In the Nigerian justice system, witnesses play a crucial role in helping the court uncover the truth of any disputed fact. Ordinarily, a party calling a witness expects that the witness will support their case. However, situations may arise where a witness departs from earlier statements, becomes uncooperative, or even appears to support the opposing party. In such circumstances, our laws, particularly the Evidence Act, provides a simple remedy: the witness may be treated as a hostile witness.
In this article we will discuss comprehensively and explain the concept of hostile witnesses in Nigerian courts in the light of what they are, the legal basis for declaring them hostile, the procedures involved, and the implications for the case.
Into the bargain, who is a Hostile Witness in the first place?
A hostile witness is a person called by a party to testify, but who unexpectedly gives evidence that is unfavourable to the case of the party who called them. Such a witness may:
- Contradict their earlier extrajudicial statement
- Refuse to answer simple questions
- Show signs of being evasive, biased, or unwilling
- Display hostility towards the party who called them
- Attempt to support the opposing party’s narrative
The key idea is that the witness turns against the party calling them, making their testimony unreliable or suspicious.
It is important to note that being a hostile witness is not the same as being an unfavourable witness. A hostile witness is one who is adverse in fact, not merely one who gives testimony that doesn’t help the case.
Legal Basis for Hostile Witnesses in Nigeria
The statutory framework for handling hostile witnesses is found primarily in Sections 230, 232, 232 and 233 of the Evidence Act. While you can directly download the Evidence Act here, below is a breakdown of the aforementioned sections
- Section 230 of the Evidence Actempowers the court to permit a party who calls a witness to put questions to them that may be asked in cross-examination. This includes questions that impeach the credibility of the witness.
- Section 232 of the Evidence Act 2011 allows a party to contradict their own witness with prior inconsistent statements after laying the necessary foundation.
3. Case Law
Nigerian appellate courts have clarified what amounts to hostility and how it should be handled. Notable authorities include:
- Aondoakaa v. Aondoakaa (2010) – Courts must be satisfied that the witness is adverse.
- Alake v. The State (1991) – Prior inconsistent statements can be used to test credibility.
- Okoro v. The State (1998) – Declaring a witness hostile gives the calling party the right to cross-examine them.
Read: The Burden and Standard of Proof in Evidence
When can a Witness be Declared Hostile?
A court does not automatically treat a witness as hostile simply because their testimony does not favour the party that called them. To declare a witness hostile, the party should called such witness must apply to the court usually by seeking the leave of the court to discredit the witness. The counsel is required to cal evidence to discredit the witness directly and then he allies to the court to declare such witness hostile. Now while doing this, the court must be convinced that the witness has satisfied the following
- Has become clearly adverse
- Intentionally departed from their earlier statement
- Shows actual hostility or animosity
- Appears aligned with the opposing party.
Some typical behaviours and actions that may justify the hostility of a witness include:
- Denying making earlier statements
- Giving unexpected answers designed to mislead
- Showing signs of deception or bias
- Pretending not to recall crucial facts
Once the court is satisfied that the witness has done any or all of these, the honourable judge will use his discretion, guided by conduct and credibility.
Procedure for Declaring a Witness Hostile
To declare
1. Make an Application to the Court
The party calling the witness makes an oral application asking the court to declare the witness hostile or adverse.
2. State your Grounds
In the course of your application, a Counsel must explain why such witness should be declared hostile and this is usually done by pointing to contradictions, inconsistencies, or signs of unwillingness.
3. Court’s Decision:
The judge may question the witness briefly and must be satisfied that they are adverse.
4. Permission to Cross-Examine:
If granted, the calling party may:
• Use leading questions
• Use prior statements to impeach the witness
• Treat the witness as though on cross-examination
The opposing party may still cross-examine the witness afterwards.
The Effects of Declaring a Witness Hostile
Like every other action in our Nigerian legal system, there are resultant effects of declaring a witness hostile. The witness’s testimony is not automatically rejected
The court will still consider any part of the testimony it finds credible.
• The calling party may impeach credibility
Prior statements can be used to show inconsistency.
• The evidence of the hostile witness may even support the opposing party
The judge has discretion to accept whichever part of the evidence they believe.
• It protects the calling party
The party is not automatically bound by damaging testimony from the hostile witness.
Use of Prior Inconsistent Statements
A major benefit of declaring a witness hostile is that previous statements made by the witness (such as police statements, depositions, or written briefings) may be used to show:
- Contradiction
- Fabrication and
- Loss of credibility
However, such earlier statements do not automatically become evidence of the truth of their contents. They are used mainly to discredit the witness, not to prove the fact asserted.
Examples from Nigerian Court Practice
• A police officer who investigated a crime but later denies his earlier findings in court.
• A family member in a land dispute who switches sides during trial.
• An employee who gave a written statement supporting their employer but changes their story in court.
In all such scenarios, counsel may apply to treat the witness as hostile.
Conclusion
Hostile witnesses are a reality in Nigerian litigation, and the law provides clear mechanisms to address their unpredictable conduct. Declaring a witness hostile enables counsel to challenge credibility and protect their client’s case. However, the ultimate decision on what weight to give to the testimony rests with the trial judge, who must evaluate the evidence based on credibility, consistency, and the facts presented.
Understanding the concept and procedure surrounding hostile witnesses is essential for legal practitioners, litigants, and anyone interested in the workings of the Nigerian justice system.
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