THE PRESBYTERIAN JOINT HOSPITAL UBURU & ORS v. MR. JOHN ONELE & ANOR
(2018)LCN/11967(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/E/247/2017
RATIO
EVIDENCE: WHERE EXTRA-JUDICIAL STATEMENT IS MADE
“It is settled law that this provision generally applies to statements made in previous proceedings, and to extra-judicial statements and as such it means that a witness can be cross-examined on his statements in previous proceedings if the required procedure of law is followed. See MADUMERE & ORS v. OKAFOR & ORS (1996) 4 NWLR Pt. 445 Pg. 637 at 649; LAYONU & ORS v. THE STATE (1967) 1 ALL NLR 198; LOCKNAN & ORS v. THE STATE (1972) ALL NLR 498; ALAKIJA v. ABDULAI (1998) 6 NWLR (PT. 552), L.S.D.P.C v. ADOLD/STAMM INTER LTD (1994) 7 NWLR (PT. 358) 545. It is important to note that the condition for using the statement is that it must be relevant to the proceeding.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. THE PRESBYTERIAN JOINT HOSPITAL UBURU
2. THE CHIEF MEDICAL DIRECTOR, PRESBYTERIAN JOINT HOSPITAL UBURU (DR. RASAQ OGENEBOR)
3. THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA
4. CHIEF HON. JOHNSON EDE
5. HON. EZEOGHU JOSEPH OGBONNA
(For themselves and on behalf of Amamkpuma Ukawu Community in Onicha L.G.A, excepting the Family of Late Onele Nwekpe) Appellant(s)
AND
1. MR. JOHN ONELE
2. MR NICHOLAS OGBONNA ONELE
(For themselves and on behalf of Late Onele Nwekpa of Amamkpuma Ukawu in Onicha L.G.A) Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an interlocutory appeal against the ruling of Hon. Justice F.A Edem sitting at the High Court of Ebonyi State, delivered on 20/3/17 wherein the learned trial judge in a considered ruling held that the Appellant cannot cross examine the 2nd Respondent on a sworn statement that was already struck out by the Court.
The facts that led to this appeal are as follows:
The Respondents were the Plaintiffs who initiated this action against the 1st and 2nd Defendants herein the 1st and 2nd Appellants by a writ of summons on 18th March, 2015 claiming against them declaration of title over land, injunctions and damages.
Parties filed their respective originating processes. The Respondents filed along with their claim, written statements on oath of their four witnesses; the 1st and 2nd Appellants joined issues with them and filed their statement of defence and the sworn written statements on oath of their witnesses.
Pursuant to an application by the 1st and 2nd Appellants, the 4th and 5th Appellants were joined in the suit, and they amended their processes in accordance with the Court order. While the Respondents filed a new statement of claim dated 29/6/2016 accompanied with the written statement on oath of all their proposed witnesses, the Appellants filed an amended statement of defence together with written statements on oath of their eight proposed witnesses.
Also the 3rd Appellant was joined in the suit on an application by the Respondents. The Respondents filed another fresh statement of claim with the written statements on oath of their witnesses while the Appellants did same by filing further amended statement of defence with written statements on oath of their proposed witnesses.
When hearing of testimonies commenced on the 20/3/2017, Pw1 applied that his previous written statements on oath variously dated 18/3/2015, 29/6/2016 and 27/9/2016 be withdrawn as he no longer intended to rely on them. Though vehemently opposed, the learned trial Judge granted the application to withdraw the said statements and they were accordingly struck out.
However, under cross-examination by the learned counsel to the Appellants, the 2nd Respondent was asked questions relating to his previous written statements on oath sworn to on 18/3/2015, 29/6/2016 and 27/9/2016 and the Respondent’s counsel objected on the ground that the Appellants’ counsel could not cross examine the PW1 on those struck out sworn written statements.
After listening to both counsel on the propriety or otherwise of cross examining the Pw1 on those previous sworn written statements already withdrawn and struck out by the trial Court, the trial Court ruled upholding the objection of the Respondent’s counsel.
Dissatisfied, the Appellant filed a Notice of Appeal dated 27th March, 2017. The Appellant?s brief dated 2nd June, 2017 was filed on 5th June, 2017. Record was transmitted 5th May, 2017, while the Respondents’ brief of argument was filed on 4th December, 2017.
