- What is a witness statement?
In every civil action, after the preliminary proceedings have been dealt with and all the rules complied with, the parties shall make an application for direction to the court subject to Order 32 of CI 47 (apart from those excluded by the rules) to enable it co.
The High Court (Civil Procedure) (Amendment ) Rules, 2014 (CI 87) stipulates that a fact to be proved at the trial of an action by the evidence of the witnesses shall be proved by a trial of their oral evidence given in court. This is however subject to the Constitution, the Evidence Act, 1975 (NRCD 323) as well as any other enactment to the contrary. This is the general rule of evidence during proceedings at trial in a civil suit.
CI 87 enables a witness to give evidence through a video link or by any other means. However, it should be noted that there is requirement to serve witness statements for use at trial provided for by CI 87. This witness statement is defined by the rules to be a statement, signed by a person, which contains the evidence which that person would be allowed to give orally at the trial.
It is important that every detail of the witness statement is true and accurate as the witness writing that statement will be cross-examined on its contents. Moreover, there is a statement of truth at the end of a witness statement; to the effect that the witness believes the facts in the witness statement are true and accurate.
The person whose evidence is put in a witness statement may either be the party himself or a witness for a party. According to section 58 of the Evidence Act, 1975 every person including a child, is competent to be a witness and no person is disqualified from testifying to any matter. The exceptions to the above is that a person is not qualified to be a witness if he is incapable of expressing himself so as to be understood, either directly or through interpretation by one who can understand him or incapable of understanding the duty of a witness to tell the truth.
The rules governing the use of witness statements are provided for by the High Court Civil Procedure Amendment Rules 2014 (CI 87) and these rules will be discussed in the next few paragraphs in addition to raisin an objection to a Witness Statement correctly.
Rule 3B(2) of the rules indicates that at the applications for directions stage, the court shall order a party to file and serve on the other parties any witness statement of the oral evidence, which the party serving the statement intends to rely on in relation to any issues of fact to be decided on at trial. This means that whatever evidence that the parties anticipate they will be relying on must be put in the statement and served on the other parties. This enables the other parties to know exactly what to expect at the trial. Just as pleadings are served on the parties with the intent of avoiding surprise for the other parties, so is the witness statement aimed at giving the other parties notice of the evidence to be adduced and also to save time in the adjudication process. In this case the opponent has ample time to examine and identify the areas where the witness would be subjected to cross-examination. This process of filing the witness statement also gives the court adequate time to get all the necessary authorities that will inform their decision at the end of the trial.
There are consequences for failure to serve a witness statement within the stipulated time. The effect of such failure is that the witness in question will not be called to give oral evidence unless the court grants leave. When this happens there is a risk of not getting certain important information or evidence to advance a party’s case. Such evidence will eventually end up being excluded and the court’s decision will not be a reflection of all the information available.
Rule 3E of the rules points out the use of the witness statement at the trial. It stipulates that the witness statement shall be deemed as the evidence-in-chief of the witness unless the court otherwise orders.
- Raising objections to a Witness Statement
A party may pray the court to exclude evidence on grounds of inadmissibility for various reasons such as evidence being hearsay or self-serving .
It is worth noting though, that Rule 3E stipulates that a witness giving oral evidence at trial may with the permission of the court give evidence in relation to any new matter which has arisen since the witness statement was served on the other parties. This rule seems to have some semblance to Order 11 Rule 9 of CI 47 which provides that a party may in any pleading plead any matter which has arisen at any time, whether before or after the issue of the writ. It is apparent that the court will not restrict parties from raising new evidence or facts if there is reason to believe that these will aid the court in arriving at a fair decision. These two rules are distinct even though they serve the same intent and purpose; to allow for a fair determination of a case. This seems to be the case even in dealing with affidavits such that in the case of The Republic v High Court, Cape Coast; ex parte Korte [1999-2000] GLR the Supreme Court held that the Court was bound to consider a supplementary affidavit in order to be able to determine an application that was before it. Importing this same argument to the filing of pleadings as well as witness statements which is the subject matter of this discussion, it is expedient that the courts do not disregard evidence as well as facts in relation to new matters that may have arisen since those documents were served.
One must however not be oblivious to the fact that where the supplementary evidence being given at the trial seems to be inconsistent with the evidence in the witness statement, the opponent may raise an objection under Section 6 of the Evidence Act, 1975 (NRCD 323) as to the admissibility of such evidence. Even where the opponent raises no objection, the court may on its own motion, by relying on Section 8 of NRCD 323 exclude that evidence. In any event, Rule 3F of the Rules affords the opponent the opportunity to cross-examine a witness on the statement of that witness whether or not the statement or any part of it was referred to during the evidence in chief of that witness so that by section 75 of NRCD 323, in examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the trial, it is not necessary to disclose to him any information concerning the statement or other conduct. Usually what this implies is that in the closing address, the opponent can convince the court to exclude such evidence.
If evidence which could have been excluded is not objected to and it is entered as evidence, the court would be obliged to consider that evidence in making a determination of the matter.
To avoid such a situation, it is incumbent on parties to a suit to be vigilant and watchful and object to the admissibility of evidence where necessary.
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