Presentation of Oral Evidence, Section 182

Duty of Party to Call Witnesses

Evidence is usually tendered in court through witnesses. The evidence

must of course be relevant and admissible in accordance with the rules we
have been reviewing. The witness must also be competent to give
evidence. The court we saw earlier may, in lieu of oral evidence of
witnesses, require that certain matters be proved by affidavit evidence.

It is the duty of each party to a case to call those witnesses whose

evidence would be relevant to the issue before the court and would assist
that party discharge the evidential burden cast on them. Whereas it is usual
for the parties to a civil, case and the complainant in a criminal case to give
evidence, The Gambia Court of Appeal has held that the failure of a
complainant in an indecent assault case to testify was not fatal to the case
if all the elements or ingredients of the offence were otherwise proven. In
the case of Ebrima Bajinka and another versus The State the court,
considering a ground of appeal that the verdict was erroneous on the
grounds that the complainant in such a case had failed to testify, ruled as
follows:

where upon evidence accepted by the trial court, all the ingredients of the
offence have been proved, the absence of the evidence of the person
indecently assaulted should not alone make a difference to the case. If the
law were to be otherwise, infants yet unable to speak, and persons unable
to communicate by reason of infirmity would be indecently assaulted with
impunity since they would not be able to give evidence.

The court relied on the case of R versus Barrat in which a girl of fourteen,
blind from six weeks old, wrong in her mind and hardly capable to
understand anything, was not called to testify on a complaint of rape
involving her. The subsequent conviction was to disturbed by reason of
such failure

This case is to be contrasted with the decision of WACA in R versus Kuree

in which the complainant in a rape case was not called to testify. The court
held that without this evidence the trial judge could not adequately gauge
the truth and that in the fair administration of the criminal law the conviction
could not be allowed to stand.

Undoubtedly, a complainant's testimony regarding her alleged rape is the

best direct evidence possible, in the absence of eyewitnesses. If adequate
cross-examination is to be conducted by the defence with a view to eliciting
the truth, the presence of the complainant would be essential.
Corroborative physical signs on the complainant may require her
examination in evidence. How can the defence of consent be successfully
urged in the absence of the complainant? There is clearly a very strong
case, given the pitfalls and dangers in sexual assault cases for requiring a
complainant to come forward to give evidence and be subjected to cross-
examination.

It is submitted that the two cases are not irreconcilable and that if the
material evidence on the charge had been available in the second case, it
would probably not have made a difference whether or not the complainant
had been called. The decision in the Bajinka case is to be understood in
the sense that if all the elements or ingredients of an offence are found
proved, notwithstanding the failure of the complainant to testify, then such
failure will not affect the verdict. It would indeed mean that all the dangers
and difficulties highlighted in the Kuree case would have to be overcome in
order for all the ingredients of the offence to be found to have been proved.
If the defence however were to require her attendance for cross
examination and were denied the opportunity to do so, given that she is a
material witness, a different conclusion would be possible.

In criminal cases, the duty of the prosecution is much broader as it entails

the obligation to make available all the witnesses and the evidence
pertinent to the fact in issue, even where it favours the defence. There is a
twofold duty on the prosecution to call the material witnesses or to make
them available in the trial to the defence for cross examination. See R
versus Essiem, Twumasi-Ankrah versus R. In the cases of Momodou
Mbenga versus The State, the appellant had been convicted for unlawful
possession of drugs. The prosecution’s case was that the drugs had been
discovered when a search squad raided the appellants home. The drugs
were said to have been discovered by a particular police officer, A. He was
not called as a witness Both at the trial and on appeal the appellant had
denied the charge and complained that officer A should be called. This was
not done. The court allowed the appeal on the grounds that the prosecution
had failed to prove their case beyond reasonable doubt, the accused
having been denied the opportunity to cross-examin a key witness.