In the brief settled by Uche S. Awa Esq. the Appellants raised two issues for determination as follows:
1. Whether the learned trial Judge was justified in stopping counsel for the appellants from cross examining the 2nd Respondent as to previous written statements on oath made by the 2nd Respondent in the instant suit, though withdrawn and struck out, when the line of cross-examining adopted by the appellants counsel was in line with Section 231 and 232 of the Evidence Act, 2011, and was for the purpose of contradicting the 2nd Respondent and to test the 2nd Respondent?s credibility and to shake his credit.
2. Whether Sections 231 and 232 of the Evidence Act, 2011 relating to cross examination as to previous statement in writing, is limited only to previous statements in writing forming part of the proceedings in the particular case in Court.
The Respondents in the brief settled by C.A. Unah Esq. and D.I. Njoku Esq., raised a lone issue for determination as follows:-
Whether the learned trial judge erred in disallowing the learned counsel from the Appellants from cross examining the 2nd respondent (i.e the Pw1) on his previous sworn written statements in the instant suit, same having been withdrawn and struck on the basis that the Pw1 did not intend to rely on them as fresh sworn written statement of the Pw1 had been filed following the amendment of the Respondents’ statement of claim?
In my humble view, the first issue distilled by the Appellants’ counsel covers all the complaints in this matter, I shall so adopt the first issue in the Appellants’ brief in the determination of this appeal and recouch same as follows:-
Whether the learned trial judge was justified having regard to the provisions of Section 231 and 232 of the Evidence Act 2011 in refusing to allow the Appellants’ counsel cross-examine the Respondents’ witnesses with processes in the Court’s file in the circumstances of this case
SOLE ISSUE
Mr. Uche S. Awa Esq. for the Appellants argued that by the provisions of Sections 231 and 232 of the Evidence Act 2011, the 2nd Respondent can be cross-examined on previous statements made by him. The Sections also stipulate conditions the Appellants’ counsel must satisfy before engaging in that line of questioning and the conditions were adequately satisfied by him.
Counsel submitted that he was following the right procedure and it was therefore wrong for the trial Judge to have stopped him from pursuing the line of cross examination, more so, it was meant to contradict the 2nd Respondent and the contradictory documents to be used in the process of contradicting the 2nd Respondent were part of the trial Court’s record until struck out by the trial Court.
Counsel argued that the Supreme Court had explained in plethora of cases the provisions of Sections 198 and 199 of the old Evidence Act which is in pari materia with Section 231 and 232 of the Evidence Act 2011. Counsel cited MADUMERE & ORS v. OKAFOR & ORS (1996) 4 NWLR Pt. 445 Pg. 637 at 649; LAYONU & ORS v. THE STATE (1967) 1 ALL NLR 198; LOCKNAN &ORS v. THE STATE (1972) ALL NLR 498; OBADE v. THE STATE (1991) 6 NWLR Pt. 198 Pg. 435; SALAWU AJIDE v. KADIRI KELANI (1985) 3NWLR Pt. 12 Pg 248 at 250; AMODU v. STATE (2010) 2 NWLR Pt. 1177 Pg. 47 at53, DIMKPA v. CHIOMA (2010) 9 NWLR Pt. 1200 Pg. 482 at 503.
Counsel argued that the learned trial Judge misdirected himself and consequently arrived at a wrong decision when he held that for a witness to be asked questions in respect of previous statements she had made for the purpose of contradicting him and/or impeaching his credit, the witness must categorically agree that he still vouches for the truth of the said statements as a basis for accepting them as part of the evidence.
Counsel emphasized that it is indeed not part of the law that for a witness to be asked questions in respect of previous statements he made for the purpose of contradicting him and/or impeaching his credit, that the witness must categorically agree that he still vouches for the truth of the said statement as a basis of accepting them as part of the evidence.
Counsel argued that the Supreme Court had given credence to this position in the case of SALAWU AJIDE v. KADIRI KELANI (Supra) and the Appellant’s counsel satisfied the condition laid in the Evidence Act and was therefore following the correct procedure. Counsel argued that if the Respondents are shielded from answering this questions of previous completely contradictory traditional history of ownership of the land in dispute as represented by their previous written statements on oath, which means that their later traditional history represented by their testimony at the Court below will go unchallenged leading to an irreparable injustice against the appellant’s right to fair trial.
