Examination of Witnesses in Nigeria: Examination-in-Chief, Cross-Examination and Re-Examination

The moment a witness enters the witness box in a Nigerian court, a structured process begins. There are three stages: the party who called the witness examines them first, then the opposing party cross-examines them, and then the calling party may re-examine. Each stage has its own rules, its own permitted questions, and its own strategic purpose. Counsel who do not understand these rules make mistakes that can ruin cases. Counsel who master them can reshape the entire trajectory of a trial.

This article explains each stage of witness examination, the rules that govern questions at each stage, the treatment of hostile witnesses, the use of previous statements, and the constitutional dimension that runs through all of them.

The Three Stages of Witness Examination

The three stages follow in strict sequence. The order is not a procedural courtesy. It reflects the adversarial system’s structure for testing evidence.

Examination-in-Chief: The party who called the witness conducts the first examination. The purpose is to elicit the witness’s evidence in support of the calling party’s case. The witness tells their story in response to questions from the counsel who called them.

Cross-Examination: The opposing party then examines the same witness. The purpose is to test the witness’s evidence, challenge their credibility, and elicit evidence that supports the cross-examiner’s case.

Re-Examination: The party who called the witness may then examine them again, but only on matters arising from the cross-examination. The purpose is to explain or repair damage done to the witness’s evidence during cross-examination.

The constitutional foundation of this process is section 36(6)(d) of the 1999 Constitution, which guarantees that every accused person is entitled to examine the witnesses called by the prosecution. Cross-examination is not merely a procedural right. It is a constitutional one. A criminal trial that denies the accused the opportunity to cross-examine prosecution witnesses is constitutionally defective.

Examination-in-Chief

Examination-in-chief is the first questioning of a witness by the party who called them. The basic rules are designed to ensure that the evidence produced is genuinely the witness’s own, not the product of prompting or suggestion.

No Leading Questions in Examination-in-Chief

The most important rule is that leading questions are generally not permitted in examination-in-chief. Section 221 of the Evidence Act 2011 defines a leading question as one which suggests to the witness the answer which the examiner wishes or expects to receive, or which assumes the existence of a disputed fact.

The rationale is obvious. If counsel can simply suggest the desired answer to their own witness, the evidence produced is counsel’s suggestion dressed as the witness’s testimony. That is not independent evidence.

There are exceptions. Leading questions are permitted for introductory or undisputed matters. If the defendant’s name, occupation, and address are not in dispute, counsel may lead the witness through them quickly: “You are Emeka Obi, you work as an accountant in Lagos?” These are not dangerous leading questions because they elicit no contested evidence. In R v Baldwin,¹ the court confirmed that the permissibility of leading questions on introductory matters is well established.

Leading questions may also be permitted where the court gives leave to treat a witness as hostile. We examine hostile witnesses separately below.

Memory-Refreshing Documents

A witness may refresh their memory while giving evidence by referring to a document that was made when the facts were fresh in their mind. Section 239 of the Evidence Act 2011 allows a witness to refer to such a document while giving evidence, provided the document was made or verified by the witness when the facts recorded were fresh in their memory.

The opposing party has the right to inspect any document used by a witness to refresh memory, and may cross-examine the witness on any part of it. In R v Richardson,² the court held that where a witness uses a document to refresh memory, the cross-examiner may refer to the entire document, not merely the portions used. This inspection right is important: by examining the full document, the cross-examiner may identify inconsistencies between the document and the witness’s oral evidence that do not appear from the portion used to refresh.

One point worth noting is the difference between refreshing memory and reading from a document as if it were testimony. A witness who simply reads out the contents of a statement is not giving oral testimony in the proper sense. The document refreshes, not replaces, the witness’s independent recollection.

Cross-Examination

Cross-examination is the opposing party’s opportunity to test the witness’s evidence and to elicit evidence favourable to the cross-examiner’s case. It is the primary tool for challenging the truth and accuracy of testimony, and its importance cannot be overstated.

Leading Questions Are Permitted

Unlike examination-in-chief, leading questions are fully permitted in cross-examination. The cross-examiner can put propositions directly to the witness: “You did not actually see the accused that night, did you?” This is appropriate because the witness being cross-examined is not the cross-examiner’s witness, and the risk of suggestion applies differently.

The Scope of Cross-Examination

Section 214 of the Evidence Act 2011 defines the scope of cross-examination broadly. A witness may be cross-examined on any matter relevant to the proceedings, and may also be asked questions tending to shake their credit by injuring their character. Cross-examination therefore extends beyond the topics covered in examination-in-chief. For a detailed treatment of relevancy, admissibility, and the distinction between issues going to the merits and issues going to credibility, that article should be consulted alongside this one.

