Cross Examination is an art, but not a licence to ask any random questions

 

 

Hi everyone! I only wished to make this post as a guide, a sort of warning while asking cross examination questions in court. More often than not, lawyers are always willing to pick out a lying witness. Afterall, it is part of the duty of counsel to discredit a witness, especially one that's telling lies. In carrying out this duty however, the lawyer has to be smart and avoid getting in trouble.
Questions that tend to give credence to the case of the other party ought not be asked at all. It may sound a bit elementary, but I just came across one. I've been reviewing this judgment for a few hours now, trying to untie something in it. So I came across the question a defence lawyer asked an eyewitness to the crime as follows: "was the 3rd Defendant armed or not when he came looking for the deceased"? Now, the question the 'smart' lawyer asked may seem innocuous, but it ended up ruining the whole case built up by the defendant.
In that case, the Defendant had relied on the defence or alibi - he simply was not at the scene of the crime at all. However, in seeking to discredit the witness, the Defendant's counsel ended up placing the defendant right in the scene of the crime! The answer to the question would have, at least to any audience, shown that the defendant was at the scene of the crime. It was just whether he was armed or not. At this point, it would also be wrong for counsel to decide to chose which part of the cross examination he wanted, and which part he does not. In the case of RIMDAN V. LAR, the Court held as follows

A counsel is not allowed to pick and choose from relevant answer to his questions in cross-examination. In the instant case, the counsel to the appellant asked one question too many and got answers he never bargained for which indeed knocked the bottom off his case. He would not be heard to say that the answers given by the DW7 to his questions under cross-examination were not pleaded and therefore inadmissible. There is no basis for remotely suggesting that DW7's answers under cross-examination ought to have been pleaded before admitting them in evidence as they emanated from cross-examination unchallenged.

What do you think?

Can you serve hearing notice by electronic means?

COMPACT MANIFOLD & ENERGY SERVICES LTD v. PAZAN SERVICES NIG. LTD

(2019) LPELR-49221(SC)

Principle

PRACTICE AND PROCEDURE - HEARING NOTICE

- Whether hearing notice can be served by electronic means

"May I dwell on the issue of hearing notice that was allegedly not served on the appellant as amounting to denial of fair hearing. It is however the mode of service that is being challenged by the appellant's learned counsel in this appeal to have denied him fair hearing. Failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the Court would have no jurisdiction to entertain it. Hearing notice is a document or information that emanates from the registry of a Court, giving legal notification to parties in a suit the dates on which the suit would be heard. Once a party or his counsel is served hearing notice they are both deemed to have actual knowledge of the date the suit would be heard, and if such a party decides to stay away from Court he does so at his own peril. See Per RHODES-VIVOUR, JSC in DARMA v. ECOBANK (2017) LPELR-41663 (SC), Nevertheless, it is on record that the appellant was served or informed of the hearing date of 15/3/2016 via SMS. The Evidence Act has now taken notice of the technology age we are in that electronic evidence is now admissible. This was ably tackled by my learned brother, per PETER-ODILI, JSC in ENL CONSORTIUM LTD. V. SHAMBILAT SHELTER (NIG.) LTD. (2018) LPELR- 43902 (SC), when he pungently and right held: "The point has to be made that the phone call mode of service would ordinarily be of good service so long as the party is provided the notice at least 48 hours before the scheduled Court date. The regularity of service is no longer jettisoned because it was made electronically as the current rules of Court have ensured. See Order 2 Rule 4(c) of the Court of Appeal, 2013 rules." The lower Court in this case reported as COMPACT MANIFOLD & ENERGY SERVICES LTD V. PAZAN SERVICES (NIG.) LTD. (2017) LPELR-41913 (CA), Per NIMPAR, JCA, observed and I adopt and agree with him as a solid legal foundation for electronic service of hearing notice and other legal processes thus: "The essence of a hearing notice is to bring to the notice of the party that his matter will come on the date named in the notice of hearing. Can the notice be effected by other means of notification? The answer is in the affirmative. When the rules use the words hearing notice, it did not specify that it must be hardcopy. Was the judge wrong to use the electronic method of informing parties about the date of hearing? I pause here to say this is the 21st century and technology is ruling every aspect of human endeavour and therefore even Courts must be abreast of these technological advancement and be ready to absorb the aspects that will enhance the quality of justice and aid speedy determination of cases. The Courts have also moved on in that regard. Indeed, electronic service has taken root in the Nigerian legal system and it would be strange for anybody to frown at being served electronically. See CONTINENTAL SALES LTD. V. R. SHIPPING INC (2012) LPELR- 7905 (CA). I am of the view that the Court below was in order by directing that the appellant should be informed by text. The Court as a discretion to direct the notification in a particular way. Issuance of a hard copy hearing notice is not a requirement of law and failure to issue and serve same cannot offend the rule of fair hearing. See MIRCHANDANI V. PINHEIRO (2001) 3 NWLR (Pt. 701) 552 @ 573. wherein the Court held: "It is not in all cases that the absence of it will automatically vitiate trials in the context of Section 36 of the 1999 Constitution. A hearing Notice is not therefore a mandatory judicial process that must be issued and served in all cases. The requirement is a rule of the Court not a statutory requirement. Rules of Court are to aid the Court in adjudication of cases. It is not to arm-twist the Court into becoming a robot." Per UWANI MUSA ABBA AJI, JSC (Pp 29 - 32 Paras B - E)

 

Objection on Territorial Jurisdiction - What the Defendant must prove.

 The position of the law has always been that he who asserts must prove. The usual

SAINT GOBAIN PAM S. A. v. INTERNATIONAL CONSULTANTS INCORPORATED

(2015) LPELR-24663(CA)

Principle

JURISDICTION - TERRITORIAL JURISDICTION

- Duty on a defendant who contends the territorial jurisdiction of a Court in an action founded on contract

"A defendant who contends that the forum of the trial Court is not convenient for the determination of the issue raised on the writ of Summons must show: (a) That the defendant does not reside in or carry out business within the geographical area of the Court: (b) That the cause of action did not arise within the geographical area of the Court and; (c) That the contract is not to be performed within the geographical area of the Court. The onus is on the defendant to establish all these; Arjay Limited v. Airline Management Support Ltd (supra)." Per ONYEKACHI AJA OTISI, JCA (Pp 60 - 60 Paras A - C)