Counsel submitted that the Appellants’ counsel is entitled to ask the 2nd Respondent the questions disallowed by the learned trial Judge to further test the 2nd Respondent’s credibility and to shake his credit as well, and that the learned trial Judge imported words that are not supported by Sections 231 and 232 of the Evidence Act in to the law. Counsel argued that the provisions of Section 231 and 232 of the Evidence Act received judicial imprimatur from the highest courts of the land long ago and same is now settled as borne out by all the judicial authorities and authoritative legal books cited before the learned trial Judge by counsel for the appellants and actually made available to enable the Court have a full view of the law before the ruling.
Counsel submitted that the underlying factor is that the content of the statement is relevant to the proceedings, and cited CORDELIA MOZIE v. MBEBIE & ANOR (1996) NWLR Pt. 1167; SALAMI v. STATE (1988) 3 NWLR Pt. 85 Pg. 670 at Pg. 679. Counsel further argued that Section 215 of the Evidence Act is also applicable and empowers counsel to cross examine the 2nd Respondent on any other matter relevant to the issue before the Court below.
Learned counsel to the Respondents Mr. C.A. Unah Esq. in response contended that the trial Court was right in disallowing the Appellants’ counsel from cross examining PW1 on his previous sworn written statements on oath in this suit because statements previously made as provided for in Sections 231 and 232 of the Evidence Act, 2011 does not include sworn written statement of a proposed witness frontloaded with the statement of claim and later withdrawn and struck out by the Court in the same suit.
Counsel submitted that a sworn written statement is proposed evidence of a witness which does not and cannot amount to evidence unless and until the said sworn statement is adopted by the maker.
Counsel argued that by the provisions of Order 16 Rule 1(1) of the High Court Rules of Ebonyi State, 2008, a statement of claim shall be supported with, inter alia, list of witnesses and the sworn written statement of the proposed witnesses before the processes will be accepted by the registrar of the Court for filing. It is then left for such a Plaintiff to call all or some of such persons whose sworn written statements are filed before the Court. And until such a witness while in the witness box adopts his sworn written statement as his evidence, the court cannot rely on such sworn statement for the determination of issues between the parties.
Counsel further argued that the order of Court joining the 4th, 5th and the 3rd Appellants necessitated the several amendments which were made pursuant to Order 13 Rule 17(1) of the High Court Rules of Ebonyi State, 2008. Counsel argued that the amendments were made without objection from either of the parties to the suit and during the hearing, the Pw1 adopted his sworn written statement dated 29/3/2016 as well as his further sworn written statement dated 29/9/2016 and the said Pw1 also with the leave of the trial judge withdrew his previous sworn written statements variously dated 8/3/15, 26/6/16 and 27/9/16 and they were struck out.
Counsel then argued that those sworn written statements on oath having been struck out are no longer before the Court and the witness cannot be cross examined on them. Counsel cited FBN PLC. V. TSOKWA (2004) 5 NWLR (PT. 866) 271 ratio 7.
Counsel emphasized that the essence of joining the 3rd, 4th, and 5th Appellants in the suit and the order of the Court for the amendment of the processes in the matter was to enable parties properly present their cases before the Court for proper and effectual determination of the real issues in controversy between them.
Counsel argued that the various authorities cited by the learned counsel to the Appellants do not apply to this suit as a previous statement made by a witness outside the Court but in different proceeding is not the same as a sworn written statement of a proposed witness which can only amount to his evidence when such witness after taking oath in the witness adopts same as his evidence in the matter. Counsel submitted that each case should be determined on its own peculiarity.
Counsel urged this Court to distinguish the instant case from the authorities cited by the learned counsel to the Appellants as those cases border on extra judicial statements of witnesses while the present suit borders on sworn written statement of a witness in the suit which had been struck out in the same suit by the same Court.
OPINION
The Appellants had made heavy weather of the fact that the trial Judge was wrong to have held that the Appellants cannot cross-examine the 2nd Respondent on his previous statement on oath which had been withdrawn and struck out. The Appellant relied on statutory and judicial authorities in support of his argument on this point.
Counsel to the Appellant opined that the witness statement on oath that was struck out still remains a previous statement in the tone of Section 231 and 232 of the Evidence Act and the provisions contained therein should apply in cross examining the 2nd Respondent.
In this case, the learned trial Judge stated as follows on page 345 of the record:
”I have listened to the arguments of both counsel on this stubborn and thorny issue and I am of the candid view that for a witness to be asked questions in respect of previous statements he had made for the purposes of contradicting his and/or impeaching his credit, the witness must categorically agree that he still vouches as to the truth of the said statement as a basis for accepting them as part of the evidence. In the instant case, since the written sworn statement in question have been withdrawn and struck out, they no longer form part of the proceedings in this case and it will be out of reason to allow the counsel for the defence to contradict him on their contents. I still stand on the earlier ruling of this Court and say that the question put to the PW1 on this written sworn statement is not proper and the said question is not allowed.”