The duty to make a witness available however is understood in a restricted

sense. The Gambia Court of Appeal in the case of Omar Sey versus The
State, Criminal Appeal No. 11/93, in which the prosecution had failed to call
a material witness, the court restricted the principle by stating that the
prosecution is not bound to call every witness it has to testify but if the
witness has some important evidence to give which could have tilted the
case one way or the other to the benefit or detriment of the accused then if
the prosecution does not call that witness, it has the duty to make that
witness available to the accused for purposes of cross-examination. The
court continued that,

making a witness available does not mean that the prosecution, not
needing the witness, should bring or subpoena him to court and hand
him over to the accused. All the prosecution can do and should do is
to tell accurately where to find the witness, his name and any special
characteristics of the witness for identifying him if he has any.

In the instant case the court ruled that the prosecution had discharged their
duty by providing the name and regular address of the witness.

According to Archbold, 35th Edition, Paragraph 584, the court may

comment on the absence of evidence which might have been given,
including the failure of the prisoner to exercise his right to give evidence, if
in the discretion of the court such comment appears to be fair and just.

While there is a duty to call relevant witnesses, it is also incumbent on the

court, particularly in criminal cases, to afford the parties a reasonable
chance of calling their witnesses. In the case of Ebrima Sanusi versus
Commissioner of Police, it was clear from the record that the appellant,
convicted of escaping from lawful custody C/S 105 of the Criminal Code
and being in unlawful possession of articles found in his possession C/S 35
(1) of the Police Ordinance, wanted certain witnesses called for him to
satisfy the court as to how he obtained the goods found in his possession.
The Gambia Court of appeal held that the refusal of the learned magistrate
to grant the appellant an opportunity of calling witnesses in his defence
amounted to a denial of justice. For this and other reasons the conviction
was quashed on appeal.

The attendance of a witness in court is secured through a subpoena issued

by the court at the instance of the party wishing to call that witness.

Discretion of Court to Call Witnesses

As to whether the court can sno motu call witnesses, the West African
Court of Appeal in Civil Appeal No. 2/52 Alhagi Ousman Jeng and Two
others versus Dawooda Sow and another appears to have approved the
ruling in Re: Enoch 1910 Lr 1 KB 327 that,

it is certainly not the law that a judge or any person in a judicial

position has any power himself to call witness of fact against the will
of either of the parties.

In the case of Sonko vs Jallow , The Gambia Court of Appeal held such a
course of action improper and the reception of the evidence equally
improper.

What is the position in regards criminal cases?

In criminal cases however the matter is put beyond doubt by Section 123 of
the Criminal Procedure Code which empowers every court at any stage of
any inquiry, trial or other proceeding to call a person as a witness, to record
and re-examine any person already examined, if his evidence appears to it
essential to the just decision of the case. This provision appears to lend
statutory support to a common law principle restated thus in the case of
Rex versus Kuree.

The trial judge also has discretion himself to call a witness in the interest of
justice and we conceive it to be his duty to exercise this discretion when by
so doing the real truth can be ascertained.

Once the witnesses have assembled they should all be out of court and out
of hearing, lest their testimony is influenced by the testimony of others. In
addition, the court may make such orders as it considers necessary to
prevent communication and hence collusion and fabrication, between
witnesses either in the court house, its precincts see section 190, or
elsewhere. The parties to the case, who are also witnesses, are not
however affected by this rule and may stay in court throughout the
proceedings. The practice is for each party to first testify before calling his
witnesses to avoid tailoring of evidence.

Each witness needs to be sworn by subscribing to the oath contained in

Schedule 11 to the Evidence Act, using the Holy Quran or Holy Bible or the
Old Testament, as the case may be. A witness may however decline to
subscribe to the prescribed oath either on the grounds that oath taking is
contrary to his religious belief or that he lacks religious belief. The court has
discretion to admit the evidence of such a person who does not take the
oath provided that he affirms. The invalidity of the oath does not affect the
oath or the testimony which follows it example section 183 of the Evidence
Act.

Generally, the process of presentation of oral evidence subjects each

witless to three stages of questioning, viz examination in chief, cross-
examination and re-examination.

