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HomeNewsMY ONE PENNY (15) EFFECT OF FAILURE TO CROSS EXAMINE A WITNESS...

MY ONE PENNY (15) EFFECT OF FAILURE TO CROSS EXAMINE A WITNESS ON MATERIAL POINTS BY OSEME PEREMENE ANTHONY, ESQ.

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By Oseme Peremene Anthony, Esq.

1. ISAH v. STATE (2017) LPELR-43472(SC)

_ – Effect of failure to cross-examine a witness on material point_

WADATA ISAH v. THE STATE, “What is the effect of failure to cross-examine a witness on a material point? Where a witness testifies on a material fact in controversy, in this case whether Hamidu Mohammed is dead, and whether it was the appellant who killed him, and the appellant if he does not accept the witness testimony as true should cross-examine him on that fact, or at least show that he does not accept the evidence as true. Where he fails to do either the Court can take his silence as acceptance that he does not dispute the fact.”, ISAH v. STATE

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2. TIJANI v. STATE

_ – Effect of failure of an adversary to cross-examine a witness_

IDRIS TIJANI v. THE STATE, “On failure to cross-examine a witness on a material point, the Supreme Court in OLA V. STATE (2018) LPELR-44983 (SC) held that: “Where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence.”
The Supreme Court also, in YUSUF & ANOR V. STATE (2019) LPELR-46945 (SC) held thus:
“The evidence of a witness which is not challenged or shaken by cross-examination, which evidence is not inadmissible by law, must be accepted as correct, I completely agree” See also, the cases of: DAHIRU V. STATE (2018) LPELR- 44497 (SC); SIMON V. STATE (2017) LPELR-41988 (SC); PATRICK V. STATE (2018) LPELR-43862 (SC); IFEDAYO V. STATE (2018) LPELR-44374 (SC); OLA V. STATE (2018) LPELR-44983 (SC); LANRE V. STATE (2018) LPELR-45156 (SC).”, TIJANI v. STATE

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3. IGHALO v. STATE (2016) LPELR-40840(SC)

_ – Effect of failure to cross-examine a witness on material point_

JOEL IGHALO v. THE STATE, “It is for the trial Court to decide what the effect of failure to cross-examine a witness on a particular matter has on its evidence in regard to such matter having regard to the circumstances of the case. Where an adversary fails to cross-examine a witness upon a particular matter, the implication that he accepts the truth of that matter as led in evidence. See: Oforiete v. State (2000) 12 NWLR (Pt. 681) 415.” , IGHALO v. STATE

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4. DAHIRU v. STATE (2018) LPELR-44497(SC)

_ – Effect of failure to cross-examine a witness on material point_

HALIRU DAHIRU v. THE STATE, “The effect of failure to cross-examine a witness upon a particular matter, this Court has repeatedly held, constitutes a tacit acceptance of the truth of the evidence of the witness. See Gaji & Or V. Paye (2003) LPELR-1300 (SC), Oforlete V. State (2000) 12 NWLR (Pt. 681) 415 at 435. And Anthony Okoro V. The State (2012) LPELR-7846 (SC).”, DAHIRU v. STATE

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5. GAJI & ORS v. PAYE (2003) LPELR-1300(SC)

_ – Effect of failure to cross-examine a witness on material point_

ISAAC GAJI & ORS v. EMMANUEL D. PAYE, “It has been said that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. Oforlete v. State (2000) 12 NWLR (Pt. 681) 415 at 436. In the case of Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325, (1988) 2 SCNJ 146, this court held that it is not proper for a defendant not to cross-examine a plaintiff’s witness on a material point and to call evidence on the matter after the plaintiff had closed his case.”, GAJI & ORS v. PAYE

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6. OFORLETE v. STATE (2000) LPELR-2270(SC)

_ – Effect of failure to cross-examine a witness on material point_

PATRICK OFORLETE v. THE STATE, “In Blackstone’s Criminal Practice, 1991, the effect of failure to cross-examine a witness upon a particular matter is stated to be a tacit acceptance of the truth of the witness’s evidence. The law was put thus, citing Hart (1932) 23 Cr App P.202 as authority:
“A party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict him or impeach his credit by calling other witnesses tacitly accepts the truth of the witness’s evidence-in-chief on that matter, and will not thereafter be entitled to invite the jury to disbelieve him in that regard. The proper course is to challenge the witness while he is in the witness-box or, at any rate, to make it plain to him at that stage that his evidence is not accepted.” A similar attitude to the effect of failure to cross-examine a witness is contained in the opinion of Iguh, JSC., in Broadline Enterprises Ltd v. Monterey Maritime Corporation & anor (1995) 9 NWLR(Pt.417) 1,27 when he said:
“I think the first point must be made for a better appreciation of their resolution that where evidence given by a party to any proceedings is not cross-examined upon or challenged by the opposite party who had the opportunity to do so, it is always open to the Court seized of the matter to act on such unchallenged evidence before it is established.”Isaac Omoregbe v. Daniel Lawani (1980) 3-4 SC108; 177; Odulaja v. Haddad (1973) 11 SC 357;Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81 and Adel Boshali v. Allied Commercial Exporters Ltd 1961) 2 SC NLR322; (1961) All NLR 917 …”, OFORLETE v. STATE