I think we need to identify some precise issues here and the opinion of the Superior Courts. The first in my view would be the status of a witness statement on oath. The second is the status of the processes that have been struck out in the course of a proceeding. It is the answer to the above questions relative to the issue in controversy that would throw light on this case.
Let me emphasize here that there is no contention between the parties as to the fact that the statement had been withdrawn and subsequently struck out by the trial Court.
When the 2nd Respondent as PW1 testified in Court before the trial Court on 20/3/17 as PW1, he applied through Respondents? to withdraw his previous written statements on oath sworn to on 18/3/2015, 29/6/2016 and 27/9/2016 respectively.
The learned trial Judge granted the application for the previous statements to be withdrawn and struck out. The 2nd Respondent who was PW1 at trial then adopted his latest witness statement made on oath on 15/11/16 which was described as ?Resworn statement on oath of Mr. Nicholas Ogbonna Onele.
The witness was then subjected to cross examination and it was during the cross examination that Appellants’ counsel put to him that his current evidence was contrary to the previous evidence on oath and sought to discredit the Witness on that point.
Let me humbly try to explain what a Witness Statement On Oath is and what it is not.
A witness statement on oath has been defined as the testimony of a witness, reduced into writing, usually on paper. The evidence in the statement on oath is what supports the pleadings. It is usually sworn to before a commissioner for oaths.
It is apposite here to state that witness statement on oath was introduced to replace oral evidence-in-chief thus under the new regime, instead of the witness giving viva voce evidence in chief after being led by counsel in Court, that evidence is instead reduced into writing and sworn to before the commissioner for oaths. This testimony in written form is what is referred to as the ?Witness Statement on Oath.
I will like to set out the provisions of Section 231 and 232 of the Evidence Act 2011 which forms the major basis of this Appeal.
Sections 231 and 232 of the Evidence Act state thus:
231. If a witness upon cross-examination as to a former statement made by him relative to the subject-matter of the trial and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it, but before such proof can be given the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such statement.
232. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question 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 such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of 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 the purposes of the trial, as it deems fit.
It is settled law that this provision generally applies to statements made in previous proceedings, and to extra-judicial statements and as such it means that a witness can be cross-examined on his statements in previous proceedings if the required procedure of law is followed. See MADUMERE & ORS v. OKAFOR & ORS (1996) 4 NWLR Pt. 445 Pg. 637 at 649; LAYONU & ORS v. THE STATE (1967) 1 ALL NLR 198; LOCKNAN & ORS v. THE STATE (1972) ALL NLR 498; ALAKIJA v. ABDULAI (1998) 6 NWLR (PT. 552), L.S.D.P.C v. ADOLD/STAMM INTER LTD (1994) 7 NWLR (PT. 358) 545. It is important to note that the condition for using the statement is that it must be relevant to the proceeding.
In MADUMERE v. OKAFOR cited by the Appellants’ counsel, the Court noted that the essential requirement of Section 199 now Section 232 of the Evidence Act, where a party intends to impeach the credit of a witness by showing that what the witness has said in the present proceeding contradicts what he said in the previous proceeding, his attention must be drawn to those parts of the evidence which are to be used for that purpose.
The Supreme Court in EGBUCHULEM MADUMERE & ORS. v. OKAFOR & ORS(1996) LPELR-1810 held as follows;
”A previous inconsistent statement can be put to a witness in cross-examination for the purpose of testing his credibility. The statement is not admissible for the purpose of proving the truth of its contents. The fact that the statement was made and is inconsistent with the witnesses testimony in the present proceeding is significant. After a careful consideration of the notes made by the learned trial judge before Exhibit ‘G’ was admitted in evidence, I am satisfied that the attention of the 3rd Plaintiff was specifically drawn to those parts of his evidence which were to be used for the purpose of contradicting him and he was reminded of what he said on that occasion. Those portions of his evidence were even read out to him.