Examination-in-Chief of a witness is conducted by the party calling that

witness. Its object is to elicit from the witness a factual, narration of that
party's case. Leading questions, that is, questions which suggest the
answer desired, example, usually prefaced with "Is it not true?" "Is it not
correct?" or statements such as "It is true, is it not?", are not permitted in
examination in chief. Unless objections are taken to them by the other party
the witness will answer and the response will form part of the record of
evidence. Leading questions are permissible on matters not in dispute or
which are irrelevant to the issue. Documents and other things which it is
desired to put in evidence should be tendered by the party under
examination in chief by an application to tender after the proper foundation
has been laid for the admission of the evidence. The court will hear
arguments on any objection and rule on the admissibility of the evidence.

Notwithstanding the absence of any objections, it is incumbent on the court

to ensure that all evidence, oral, documentary or real which is being
tendered, is admissible in accordance with the law of evidence.

Hostile Witnesses
Generally a party is not allowed to impeach or attack the credibility of his
own witness. He may only do so if the witness proves to be adverse.
According to Phipson, a witness is considered adverse only when in the
opinion of the court he bears a hostile animus to the party calling him and
so does not give his evidence fairly and with a desire to tell the truth to the
court not merely because he contradicts his proof or is unfavourable to the
party calling him.

Once the witness is adverse he may, with the leave of the court, be treated
as hostile witness. He may then be contradicted by other evidence from the
party calling him or by leave of the court, proof of earlier inconsistent
statements made by him may be given by the party calling him. The party
may now cross-examine that witness, put to him leading questions and the
previous inconsistent statements and the circumstances under which it was
made and treat him as if he was an opposing witness. The result is that the
evidence of such a witness becomes unreliable while at the same time his
previous statement does not constitute evidence either.

In thc case of R versus Golder and others, it was held that, when a witness
is shown to have made previous statements inconsistent with the evidence
given by that witness at the trial, the jury should not merely he directed that
the evidence given at the trial should be regarded as unreliable, they
should also be directed that the previous statements whether sworn or
unsworn, do not constitute evidence upon which they can act.

Caution should be exercised before treating a witness as hostile and thus

losing the benefit of his evidence. Often, imprecise, ambiguous, confusing
or badly put questions by a party or his counsel can elicit responses which
appear hostile but merely emanate from a witness who is himself confused
and bewildered by the question put. The problem may be with the question
rather than the answer. If he is hostile however, it is best he be proceeded
with as a hostile witness, if for nothing at least to nullify the effect of his
hostile evidence.

Refreshing Memory, Section 217 to 219

Memories fade with time. Some things are also difficult to commit to
memory and may have to be recorded in writing. It is not uncommon
therefore that a witness while giving evidence may find it difficult or
impossible to recollect a particular fact without refreshing his memory from
a record or a document. A common example is a police officer relying on
entries made in his pocket notebook of matters relating to an investigation.
A witness may thus refresh his memory with the leave of the court from
such a document provided that the writing was made by the witness at the
time the transaction was still fresh in the memory of the witness. A witness
may also refresh his memory from a document which, though not made by
him, was read by the witness at the time aforesaid (the document itself
therefore must have been made at that time) and recognized and accepted
by the witness as accurate. Where a witness refreshes his memory from a
document, the other party is entitled to have access to that document and
to cross-examine the witness on that document.

Cross-examination; At the conclusion of examination in chief, a witness is

subject to cross-examination by the opposite party. The object of such
cross-examination is to challenge and test the veracity of the witnesses'
assertions, whether of fact or of opinion, where such opinion is admissible.
Leading questions may be asked in cross-examination. While there is a
wide latitude given to the party cross examining in terms of the range of
such examination, it would be inaccurate to state as is often done that "the
sky is the limit" in cross-examination. Relevance is still the test for the
validity of questions. The latitude is not to be abused by endless
interminable questions on irrelevant matters.

As The Gambia Court of Appeal observed in the case of Ousainou Jawo

and Others versus The State, said, although counsel must not be deterred
from doing their duty, counsel for the defence should exercise a proper
discretion not to prolong the case unnecessarily. It is no part of his duty to
embark in lengthy cross-examination on matters which are really not in
issue.

