WHO IS A TAINTED WITNESS?

A tainted witness has been classified as one who is either an accomplice or by the evidence he gives, whether as a witness for the prosecution or defence, may and could be regarded as having some purpose of his own to serve. See: Ishola v. The State (1978) NSCC 499 at 509.

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

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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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WITNESS INCONSISTENT ON MATERIAL FACTS

Thus, in considering and ascribing probative values to the evidence of witnesses, a Court is under duty to appraise it to see whether they are admissible, cogent, credible and probable. Thus, in the discharge of this onerous but very essential duty, a Court will be wary of crediting any witness who has either been so discredited or his so inconsistent on material facts in contention between the parties. It is for this reason that it is settled law that no witness who has given materially inconsistent evidence on oath is entitled to the honour of credibility and such a witness does not deserve to be treated as a truthful witness. See Ezemba v. Ibeneme (2009) 14 NWLR (Pt. 789) 623.

— B.A. Georgewill JCA. Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Ors. (CA/L/427/2016, 9 Mar 2018)

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WITNESS DEPOSITION MUST BE FILED WHETHER WITNESS IS SUBPOENAED OR NOT IN AN ELECTION PETITION

From the foregoing judicial decisions, it is clear that in election petition litigation, whether the witnesses which a party intends to call are ordinary or expert witnesses and whether they are willing or subpoenaed witnesses, their witness depositions must be filed along with petition before such witnesses will be competent to testify before the tribunal or court.

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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WHEN IS A WITNESS TAINTED

The position is that a tainted witness is either an accomplice or a witness who has an interest to defend or a purpose to serve in a case in which he is called upon to give evidence as a witness. It has to be shown that the witness has some peculiar interest to protect or purpose to serve in the evidence he gives in a case in order to make him a tainted witness.

– M.L. Garba JCA. Odogwu v. Vivian (2009) – CA/PH/345/05

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THERE CAN BE CONVICTION BASED ON THE TESTIMONY OF A SOLE WITNESS

The law is trite that unless where the law prescribes otherwise, there can be a conviction based on the evidence of a sole witness. Such evidence of a sole witness must be cogent, strong, credible and reliable before a Court can rely to found a conviction. See Oduneye v The State (2001) 2 NWLR (pt 697) 311, Abogede v State (1996) 5 NWLR (pt 449) 279 at 280, Ighalo v The State (2016) LPELR – 40840 (SC). 27 Ordinarily, the credibility of evidence does not depend on the number of witnesses who testify on a particular issue, but it depends on whether the evidence of a single witness is believable and accepted by the Court and if so believed by the Court, then it is sufficient to ground a conviction. SeeAli v The State (1988) 1 NWLR (pt 68) 1, Lase v The State (2017) LPELR – 42468 (SC), Abogede v The State (1996) 4 SCNJ 227.

— J.I. Okoro, JSC. Chibuike Ofordike V. The State (SC.695/2016, 2019)

WHERE PROSECUTION WITNESS CONTRADICTS ONE ANOTHER

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WHO IS A TAINTED WITNESS?

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NOT CALLING VITAL WITNESSES VS NOT CALLING A PARTICULAR WITNESS

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WITNESS INCONSISTENT ON MATERIAL FACTS

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WITNESS DEPOSITION MUST BE FILED WHETHER WITNESS IS SUBPOENAED OR NOT IN AN ELECTION PETITION

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WHEN IS A WITNESS TAINTED

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THERE CAN BE CONVICTION BASED ON THE TESTIMONY OF A SOLE WITNESS

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