In my view, the essential requirements of Section 199 are that where a party intends to impeach the credit of a witness by showing that what that witness has said in the present proceeding contradicts his evidence in the previous proceedings, his attention must specifically be drawn to those parts of his evidence which are to be used for the purpose of contradicting him, he must be reminded of what he said on that previous occasion and he must also be given an opportunity of making an explanation. All these were complied with in the present proceedings and I agree with the Court below that there is no provision in the said section of the law as to the exact time the statement should be tendered. However, the statement should be put in evidence by the defendants as part of their case either immediately or in the ordinary cause of the case. SeeMaurice Cameron v. Anderson (1930) 21 CR. AP. R 178 at 181”
Section 231 is about any previous statement in writing while Section 232 is about a statement made in previous proceeding.
There is no doubt that the underlying factor relevant to be able to cross-examine the 2nd Respondent on his statements is that the content of the statement are relevant to the proceedings. Even though Sections 231 and 232 of the Evidence Act relates to cross-examination as to previous statements in writing, but same is not limited to only previous statements forming part of the proceedings in the case as it covers evidence of a witness taken in earlier proceedings once the purpose is for discrediting such a witness in cross-examination. NJOKU V. DIKIBO (1998) 1 NWLR (PT. 534) 496, ALAKIJA V. ABDULAHI (1998) 6 NWLR (PT. 552), L.S.D.P.C V. ADOLD/STAMM INTER LTD (1994) 7 NWLR (PT. 358) 545.
The provision of Sections 231 and 232 of the Evidence Act covers the case of a witness who has made a statement in Court inconsistent with an earlier extra judicial statement made by him. Appellants? Counsel argued that a witness can be cross examined as to any statement made by him or reduced into writing by someone else for him or on his behalf for example a deposition taken by a magistrate from a witness during investigation or statement made to the police and taken down in writing by the latter, provided that such statements are relevant to the matters in question in the suit or proceedings.
The Supreme Court authority of AGBAHOMOVO v. EDUYEGBE (1999) 3 NWLR Pt. 594 Pg.170 at Pg. 172 is almost on all fours with the facts of this case. The amended survey plan which had been filed was the subject of controversy. In that case, two suits were consolidated. In the course of the trial, the Respondents? counsel sought to cross examine the Appellants’ witnesses on a previous survey plan which showed the boundarymen as the same as those shown on the Respondents plan. An objection was raised thereto by the Appellants’ counsel which objection was sustained by the trial Court. The Court held that the previous survey plans were not admissible in evidence at all since they had been amended by the Appellants. The trial Court also went further to expunge evidence already given by the said surveyor in relation to the said survey plans.
Onu JSC, delivering the Lead on page 183 of the Judgment held as follows:-
”As pleaded in paragraph 23 of the Respondent?s amended statement of defence, the Respondents manifested an intention to tender the plans only to discredit the evidence of the Appellants. This can legitimately be done by virtue of Section 198 of the Evidence Act LFN 1990 Cap 112. The Respondents did not seek to tender the previous three plans to define the issue to be tried but rather to highlight the inconsistencies in the Appellants case and also to impugn their veracity.”
Iguh JSC held at page 186 of the Judgment as follows:-
”The main issue that arises for consideration in this appeal is the wrongful exclusion of relevant evidence in a proceeding by a trial Court. The complaint is that the learned trial Judge denied the Respondents the opportunity of presenting their case fully before the Court by refusing to admit in evidence three survey plans Nos. LSU 5032 of the 10th January 1978, LSU 6646 of the 7th February, 1979 and LSU 7948 of 7th February, 1980, filled by the Appellants in the suit but were subsequently amended by the order of Court. It was the view of the trial Court that the said plans having been duly amended by the leave of Court no more existed and were no longer material before the Court. The contention of the Respondents is that if those three survey plans had been admitted in evidence, they would have thoroughly discredited the evidence of the Appellants on the important issue relating to boundarymen of the land in dispute. It was submitted that the Respondents were seriously prejudiced by the ruling of the learned trial Judge which not only rejected the plans in evidence but expunged from the records the evidence already elicited from the 3rd Appellant under cross-examination in respect of the said plans and also disallowed further questions relating to those plans during the trial.”
My Lord said further on Page 186-187:-
”There can be no doubt that once pleadings are duly amended by the order of Court, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried before the Court. See Warner v. Sampson (1959) 1 Q.B. 297. This, however, is as far as this proposition of law goes. It does not and has not laid down any such principle that an original pleading which has been duly amended by an order of Court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law established is that such original pleading which has been duly amended is no longer material before the Court in the sense that it no longer determines or defines the life issues to be tried before the Court. It is however totally immaterial in the determination of the issues to be tried in the proceedings. It thus cannot be considered as the basis of one’s case in any action. Nor may a Court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the suit. The issues to be tried will depend on the state of the final or amended pleadings. See Salami v. Oke (1987) 4 NWLR Pt. 63 Pg. 1 at Pg. 9 and 12 and Agbaisi and Ors v. Ebikorefe and others (1997) 4 NWLR Pt. 502 Pg. 630 at Pg. 647-649.”