However, the breadth of cross-examination has limits. A cross-examiner who asks a question that goes to character or credit must generally accept the witness’s answer and cannot call contradicting evidence merely to attack the witness’s credit on a collateral matter. This is the collateral issue rule: the answer to a collateral question is final.

Putting the Opposing Case: The Rule in Browne v Dunn

One of the most important rules of cross-examination is the requirement to put your case to the witness. If the cross-examiner intends to argue at the end of the case that the witness is lying, or that the facts they described did not happen, that challenge must be put to the witness during cross-examination. A party cannot argue at judgment that a witness was mistaken or lying if the witness was never given the opportunity to respond to that allegation.

In Eze v Obiefuna,³ the court held that failure to put a material aspect of the opposing case to the witness may be taken as acceptance of that aspect of the witness’s evidence. In Browne v Dunn⁴ itself, the House of Lords stated the rule with precision: it is a rule of professional conduct and of fairness to the witness, not merely a procedural technicality.

The practical effect is severe. A party who fails to put a specific allegation to a witness during cross-examination will find the court treating the unchallenged evidence as accepted. Counsel cannot argue at closing that a witness fabricated a particular detail if counsel never put that allegation to the witness and gave them the opportunity to deny or explain it. Nigerian courts have applied this rule consistently: see Eze v Obiefuna and the body of Supreme Court authority on the duty to cross-examine on material points.

There are limits to the rule. It does not require counsel to put every conceivable challenge to every witness on every detail. The obligation arises on material matters: the factual allegations that, if accepted, would affect the outcome of the case. Counsel must put those. Minor or peripheral details where no real issue is being raised do not trigger the same obligation.

Previous Inconsistent Statements: Section 232

One of the most powerful cross-examination tools is the ability to confront a witness with a previous statement inconsistent with their current evidence. Section 232 of the Evidence Act 2011 allows a cross-examiner to draw the attention of a witness to their previous statement and ask them to explain the inconsistency.

Before putting a written previous statement to a witness, the cross-examiner must inform the witness of the parts of the statement to be used. If the witness admits making the inconsistent statement, that admission may be used to undermine the credibility of their current evidence. If the witness denies it, proof of the prior statement may be given. The treatment of admissions in Nigerian evidence law and confessions under the Evidence Act should be read alongside this section where the prior statement amounts to an admission or confession.

A critical point that is frequently misunderstood: the previous inconsistent statement does not become substantive evidence of the facts it contains. It is evidence of the inconsistency, which goes to the witness’s credibility. It does not prove the truth of whatever was said in the earlier statement. This distinction connects to the treatment of hearsay evidence in Nigerian law: a prior out-of-court statement, even one made by the witness themselves, is hearsay if tendered to prove the truth of its contents.

Finality of Answers on Collateral Issues

Where a cross-examiner asks a question on a matter that is collateral to the main issues, the cross-examiner must accept the witness’s answer. They cannot call other witnesses to contradict the answer given on the collateral matter. This rule prevents cross-examination from becoming an elaborate attack on the witness’s character through a series of collateral issues.

The exceptions to the finality rule are important. A cross-examiner may contradict a witness on collateral matters in three situations: to prove the witness has been convicted of an offence under section 233, to prove a prior inconsistent statement under section 232, and where the witness has denied a specific allegation going to their credibility as a witness.

The Privilege Against Self-Incrimination in Cross-Examination

A witness who is in the box as a competent and compellable third-party witness may nevertheless refuse to answer a specific cross-examination question if the answer would tend to incriminate them. Section 183 of the Evidence Act 2011 protects any witness from being compelled to answer questions whose answers would expose them to a criminal charge. The court must be satisfied that the risk is real, not speculative.

Where the accused has chosen to testify under section 180, however, the position is different. Section 183 provides that the accused who testifies may be asked, and is bound to answer, questions in cross-examination that tend to incriminate them as to the offence charged. Having entered the witness box voluntarily, the accused cannot selectively rely on section 183 to avoid questions about the offence for which they are on trial. The privilege in that context is limited: it applies to other offences not charged, not to the charge before the court.

Cross-Examination in Sexual Offence Cases

Nigerian courts have recognised that cross-examination in sexual offence cases requires particular care. Questions about the sexual history of a complainant that are irrelevant to the issues in the case, or that serve only to humiliate or discredit the complainant on impermissible grounds, should be refused. The court retains a discretion to disallow questions that are indecent or scandalous under section 226 of the Evidence Act, or that are intended to insult or annoy under section 227. These provisions are most directly engaged in sexual offence prosecutions where defence counsel may seek to cross-examine the complainant about prior sexual conduct.