There are various acceptable ways of challenging a witness. His credibility

may be questioned. He may be shown to be biased, to be inaccurate, to
have poor recollection, to have made previous inconsistent statements on
the matter, to be an unreliable character etc, see section 222 of the
Evidence Act. Leading questions may be asked of the witness.

It is important to bear in mind that failure to cross-examine a witness may

amount to admission of the fact as stated by him. Even where he is cross-
examined the failure to challenge him on the material facts as presented by
him may amount to an admission or at least prevent the party cross-
examining from afterwards putting forward a different version of facts when
the witness had not been given the opportunity to refute that version.

As pointed out by Herschell L.C. in the case of Browne versus Dun, it

seems to me to be absolutely essential to the per conduct of a cause,
where it is intended to suggest that, a witness is not speaking the truth on a
particular point, to direct his attention to the fact by some questions put in
cross-examination showing that, that imputation is intended to be made,
and not to take his evidence and pass it by as a matter altogether
unchallenged, and then, when it is understood that if you intended to
impeach a witness you are bound, while he is in the box, to give him an
opportunity of making any explanation which is open to him.

The Judicial Committee of the Privy Council in considering on appeal the

case of CFAO (Gambia) Ltd versus Taal declared that, the failure of one
party to call a witness who could give evidence to dispute the account of
the other party might, depending on the particular circumstances,
strengthen that other party's case. But in the instant case, where the trial
judge did not believe the account of the new contract given by the plaintiff,
and where that account was, in itself, improbable, the court would consider
that the absence of the defendant's manager from the witness box did not
undermine their defence.

It all depends on the circumstances of the case and the courts perception
of the strength and cogency of the unchallenged evidence. In the case of
Gambia National Insurance Company Limited versus Ndure, The Gambia
Court of Appeal reviewed the duty of the court when faced with such
unchallenged or uncontroverted evidence, as distinct from admitted
evidence. Lartey J.A, as he then was, delivering the judgment of the court
declared as follows.

Even if it is conceded that the plaintiff's evidence at the trial court was
unchallenged, that per se should not preclude the Court of Appeal or the
trial court from assessing the strengths and weaknesses of the evidence
adduced by the parties. It is therefore necessary to distinguish between
findings based upon the credibility of witnesses and findings based upon
evaluation of the evidence. In the latter case, an appellate court is in as a
good position as the trial court in evaluating the evidence. Again even if, as
in the instant case, the defendant had failed to cross examine the plaintiff
or challenge him on the issue of the use of force as a means of entering the
room, that per se would not amount to supporting the plaintiff’s case. In
such a situation, the trial court would be duty bound to consider the
unchallenged evidence, or even inadmissible evidence not objected to, in
the overall assessment of the merits of the case, unless the evidence was
inadmissible per se, as precluded, for instance, by statute. In evaluating the
evidence in the instant case, the court would conclude that even if the
evidence of the plaintiff stood unchallenged by the defendant that cannot
support the plaintiff's weak case in failing to discharge the burden of
proving that the theft occurred in consequence of the use of actual force or
violence.

Again, in the case of Bass versus Camara, The Gmobin Court of Appeal in
a judgment delivered in 1999 shortly after the above decision reiterated
that, it is a settled principle of law that a party should put to a witness of the
opposite side by way of cross examination, his version of the contested
issue. However, failure to cross examine is not necessarily conclusive
against the party failing to cross examine, such failure being a matter which
the court may take into account. And failure to cross examine may be
inconsequential if the party concerned has earlier given notice by way of
pleading. In the instance case since the defendant failed to put a material
fact to the plaintiff in cross-examination, a material fact on which was
founded his defence of frustrated contract , the court would construe his
failure as acceptance of the plaintiffs version of the material fact.