My Lord concluded on page188:
”It seems to me that whilst the issues to be tried in a case will depend entirely on the state of the final pleadings, a party may nonetheless be cross-examined on any relevant issue with a view to impugning his evidence at the trial. I think the learned trial Judge was in error when, in effect, he ruled that the three plans in issue were no longer before the Court and could not therefore be used for whatever purpose. In my view, when the trial Court restrained the Respondents from cross-examining the 3rd Appellant or giving evidence relating to the three plans and, indeed, proceeded to expunge the evidence already elicited from the records in respect of those plans, it denied the respondent a fair hearing. In my opinion, the Court of appeal was quite right by allowing the respondents appeal on that ground and in setting aside the judgment and orders of the trial Court.”
The jurisprudence behind the above opinion in my humble view is that a party should not be allowed to get away with changing his story as the case proceeds. A process that is struck out has no more teeth and cannot be used by the party or adverse party as a general rule. However, it is still part of the process in the file. It cannot be wished away. The Court and the party who filed the struck out or amended process cannot use it to urge the case of the party; however the adverse party can use it to discredit the witness or the evidence of the party who filed it. It would amount to lack of fair hearing in our adversarial system of jurisprudence if the contradictory evidence already stated in writing which has been struck out cannot be allowed to be used to cross examine the witness who gave contradictory evidence.
A Counsel or any other person may reduce a person’s testimony in writing as his or her deposition, once the deposition is adopted at the hearing that constitutes the evidence of the witness.
The rules of Court require the witness Statement On Oath be sworn to before a Commissioner for Oaths. So the content of the evidence on oath is one for which a person who swears falsely can be charged with perjury.
Section 232 talks about a mere statement in writing (not necessarily sworn to) being used to test the veracity of a witness, how much more a sworn deposition which carries more weight than an ordinary statement in writing. To answer my initial questions, the witness statement on oath is in essence an affidavit which has been sworn to by the deponent. When it is frontloaded by a party as facts in proof of the pleading it becomes irrelevant when the pleading is amended whether the pleading were officially struck out or not. However the same irrelevant process in proof of a party?s case can be used to contradict the said party by the adverse party.
See also the decision of Agim J.C.A in JOHN AJIBO v. THE STATE (2013) LPELR-21359 (CA). So the process struck out cannot be useless for all purposes.
This issue must not be confused with the issue of an irregular affidavit or an irregular witness statement. That is another matter entirely. This Court had clarified this distinction in KALU IGU UDUMA V. PRINCE ARUA ARUNSI & 14 ORS (2010) LPELR-9133(CA) as follows:-
”I am minded to go a step further and to make a distinction between affidavit evidence in procedure begun by originating summons as against statement of witnesses on oath at an election proceeding or proceedings begun by writ and to say that in respect of the latter scenario, where the written statement is to be adopted again on oath by the maker before his cross-examination on it, whatever defect in the original oath in respect of the witness statement has been cured by the second oath made in Court before the Judex prior to the adoption of the witness statement by the maker and his subsequent cross-examination. See the case of UDEAGHA v. OMEGARA CA/PH/EPT/173/2008 unreported delivered on 30th March, 2010.”
The sole issue for determination is resolved in favour of the Appellant. The ruling of the learned trial Judge given on 20/3/17 in Suit No. HOZ/1/15 is set aside. The Appellant is allowed to cross-examine and tender the documents as requested. The suit is sent back to the Chief Judge of Ebonyi State to be tried before another Judge since no other witness has presumably been called at the trial Court in view of the relief sought before this Court. Appeal Allowed. No order as to costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege of reading in advance the lead judgment just delivered by my learned brother, the PJ., HELEN MORONKEJI OGUNWUMIJU JCA. I agree with the reasoning and conclusion reached therein, I also agree that the appeal succeeds and is allowed. I abide by the consequential orders made in the said lead judgment which include the one as to costs.
JOSEPH TINE TUR, J.C.A.: I agree
Appearances:
UCHE S. AWA with him, Y.A. OMENKA and A.L. ENEDUFor Appellant(s)
R.S. ANYEGORFor Respondent(s)