Hostile Witnesses: Section 230

A hostile witness is a witness who gives evidence materially unfavourable to the party who called them. Section 230 of the Evidence Act 2011 allows the party who called such a witness to apply to the court to have them declared hostile. If the court so declares, the calling party may cross-examine their own witness.

The distinction between a hostile witness and an unfavourable witness matters. An unfavourable witness is one who gives evidence that does not help the party who called them but who is not giving deliberately false evidence. A hostile witness is one who is not merely unhelpful but who appears to be giving evidence motivated by an adverse will toward the calling party.

In Adeyemi v The State,⁵ the court held that what makes a witness hostile is the state of their mind, not just the content of their evidence. A witness who gives an honest but unhelpful account is unfavourable. A witness who gives false evidence against the party who called them may be hostile.

The significance of a hostile witness declaration is that the calling party may then cross-examine their own witness, including putting previous inconsistent statements to them. However, the fact that a witness is declared hostile does not make their evidence worthless. The court evaluates it alongside all other evidence. In Okonkwo v The State,⁶ the court held that the evidence of a hostile witness can still be acted upon to the extent the court finds it reliable.

A point worth noting: the previous inconsistent statement used to impeach a hostile witness under section 230 does not become substantive evidence of the facts stated in it. As with any previous inconsistent statement, it is evidence of inconsistency going to credibility, not proof of the truth of the earlier version. Counsel who treat the prior statement as if it proves its own contents have misunderstood its evidential effect.

Re-Examination

Re-examination is the calling party’s opportunity to question the witness again, but only on matters arising out of the cross-examination. Section 218 of the Evidence Act 2011 governs re-examination.

New matters cannot be introduced in re-examination unless the court gives leave. The purpose is strictly to allow the calling party to explain or clarify evidence that was damaged or left ambiguous during cross-examination.

Leading questions are not permitted in re-examination on the same basis as in examination-in-chief.

The strategic purpose of re-examination is often underestimated. A witness whose evidence has been damaged in cross-examination can be rehabilitated in re-examination. Counsel who fails to use re-examination when needed, or who fails to confine it to matters arising from cross-examination, wastes an important opportunity.

Examination of Witnesses by the Court

Section 211 of the Evidence Act 2011 permits the court to ask any witness any question in any form at any time. The court is not limited to the questions asked by counsel. A judge may ask questions to clarify evidence, to fill gaps, or to test the reliability of a witness. However, the court’s questioning should assist in the eliciting of truth, not serve the interests of one party over another. Excessive judicial intervention that appears to favour one side risks violating the fair hearing guarantee.

The limit on judicial questioning connects to the broader principle that a judge must not descend into the arena. A judge who, through persistent questioning of a particular witness, appears to be building one party’s case has stepped outside the judicial role. In Isiyaku Mohammed v Kano Native Authority,⁷ the Supreme Court held that the test of fair hearing is whether a reasonable observer would conclude that justice was done. A court that questions witnesses in a manner suggesting partiality fails that test.

The Constitutional Dimension

Section 36(6)(d) of the 1999 Constitution is the constitutional anchor of all examination of witnesses rules. It guarantees that every person charged with a criminal offence is entitled to examine witnesses called by the prosecution.

This constitutional right means that the cross-examination opportunity cannot be denied or substantially curtailed without constitutional consequence. A court that prevents or severely limits cross-examination of a prosecution witness, without proper legal basis, has violated the accused’s constitutional right.

In Gwonto v The State,⁸ the Court of Appeal held that non-compliance with the constitutional guarantees of fair hearing is a fundamental defect that cannot be saved by any other provision of law. Applied to examination of witnesses, this means that a denial of the right to cross-examine a witness is not merely a procedural error. It is a constitutional violation that can render the conviction unsafe.

Section 36(11), which provides that no person tried for a criminal offence shall be compelled to give evidence at trial, is engaged when a court puts improper pressure on an accused who has chosen not to testify. The constitutional dimension of burden and standard of proof — that the prosecution must prove its case and cannot shift that burden to the accused — is directly connected to these witness examination rules.

A Quick Reference Table

Key Cases

Eze v Obiefuna (1997) 1 NWLR (Pt. 480) 214 The court held that failure to put a material aspect of the opposing case to a witness during cross-examination amounts to acceptance of that evidence. The rule in Browne v Dunn was applied.

Adeyemi v The State (1991) 6 NWLR (Pt. 195) 1 SC The Supreme Court held that what makes a witness hostile is the state of their mind toward the calling party, not merely the unhelpful content of their evidence.

