After a witness has testified, the court calls for Cross-examination if the suit is defended but where the suit is not defended, the witness will be discharged. To discharge a witness, the witness’s counsel simply apply to court:
Counsel: I apply that the witness be discharged.