Answered by: Legusc team
Do you have any question And you don’t have an answer? Download our mobile App now to join our students forum to get an answer for your question (s)
Qn: Explain the scope of the powers of the civil court:
a) To examine the witnesses called by the parties.
b) To summon and examine witnesses on its own accord.
- O INTRODUCTION.
In our introductory remark it is our duty to define the word examination as used under the law; this is simply because the word witness is common to the members of the class.
Examination means the questioning of a witness on oath or affirmation, and in court of law witness is subject to examination in chief cross-examination and re examination[1].
When the suit comes up for hearing, the party having the right to begin will state his case and produce his evidence in support of the issues, which he is bound to prove. The order in which parties will be required to produce evidence depends largely on the question as to who has the burden of proving a particular issue. In general, the plaintiff, being the person who asserts facts on which his cause or causes of action are founded, has the right to begin, under the civil law the right to begin the case is vested to the plaintiff unless the defendant admits the facts alleged by the Plaintiff as per O XVIII r 1 of the Civil Procedure Code (herein after is referred to as CPC).
The duty of adducing evidence whether oral or documentary before the court is upon the parties and, or their witnesses. Therefore when the court set the day of hearing the parties may obtain, on application to the court or to such officer of the court appointed on this behalf, summonses to a person whose attendance is required either to give evidence or to produce documents, as per O XVI r 1 of CPC, also under Order XVI rule 2 (1) of CPC provide that;
“The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into court such a sum of money as appears to the court to be sufficient to defray the traveling and other expenses of the person summoned in passing to and from the court in which he is required to attend, and for one day’s attendance.”
This Order shall be read together with sections 23, 24 and 26 of the CPC apply so far as the witness summonses are concerned. Section 23 gives powers to the courts to issue summonses when the suit is duly filed to the defendant.
This process of the summons to the witnesses is done after framing the issues, the trial begins and at the trial, the plaintiff and the defendant lead evidence in support of their claims. The rule that the evidence of witnesses should not be in is in question and answers form is not absolute. There are times when the nature and importance of a question or the importance of an answer to it is such that it is necessary to record both the question and the answer to it.
As a general rule, all witnesses must be examined in open court[2] and on oath or affirmation, that is, they must swear or affirm (depending on their religious faith) to tell the truth, the whole truth and nothing but the truth. The only exceptions to this rule are children of tender years, the who, if the court is satisfied, after due inquiry, that although they do not know the nature, value and obligations of oath. Such witnesses may give evidence without being sworn or affirmed.
There are three stages in examination of witnesses: examination in chief, in this, the party calling the witness examines him, that is, he asks the witness all questions the answers to which will support his case.
The aim of examination in chief is to let the witness give all the materials facts, which the witness knows and on which the case of the party calling him wholly or partly depends. When examination in chief is complete, the opposite party is given the opportunity to examine the witness. This is called cross-examination and its purpose is to test the accuracy and truthfulness of the witness, to destroy or weaken his evidence, or to show that the witness is unreliable or to extract from the witness evidence, which is favorable to the party. When cross-examination is over, the party calling the witness will, if he so desired, examine the witness again. This is called re-examination. The purpose of it is, so to speak, to mend holes or repair the damage done by cross- examination.
Section 144 of the Evidence Act provides that order of production and examination of witnesses will be regulated and governed by the law. Criminal cases by the criminal procedure code and in civil litigation by the civil procedure code.
2.0 MAIN BODY
(a)The scope of powers of civil courts to examine the witnesses called by the parties,
As far as our question is concerned particularly in the power of civil courts to examine the witness called by the parties, it is the duty of the parties to call for witness to give evidence and not the duty of the court, this was held in the case of Generose Ndimbo V B.Y Kapesi[3] that it is the duty of each party to prove the claim in civil case and the court can only summon witnesses if the court is asked to do so.
Therefore from the case it remain that it is the duty of parties themselves to call for the witnesses though there are some circumstances in which the court can do so, these circumstances will be explained later.
Therefore in examination of the witness called by the parties the court has the following powers in relation to examination.