Okonkwo v The State The court held that the evidence of a witness declared hostile can still be acted upon to the extent the court finds it reliable. A hostile declaration does not automatically make the evidence worthless.

Gwonto v The State (1982) NCLR 312 The Court of Appeal held that non-compliance with the constitutional guarantees of fair hearing is a fundamental defect not curable by any other provision of law. Denial of the right to cross-examine is a constitutional violation.

Browne v Dunn (1893) 6 R 67 HL The foundational English authority on the obligation to put your case to the witness. Nigerian courts have adopted and applied this rule consistently.

Isiyaku Mohammed v Kano Native Authority (1968) 1 All NLR 424 The Supreme Court held that the test of fair hearing is the impression of a reasonable observer of the trial. Applies to judicial questioning that appears to favour one side.

R v Richardson (1971) 2 QB 484 Where a witness uses a document to refresh memory, the cross-examiner has the right to inspect the entire document and cross-examine on any part of it.

Problem Question Framework

When a problem question involves the examination of witnesses, apply this framework.

First, identify which stage of examination is involved. Is it examination-in-chief, cross-examination, or re-examination? Apply the specific rules for that stage.

Second, if a question is challenged as a leading question, determine whether it is permitted. In examination-in-chief, leading questions are not permitted except for introductory or uncontested matters. In cross-examination, they are fully permitted.

Third, if a party wants to confront a witness with a previous statement, apply section 232. Was the prior statement written? Was the witness’s attention drawn to it? Did the witness admit or deny making it? Identify clearly that the prior statement goes to credibility only, not to the truth of its contents.

Fourth, if a witness gives unfavourable evidence to the calling party, determine whether a hostile witness application is appropriate. Was the witness merely unhelpful or was there evidence of an adverse will? If hostile, can previous inconsistent statements be used? And again, what is the evidential effect of those statements?

Fifth, check whether section 183 self-incrimination privilege is engaged during cross-examination. Can a third-party witness refuse a specific question? If the accused has chosen to testify, can they invoke section 183 to avoid questions on the charged offence? The answer is no.

Sixth, check whether the rule in Browne v Dunn is engaged. Has the cross-examiner put the opposing case to every witness on every material matter? If not, the court may treat any unchallenged evidence as accepted.

Seventh, engage the constitutional dimension. In criminal proceedings, has the accused been given a full and fair opportunity to cross-examine prosecution witnesses? If any curtailment of cross-examination is apparent, engage section 36(6)(d) of the 1999 Constitution.

Common Student Mistakes

The first mistake is thinking leading questions are always prohibited. They are prohibited in examination-in-chief on contested matters. They are fully permitted in cross-examination.

The second mistake is treating a hostile witness declaration as making the witness’s evidence worthless. The court can still act on evidence from a hostile witness to the extent it finds it reliable.

The third mistake is treating a previous inconsistent statement as substantive proof of the facts it contains. It is not. It is evidence of the witness’s inconsistency, going to credibility only. This applies whether the statement is used under section 232 against any witness or to impeach a hostile witness under section 230.

The fourth mistake is forgetting that re-examination is limited to matters arising from cross-examination. New topics cannot be introduced in re-examination without leave of court.

The fifth mistake is ignoring the rule in Browne v Dunn. Students who advise a client that they can argue at judgment that a witness was lying, without having put that allegation to the witness during cross-examination, are ignoring one of the most practically important rules of witness examination.

The sixth mistake is treating the right to cross-examine as a procedural technicality. It is a constitutional right under section 36(6)(d) of the 1999 Constitution. Its violation is a fundamental defect, not a mere irregularity.

The seventh mistake is overlooking section 183 in cross-examination contexts. The self-incrimination privilege belongs to any witness, not only the accused. A third-party witness who is asked an incriminating question in cross-examination may invoke section 183, and the court must assess whether the risk of incrimination is genuine.

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Footnotes

¹ R v Baldwin (1925) 18 CAR 175.

² R v Richardson (1971) 2 QB 484.

³ Eze v Obiefuna (1997) 1 NWLR (Pt. 480) 214.

⁴ Browne v Dunn (1893) 6 R 67 HL.

⁵ Adeyemi v The State (1991) 6 NWLR (Pt. 195) 1 SC.

⁶ Okonkwo v The State (unreported, cited in Faculty of Law materials University of Ibadan 2021).

⁷ Isiyaku Mohammed v Kano Native Authority (1968) 1 All NLR 424.

⁸ Gwonto v The State (1982) NCLR 312 (Court of Appeal).