Can the court rely on the evidence of a witness who has given his
testimony in examination in chief but is not made available for cross-
examination by the opposing party? It appears that in so far as the
testimony of the witness as not been tested and tried under cross examine,
it cannot be accepted by the court as evidence. The Gambia Court of
Appeal recently faced the issue in the case of Momodou Joof versus
Baboucar Kah, in which the appellant sued for damages for trespass and
an injunction failed, after giving evidence in chief, to present himself for
cross examination. The court, Francois J.A, observed on appeal that;

Clearly an untested deence cannot be used in evaluating the strength and

weakness of the case for its determination. It is generally acknowledge that
truth is beaten out on the anvil of cross examination. The appellants
testimony is unshaped, unsmelted ore.
It is accordingly, my view that on grounds of fairness, if for nothing else, the
whole of the appellant's evidence should be thrown overboard.

Where several accused are standing trial, each co accused is entitled to

cross-examine the prosecution witness before they are, re-examined by the
prosecutor. Failure to offer an opportunity to an accused to cross-examine
a co-accused’s damaging evidence was one of the grounds on which the
conviction of the appellant described by the court as a travesty of justice
was set aside in the case of Musa Badjie versus The State. In the same
case a witness called by an accused may be cross examined by the co-
accused by the prosecution.

The opposing party can tender documentary or real evidence through a

witness under cross-examination. Good crossexamination requires skill.
Many are the hints and suggestions to the newly enrolled practitioner. That
is however not within the province of the law of evidence. The Technique of
Persuasion by David Napley is highly recommended for anyone who seeks
guidance on the art of cross-examination.

A few points need however to be stressed. First, cross examine is not

mandatory. Do not cross-examine a witness if it is not necessary. It is only
necessary where the witness has given testimony damaging to your case.
Second, do not ask questions to which you do not already know the
answers and so be in a position to contradict the witness if he lies. Third,
effective cross examination does not consist of shouting at or insulting the
witness. It often has the effect only of making the questioner look foolish
and of confirming the credibility of the witness.

Re-examination
Upon the conclusion of cross-examination, the witness is now subject to re-
examination by the party who called him. The object of re-examination is to
clear up doubts and ambiguities that arose in the cross-examination. It
must be confined to matters that arose in the cross-examination. If a matter
has not been dealt with under cross-examination, it cannot be the subject
of re-examination. Re examination is not an occasion to remedy errors or
omissions made in cross examine or to introduce new matters. In
exceptional cases and with the leave of the court new matters may be
raised in re examination. See section 193 sub 3. This would however entitle
the opposing party to cross-examine the witness on the new matter.

General Principles for Examination of Witnesses.

The examination of witnesses generally is not a "free-for-all". It is regulated

by rules, some of which have already been set out in the preceding
paragraphs. It is useful to remember the following in addition.

1. Objections to evidence should be taken at the time the evidence is

offered. If the objection is to a question, and provided it is not a
frivolous objection!, the court will usually make a note of the question,
the objection and the decision of the court as to whether the question
was put or not. If objection is to the admissibility of evidence,
arguments will be heard on the issue and the ruling of the court given
with reasons there and then or to be incorporated in the judgment.

Although section 205 of the Evidence Act provides that objections to

evidence "shall be made at the time the evidence is offered", it is submitted
that failure to do so does not, at least in criminal cases, prevent an
appellant from raising issues of admissibility for the first time on appeal. In
a criminal trial the duty of the prosecution is to establish the case beyond
reasonable doubt on the basis of lawful evidence. Whether an objection
has been taken or not, it is incumbent on the court to ensure that
inadmissible evidence is not the basis for a criminal conviction.

The position as regards civil cases appears, on the strength of the decided
authorities, to be flexible taking into account the attitude of the challenger to
the admissibility of the evidence at the trial stage. However, as the court
declared making a distinction between various kinds of evidence in Gambia
Sport Fishing Limited and another versus Cosmos Air Plc.

The fact that inadmissible evidence was received without objection the trial
does not bind this court, sitting on appeal, to accept it as well.