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7. EWUGBA v. STATE (2017) LPELR-43833(SC)

_ – Effect of failure to cross-examine a witness on material point_

RAPHAEL EWUGBA v. THE STATE, “Where a witness testifies on a material point in controversy, in this case that the identification parade was properly conducted, if the appellant does not accept the witness testimony as true, should cross-examine him on that fact, or at least show that he does not accept the evidence as true. Where he fails to do either as in this case the Court can take his silence as acceptance that he does not dispute the fact. In view of failure to cross-examine properly and highlight errors in the conduct of the identification parade, I am satisfied that the identification parade was properly conducted.”, EWUGBA v. STATE

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8. ALIYU v. STATE (2013) LPELR-20748(SC)

_ – Effect of failure to cross-examine a witness on material point_

MAIKUDI ALIYU v. THE STATE, “In any case, appellant’s Counsel did not cross- examine the witness who tendered the evidence of the identification parade. He is deemed to have accepted same as correct. See Alhaji Abdulai Baba v. Nigerian College of Civil Aviation Zaria (1991) 5 SCNJ 78 at 184.”, ALIYU v. STATE

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9. OLA v. STATE (2018) LPELR-44983(SC)

_ – Effect of failure to cross-examine a witness on material point_

SGT. KALEJAIYE OLA v. THE STATE, “This Court has held, in several cases, that where the adversary fails to cross-examine a witness on a particular matter, very adverse to him, he is deemed to accept the truth of that matter as led in evidence against him: AKINWUNMI v. IDOWU (1981)1 S.C. 101; GAJI & ORS v. PAYE (2003) 8 N.W.L.R. (Pt. 823) 583; EGWUMI v. THE STATE (2013) 13 N.W.L.R. (Pt. 1372) 525; OFORLETE v. THE STATE (2000) L.P.E.L.R.-2270 S.C. at 24-25.”, OLA v. STATE

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10. IFEDAYO v. STATE (2018) LPELR-44374(SC)

_ – Effect of failure to cross-examine a witness on material point_

AKINLO IFEDAYO v. THE STATE, “It is settled that when a witness testifies on a material fact in controversy in a case, the other Party, if he does not accept that it is true, should cross-examine him or at least show that he does not accept the evidence as true, and where he fails to do either, the Court can, and will take his silence as acceptance that he does not dispute same – see Simon V. State (2017) LPELR-41988 (SC) and Oforlete V. State (2000) 12 NWLR (Pt. 681) 515 SC, where Achike, JSC, said-
The noble art of cross-examination constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party.
It is, therefore, good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness, whose evidence is under fire.”, IFEDAYO v. STATE

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11. NWODO v. STATE (2018) LPELR-46335(SC)

_ – Effect of failure to cross-examine a witness on material point_

UCHE NWODO v. THE STATE, “It is important to note that PW1 was never cross-examined on what he said as to why the Appellant and DW1 were asked to take the deceased away from the first Hospital they took him to.
It is settled that when a witness testifies on a material fact, the other Party should cross-examine him or at least show he does not accept the evidence as true and where he fails to do so, the Court can, and will take his silence as acceptance that he does not dispute same – see Simon V. State (2017) LPELR-41988(SC).”, NWODO v. STATE

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12. EGWUMI v. STATE (2013) LPELR-20091(SC)

_ – Effect of failure to cross-examine a witness on material point_

EMMANUEL EGWUMI v. THE STATE, “It must be elementary now that when a witness testifies on a material fact in controversy (in this case whether the appellant is also called Nnaloka) the appellant who denies it should cross-examine the witness to show the contrary.
Where this is not done the court would be of liberty to take his silence as acceptance that he does not dispute the fact in the absence of cross-examination.”, EGWUMI v. STATE

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*13. GAJI & ORS v. PAYE *

_ – Effect of failure to cross-examine a witness on material point_

ISAAC GAJI & ORS v. EMMANUEL D. PAYE, “It has been said that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. Oforlete v. State (2000) 12 NWLR (Pt. 681) 415 at 436. In the case of Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325, (1988) 2 SCNJ 146, this court held that it is not proper for a defendant not to cross-examine a plaintiff’s witness on a material point and to call evidence on the matter after the plaintiff had closed his case.”, GAJI & ORS v. PAYE

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14. BABALOLA & ORS v. STATE (1989) LPELR-695(SC)

_ – Effect of failure to cross-examine a witness on material point_

OLUFEMI BABALOLA & ORS v. THE STATE, “On principle, where a witness called by the prosecution gives relevant and material evidence, counsel for an accused has a duty to cross-examine on it or at least indicate that he does not accept it as true. See on this the case of Walter Berkley Hart (1932) 23 C.A.R. 212 at 207; Brown v. Dunn, 6R. 67, 76-7, H.L. 4. If he fails do so, then, unless the evidence itself is inadmissible, illegal, or not worthy of belief, particularly where the defence does not produce another piece of evidence which renders the particular evidence in question improbable, then a court of trial is entitled to accept such evidence as true.”, BABALOLA & ORS v. STATE

