CIVIL WEEK 11 TRIAL (1) TRIAL PREPARATION
FOR THE LOVE OF CHRIST JESUS; THE BEGINNING AND THE END
WEEK 11
TRIAL (1): TRIAL PREPARATION AND EVIDENCE.
:: CASE ANALYSIS/CASE THEORY: is the lawyer’s line of argument in support of his case after analysing the case.
:: TRIAL PLAN: how a counsel intends to prove or establish his case.
:: COMPETENCE AND COMPELLABILITY OF WITNESSES. A competent witness is fit and proper to testify in court. On the other hand, compellability is the obligation on a competent person to testify in court. Competent persons may yet be legally non-compellable. 175-178 EA, 184-196.
Section 175 Evidence Act assumes everyone is competent to testify except those who cannot understand questions posed to them or give rational answers to those questions because of tender years, extreme old age (R V Hill), disease of the mind or body, or any cause of the same kind.
Spouses may testify against each other in sex-related offences, offence against property, and domestic violence cases. They may also testify by consent or on an application by one spouse.
Dumb witnesses are competent if they meet the requirements in Section 175 above.
A lawyer may testify on uncontested matters and technicalities, the value of legal services he rendered to a client, and if his refusing to testify would injure the client’s case, but his testifying is unethical. Elabanjo V Tijani. Prohibition is a matter of ethics rather than competence.
Judges shall not testify in cases they preside over, but can testify in another proceeding about what happened in that case.
Non-Compellable persons include;
– President, Vice President, Governors and Deputy Governors shall not be sued, imprisoned, or compelled by any means to give evidence in court while holding office Global Excellence Ltd V Donald Duke. Section 308 (1) & (2) CFRN. Note however that they can be compelled to testify in election petition tribunal, sued civilly in personal tort and as nominal parties in criminal actions[1].
– Diplomats strictly on diplomatic missions and their families are non-compellable until they waive immunity (with the consent of their government) Section 1 (1) Diplomatic Immunities and Privileges Act. Servants of diplomats who are not Nigerian and their families are also non-compellable until the diplomat waives the immunity on them. Zabusky V Israel Aircraft Industries
Judges, lawyers, clerks, and interpreters cannot be compelled to testify.
Communications between lawyer and client are also protected (except such relates to the anticipatory commission of a crime, client consents, fees or defending himself).
Public officers cannot be compelled to disclose confidential or state security matters, but a judge may order them to disclose in his chambers Section 2 POPA.
Bankers cannot be compelled to produce their books in a case not involving their banks. Unless upon court order in special cases.
Communications during Marriage cannot be compelled from spouses except the spouse who made the communication consents or divorce proceedings have arisen between the spouses. A spouse cannot be compelled to admit adultery.
Children, Old and Infirm Persons are compellable once competent.
Witnesses may be compelled using a witness summons, warrant of arrest, or sub-poena (High Court).
Where a witness is wrongly compelled, the appeal court will expunge his evidence and determine the case on other proper evidence.
:: BURDEN AND STANDARD OF PROOF. 131-136 EA. Discussed in Criminal Litigation.
:: ADMISSIBILITY OF DOCUMENTARY EVIDENCE. S 90 EA 2011. Discussed in Criminal Litigation.
:: USE OF PRIMARY AND SECONDARY EVIDENCE. S 88 and 99 EA. Discussed in Criminal Litigation.
:: OPINION EVIDENCE AND EXPERT WITNESS. 67-76 EA 2011. An expert is one experienced in his field. Generally inadmissible unless relevant and desirable. On customary law (68). Further discussed in Criminal Litigation.
:: PROCEDURE FOR PRESENTATION OF PARTY’S CASE AT TRIAL.
The Plaintiff opens his case by calling his witnesses who will be examined, cross-wxamined and re-examined if need be and then closes his case. The Defendant then opens his case and goes through the same process. Section 215 EA.
[1] While they are in office, the limitation period countdown pauses.
