TENDERING OF A DOCUMENT UNDER CROSS-EXAMINATION

The admissibility of a document under cross-examination is completely permissible and unimpeachable if the purpose is to tender a previous statement made in writing by a party to the proceeding or witness in order to contradict or discredit his evidence on oath before the Court. This was the decision of the Supreme Court in the case of Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 453) 148 at 169, Para. H, per Iguh:

“…..the admission in evidence, under cross-examination, of Exhibit A, A1 by the trial court was completely permissible and unimpeachable as a statement previously made in writing by the plaintiff to contradict or discredit his evidence on oath before the court”

THE RELEVANT PROVISIONS OF THE EVIDENCE ACT, 2011:

The relevant provisions of the Evidence Act are Sections 199 (now deleted), 209 (now Section 232) and 210 (c) (now Section 233(c))

The deleted Section 199 which was probably deleted because it was identical with S.209 of the old Evidence Act provided that:

“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in questions in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Section 209 (now Section 232 under 2011 Evidence Act) provides:

A witness may be cross-examined as to previous statement made by him in writing relative to the subject-matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so 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 purposes of the trial, as it shall think fit.”

Section 210 (now Section 233 under 2011 Evidence Act) provides:

The credit of witness may be impeached in the following ways by any party other than the party calling him or with the consent of the court by the party who calls him-

(a)            …………………………………………………….

(b)            …………………………………………………….

(c)            By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”(All Italics supplied for emphasis).

In the said case of Ipinlaiye II vs. Olukotun (1996) 6 NWLR (Pt. 453) 148, Iguh, JSC who delivered the leading judgment set out the facts of the case at page 162 to wit:

“In the Ekiti Judicial Division of the High Court of Justice, Ondo State, the plaintiff, who is now appellant, for himself and on behalf of the entire Igasi community instituted an action against the defendant, now respondent, for himself and on behalf of the entire Ahan community, claiming as follows-

"(a) Declaration of title to a piece or parcel of land situate, lying and being at ULOGO FARMLAND in IGASI-AKOKO Division.

(b) N600.00 general damages for trespass committed by the defendants and their agents on the said piece of land.

(c) An injunction restraining the defendants and/or their agents from committing further acts of trespass on the said piece of land." 

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

 At the subsequent trial, both parties testified on their own behalf and called witnesses. The learned trial Judge, Ogundare, J. as he then was, at the conclusion of the addresses of learned counsel for the parties inspected the land in dispute in the presence of the parties and their counsel. 

The contest over the land in dispute is between the two communities of Igasi in Akoko Division and Ahan in Omuo-Ekiti Division, both of Ondo State. Both parties, for their root of title, relied on traditional evidence and claimed to be the original owners of the land in dispute from time immemorial. Each side claimed that his ancestor was the first person to settle on the land and that they had since been exercising various acts of ownership and possession thereon without let or hindrance from any quarters. Both parties also claimed to have granted parts of the land in dispute to the other party on payment of rent. These claims were denied severally by each of the parties. Of significance, however, is the letter, Exhibit A, which admittedly was written by the plaintiff to the defendant. Its contents, inter alia, are acknowledgement by the plaintiff that members of his community were farming on the land in dispute which belonged to the defendant. This letter, dated the 10th September, 1972, was written in Yoruba language and was tendered with its English translation, without objection, as Exhibit A, A1. It was tendered during the cross-examination of the plaintiff for the purpose of discrediting his entire testimony.”

At the conclusion of hearing, the learned trial Judge after an exhaustive review of the evidence on the 7th day of July, 1978 found for the defendant and dismissed the plaintiff's claims in their entirety.

Dissatisfied with this decision of the trial court, the plaintiff lodged an appeal against the same to the Court of Appeal, Benin Division. The said Court of Appeal, in a unanimous judgment on the 4th day of July, 1988 dismissed the appeal and affirmed the decision of the trial court.

Aggrieved by this decision of the Court of Appeal, the plaintiff has further appealed to this court.” 

The learned Justice of the Supreme Court in making his pronouncement at page 169, paras. C-H, observed as follows:

“Still on the admissibility of Exhibit A, A1, attention may further be drawn to sections 199, 209 and 210 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 which provide as follows-

“199. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in questions in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

“209. A witness may be cross-examined as to previous statement made by him in writing relative to the subject-matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so 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 purposes of the trial, as it shall think fit.”

“210. The credit of witness may be impeached in the following ways by any party other than the party calling him or with the consent of the court by the party who calls him-

(d)           …………………………………………………….

(e)            …………………………………………………….

(f)             By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”(All Italics supplied for emphasis).

A close study of the above sections of the Evidence Act clearly discloses that the admission in evidence, under cross-examination, of Exhibit A, A1 by the trial court was completely permissible and unimpeachable as a statement previously made in writing by the plaintiff to contradict or discredit his evidence on oath before the court. In my view, it is beyond question that in so far as the document was to discredit the evidence of the appellant that he did not write a letter to the Alahan in 1972 and to impeach his claim of ownership of the land in dispute, it was clearly admissible in evidence and was properly so admitted.”   

    RELEVANT PRINCIPLES:

·       A Counsel cannot just tender a document and submit that it is aimed at contradicting a witness who is testifying on Oath. Contradiction with the use of such document can only be done through cross-examination. Ekang vs. State (2001) FWLR (Pt.68) 1123 (CA) 71 NWLR (Pt.723) 1 at 25, C-G.

·  A document cannot be admitted in evidence for the purpose of contradicting a witness – by merely producing the document or making reference to it by Counsel without any cross-examination of the witness as to credit. Edoho vs. State (2004) 5 NWLR (Pt865) 17 (CA).

·       Although, it is permissible to tender a document solely to contradict the contents of another document in evidence, it is not enough for Counsel tendering it to just tender the document without making the witness through whom it has been tendered to pin – point the area of conflict to the Court. Ikenna vs. Bosah (1997) 3 NWLR (Pt.494) 439 (CA).

·        PROPER/NECESSARY FOUNDATION

The Evidence Act gives an option to the cross-examiner. He may cross-examine the witness on the writing and if he is satisfied with the answer given by the witness or if he does not intend to pursue the matter further, he is not required to show the writing to the witness. But if the cross-examiner intends to contradict the witness by the writing, then:

a.  He must show the writing to the witness and;

b.   Call his attention to those parts of the writings which are to be used for the purpose of contradicting the witness.

It is only after these conditions have been complied with that the writing can be admitted in evidence. Ajide vs. Kelani (1985) 3 NWLR (Pt.12) 248 at 260 – 261, paras. H-A.

By Akintunde Esan,Solicitor,Advocate and Chartered Mediator.
He is the senior partner at Ase Olodumare Chambers,a Lagos based dispute resolution law firm.