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15. DIKE & ORS v. ADUBA & ANOR (2016) LPELR-41035(CA)

_ – Effect of failure to cross-examine a witness on material point_

L.O. DIKE & ORS v. DR. OSITA ADUBA & ANOR, “In Gaji V. Paye (2003) 5 SC 53 the Supreme Court Per Edozie JSC held that “the failure to cross examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness.” See also Amayo V. Erinmwingbovo (2006) 5 SC (Pt1) 1.”, DIKE & ORS v. ADUBA & ANOR

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16. PASCUTTO v. ADECENTRO (NIG) LTD (1997) LPELR-2904(SC)

_ – Effect of failure to cross-examine a witness on material point_

G. S. PASCUTTO v. ADECENTRO NIGERIA LIMITED, “In any civil proceedings where a party’s evidence is not challenged by cross-examination, that evidence, unless there are compelling legal or procedural reasons for rejection, must be admitted as the truth. The respondent’s evidence as plaintiff, entirely based on his averments in the statement of claim, was not challenged in cross-examination. As civil matters in our High Courts are based on pleadings and evidence in support, parties must be up to the task in cross-examination on issues arising in examination-in-chief. Whereas in criminal matters, defence may refuse to cross-examine but may come with devastating evidence to discredit the prosecution’s case. it is different in civil matters because of the procedural differences. [Omeregbe v. Daniel Lawani (1980) 34 S.C.108, 117; Boshali v. Allied Commercial Exporters Ltd. (1961) 1 All NLR 917; (1961) 2 SCNLR 322].”, PASCUTTO v. ADECENTRO (NIG) LTD

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17. AMADI v. NWOSU (1992) LPELR-442(SC)

_ – Effect of failure to cross-examine a witness on material point_

ADAKU AMADI v. EDWARD N. NWOSU, “It is a settled principle of law that where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross-examine him on that fact, or at least show that he does not accept the evidence as true, where, as in this case, he fails to do either, a court can take his silence as an acceptance that the party does not dispute the facts. After all, one of the main purposes of cross-examination is to test the veracity of a witness. See Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802.” , AMADI v. NWOSU

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*18. DUNKWU v. OAR (NIG) LTD *

_ – Effect of failure to cross-examine a witness on material point_

CAPTAIN L. DUNKWU (RTD.) v. OAR NIGERIA LIMITED, “The surprising aspect of the Appellant’s testimony is that he was not cross-examined on the specific claims made against the Respondent in the Appellant’s counter-claim. The settled position of the Law is that the failure to cross-examine a party on a material issue is taken as a tacit acceptance of the issue. See the apex Court in the case of GAJI & ORS vs. PAYE (2003) LPELR-1300 (SC), where the apex Court per EDOZIE, JSC (OBM) had this to say on the subject:
“It has been said that the effect of failure to cross-examine a witness upon a particular matter is a tacit
acceptance of the truth of the evidence of the witness. Oforlete v. State (2000) 12 NWLR (Pt. 681) 415 at 436. In the case of Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325, (1988) 2 SCNJ 146, this Court held that it is not proper for a defendant not to cross-examine a plaintiff’s witness on a material point and to call evidence on the matter after the plaintiff had closed his case.”, DUNKWU v. OAR (NIG) LTD

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19. CAMEROON AIRLINES v. OTUTUIZU (2011) LPELR-827(SC)

_ – Effect of failure to cross-examine a witness on material point_

CAMEROON AIRLINES v. MR. MIKE E. OTUTUIZU, “The position of the Law is well settled that where a party testifies on a material point, in this case, the loss of $20,000, the appellant ought to cross-examine him, or show that his testimony is untrue. Where, as in this case neither was done, the court would readily conclude that the adverse party, in this case the appellant does not dispute the fact.”, CAMEROON AIRLINES v. OTUTUIZU

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20. PATRICK v. STATE (2018) LPELR-43862(SC)

_ – Effect of failure to cross-examine a witness on material point_

BAMIDELE PATRICK v. THE STATE, “I reproduced the full statement of PW4 in the said Exhibit A10, and it is clear that after the statement, which the Appellant highlighted, PW4 went on to narrate how the Appellant beat the deceased later. She was not cross-examined by learned counsel for the Appellant as to the fact in issue – whether or not he had assaulted the deceased.
As Rhodes-Vivour, JSC, observed in the case of Simon v. State (2017) LPELR-41988 (SC), when a witness testifies on a material fact in controversy in the case, the other Party, if he does not accept the witness testimony as true, should cross-examine him on that fact or at least show that he does not accept the evidence as true. Where, as in this case, he fails to do either, the Court can take his silence as an acceptance that the Party does not dispute the fact. In this case, the defence counsel did not cross-examine PW4 on the material fact as to whether the Appellant came there to beat the deceased later.”, PATRICK v. STATE

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