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TO CONTRADICT A WITNESS BY HIS PREVIOUS WRITING; MUST SHOW WITNESS THE WRITING

Dictum

Bello, JSC, in AJIDE v. KELANI (1985) 3 NWLR (pt.12) 248 at 200 – 261, (1985) 16 NSCC (pt.2) 1298 at 1309, stated the options thus – “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 or to prove the writing. But if the cross-examiner intends to contradict the witness by the writing, then he must show the writing to witness and call his attention to those part of the writing which are to be used for the purpose of contradicting the witness. It is only after this condition has been complied with that the writing can be admitted in evidence.”

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NOT CALLING VITAL WITNESSES VS NOT CALLING A PARTICULAR WITNESS

The first point that needs be emphasised is that the presumption under section 149(d) of the Evidence Act will only apply against whom it is sought that it should operate where that party has infact withheld the particular piece of evidence in issue and if he did not call any evidence on the point. It only applies when the party does not call any evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435. The section deals with the failure to call evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435. The section deals with the failure to call evidence and not the failure to call a particular witness as a party is not bound to call a particular witness if he thinks he can prove his case otherwise. See: Francis Odili v. The State (1977) 4 SC 1 at 8; Alonge v. inspector-General of Police (1959) SCNLR 516; (1959) 4 FSC 203 etc. Mere failure to produce the evidence in issue would not necessarily amount to withholding such evidence. See: Ganiyu Tewogbade v. Arasi Akande (1968) (Pt. 2) NMLR 404 at 408. So, in Francis Odili v. The State supra, learned defence counsel’s submission was that only one of the two Rev. Sisters robbed with violence was called to identify and to testify against the appellant and that the second Rev. Sister and the two night guards who were present during the robbery should have been called as witnesses particularly as the appellant’s defence was that of alibi. This court as already pointed out dismissed this contention as misconceived as the prosecution was not required to call a host of witnesses to prove a particular issue.

— Iguh, JSC. Oguonzee v State (1998) – SC.131/97

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IT IS WITNESS WHO IS TO EXPLAIN INCONSISTENCY, NOT COUNSEL

A line of decisions of this court, including Onubogu v. The State (1974) 9 SC.1 at p.20; Ateji v. The State (1976) 2 SC 79 at pp. 83 – 84; Boy Muka v. The State (1976) 9-10 SC 193 at p.205, has held that in such a situation there is a failure to prove the criminal allegation beyond reasonable doubt. The person to explain the inconsistency is a witness(es) called by the party in whose case there are inconsistencies or contradictions, and not the counsel from the Bar. Afterall, a bare statement from the Bar has no force of legal evidence. The law is settled that the courts do not accept argument of counsel as substitute for evidence.

— Eko, JSC. Anyanwu v. PDP (2020) 3 NWLR (Pt. 1710) 134

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EVIDENCE OF A SINGLE WITNESS CAN CONVICT

A man may be convicted on the evidence of a single witness. However such evidence must be credible and cogent. – Ogunwumiju JCA. Okeke v. State (2016)

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QUALITY OF TESTIMONY OF WITNESSES

The trial court does not come to a decision by the quantity of the witnesses but on the quality or probative value of the testimony of the witnesses. — O.O. Adekeye, JSC. Mini Lodge v. Ngei (2009) – SC.231/2006

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WHERE PROSECUTION WITNESS CONTRADICTS ONE ANOTHER

Onubogu and Anor v. The State (1974) 9 S.C. 1, 20: the Supreme Court opined that where in a criminal case, one witness called by the prosecution’ contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that a witness was hostile, before they can ask the court to reject the testimony of one witness in preference for the evidence of the discredited witness. It is not competent for the prosecution to discredit one and accredit the other.

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PROSECUTION MUST NOT CALL ALL WITNESSES, SUFFICIENT WITNESSES ARE ENOUGH

Secondly, it is a well established principle of law that it is not necessary for a person on whom the onus of proof lies, even in criminal cases, to call every available piece of evidence in order to discharge that burden. It is enough if evidence is tendered sufficient to discharge the onus which the law lays upon the prosecution. See: Francis Odili v. The State (1977) 4SC 1 or (1977) 11 NSCC 154 at 158 and Joshua Alonge v.I.G. of Police (1959) SCNLR 516; (1959) 4 FSC 203 or (1959) 1 NSCC 169. In the Francis Odili case, the appellant was convicted and sentenced to death. Following his arrest, the appellant was identified at an identification parade by one of the two Rev. Sisters they violently robbed with arms. At the trial, he pleaded alibi. The learned counsel contended inter alia that the evidence of identification was unreliable and that the prosecution failed to call two other eye witnesses to the incident. On appeal, this court per Alexander C.J.N. stated as follows:- “Counsel’s last submission was that the 2 night guards should have been called as witnesses as they were present throughout………………..The tribunal, in its judgment, pointed out that the defence had an equal opportunity to call the night guards if they considered that the evidence of the night, guards would be favourable to them. The tribunal found no merit in this submission and we unhesitatingly agree. The prosecution is not required to call very available piece of evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt.”

— Iguh, JSC. Oguonzee v State (1998) – SC.131/97

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