The authority relied upon however, that is, Marfo versus Adusei, restricted
the application of this rule to only certain types of evidence. In the case of
Seagull Cold Stores Limited versus Alhaji Sir Alieu Jack, the court held
that:.
There are certain types of evidence, such as hearsay, and unstamped and
unregistered documents which are inadmissible per se. They cannot form
the basis for a decision, and objection to them may be taken at any stage
of the trial or appeal but in our opinion the case is different where evidence,
which could have been ruled out as inadmissible because it is adduced to
prove a material fact which was not pleaded has nevertheless been
adduced without objection and is before the judge.

Thus failure to object will not affect the admissibility of all evidence but only
some types of evidence.

2. Unfair questions, such as those involving rolled up questions or a

question which assumes a certain fact or state of affairs not yet
established or on which no evidence has been led are not
permissible. It is unfair for instance to ask a witness, "Have you
stopped beating your wife?" in the absence of any evidence of such
previous conduct! An answer either way amounts to a confession!

3. The whole purpose and object of examination of witnesses is to elicit

evidence to assist the court in resolving the issue before it.
Examination, particularly cross-examination as it is sometimes
erroneously believed, is not an occasion for insulting or being
unnecessarily offensive to witnesses or asking them scandalous
questions. The court will not permit such a line of questioning.

4. Where in the course of the testimony of a witness it becomes

apparent that the matter he is testifying about is contained in a
document or he is about to give evidence of the contents of a
document not before the court, the opposing party has a right and
should object to such oral evidence and insist on the production of
the document. In the alternative a proper foundation should be laid for
the admission of secondary evidence of the contents of the
document.

5. A witness may be subpoenaed merely to produce a document. If he

does so without giving evidence, he is not subject to cross
examination.

6. Witnesses are obliged to answer all questions put to them. Failure to

 do so is a contempt of court punishable under the law. There is no
obligation however for a witness who is not an accused person to
answer a question which might incriminate him (in the sense of
exposing him to a criminal charge), nor for an accused person to
answer a question tending to show that he had been guilty of
offences other than the one with which he is charged, unless those
previous instances are properly an issue before the court. The right to
protect oneself from self-incrimination thus provides an exception to
the obligation of witnesses to answer questions put to them.

7. Each witness is under a legal duty to answer questions truthfully.

Giving false evidence is an offence. In this respect it makes no
difference whether the witness testified on oath or on affirmation. The
sanction applies to both situations.

Admissibility and Weight of Evidence

The rules set out in the Evidence Act are, in the main, concerned with the
conditions of admissibility of evidence, that is, the conditions under which
evidence will be received and taken into account by the court. We saw that
the principal test for admission of evidence is its sufficient relevance to the
issue. Only facts which are sufficiently relevant are admissible. But not all
relevant facts are admissible. Some are excluded on the grounds of public
policy or the requirements of fairness. Hearsay evidence for instance is
relevant but it is inadmissible. There are rules governing the reception of
documentary evidence, real evidence, expert evidence, oral evidence,
evidence of opinion and character etc.

At the conclusion of the presentation and reception of the evidence (which

can be regarded as the first stage of the trial), the next stage in the trial
process is the consideration by the court as to what weight to attach to
each piece of evidence. Which witness is to be believed? Which witness is
not to be believed? Which witnesses are to be regarded as credible? What
conclusions or inferences are to be drawn from the established facts? The
law of evidence provides little guide in resolving these issues, save to some
extent the rules relating to corroboration.

The assessment and weighing of facts is essentially a matter of the

exercise of judicial discretion taking various factors into account. The
principles of judicial notice and the operation of presumptions may facilitate
the establishment of certain facts. The consistency or inconsistencies of the
evidence and the demeanour of the witnesses are additional factors. Logic
and human experience provide judicial officers with a basis for drawing
inferences and conclusions from established facts. At the end of the day, it
is for the judge or magistrate, after having relied on the rules of evidence to
determine which evidence is to be admitted by the court, to hence proceed
to the next stage of assessing and evaluating the admitted evidence and
determine what conclusions should be reasonably drawn from the
evidence.