Firstly the court is responsible for the order of re examination of the facts or matter, which is new by the adverse party, provided the party has permission from the court as per s.147 (3) of the Evidence Act.
Also the court have power to permit a witness to be recalled either for further examination in chief or for further cross examination and if does so, the parties have right of further cross examination and re examination, as provided under sect.147 (4) of the Evidence Act, and also this has been provided under O XVIII r12 of CPC, which provides that, if sometimes occur that after a witness has given evidence, either of the parties or the court may be of the view that some material facts to which the witness could have testified has been omitted, in such event, the court at any time may re-call such witness and subject to rules of evidence, put question to him as the court may deem fit.
Furthermore any person present in the court may be required by the court to give evidence or to produce any document then and there in his possession or power as per O XVI r 7 of CPC.
The court has power to declare the witness as a hostile witness, therefore, the party may not declare cross examine his own witness unless the witness has turned hostile and the court has granted permission to the party to cross examine the witness.
Therefore the civil courts has power to examine the witnesses called by the parties, but this is power is limited simply because, it is the duty of the parties themselves to examine the witnesses as they are the ones who are responsible in calling them but in doing so the court may in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form and at any time of a witness of a parties relevant fact or irrelevant and neither the parties shall be entitled to make any objection to any such question or order without the leave of the court to cross examine any witness upon any answer given in reply to any such question, this is per s176 of the Evidence Act.
The power of the court under that provisions have the following limitations which are provided under sub sect 2,in that, the sub sect 1 shall not authorize the court
Firstly to compel any witness to answer any question or produce any document, which such witness would be, entitled to refuse to answer or produce under Part II of this Chapter (Evidence Act) if the question were asked or document were called for by the adverse party.
Also to ask any question, which it would be improper for any other person to ask under sects 158 or 159, which provides for the court to decide, when questions shall be asked and when witness compelled to answer, and also for the questions not to be asked without reasonable grounds.
Lastly, to dispence with primary evidence of any document, except in the case excepted by this Act, it is provided that documents must be proved by primary evidence except in the cases mentioned under the Evidence Act, and the circumstances are provided under s.67 of the Evidence Act.
(b) The scope of powers of civil courts to summon and examine witnesses on its own accord.
It is provided by the law that parties are responsible to call witnesses simply because they are the ones who knows their case and the persons to assist them as their witnesses, however the law provides on the other hand that where the court at any time thinks it necessary to examine any person other than a party to the suit and not called as witness by the party to the suit the court may, of its own motion, cause such person to be summoned as a witness to give evidence or produce any document, and may examine him as a witness,this is provided under O XVI r 14 of CPC.The procedures underline the fact under the adversarial system it is the party himself who will prosecute his case, thus he is in a better position to know his witnesses and secure the attendance of his witnesses.
It is pointed out that the power is normally used to examine expert witnesses, it should not never be used to build up a party’s case and in the case of Joseph Marco V P.Rweyemamu[4] it was held that in the case that when a witness is summoned under the provision of r 14 he is the witness of the court and not a witness for any of the parties, the court should not use its power under this rule to help to strengthen a party’s case.
According to the case of Thobias Zenda V Herman Zenda[5], r 14 should be exercized very rarely the judge stated that, this rule empowers the magistrate to call at his own initiative an additional witness at any stage in the proceeding if he thinks it is necessary to do so, the broad rule being that it is for the party to present his own case to the court and not for the court to make a case for litigant. The instances in which the provisions of this rule may be invoked will depend on the facts of each case. Furher more in the case of Salum V Said[6] it is held that this being judicial discreation, it has of course, to be exercised judicially, it must only be exercised where the court is satisfied that it is for the interest of justice to do so and also it is only rarely that a court will, of its own motion, in cases such as this seek to clarify an issue by requiring an additional witness.
3.0 CONCLUSION
From the above question it can be noted that, it is a duty of the party to civil proceedings to present his case, which is discharged by the investigating to the case, and presenting relevant evidence, the court under no circumstances should introduce in investigating a party’s case and summon witness on behalf of a party. Court has power to summon witness other than those summoned on application by the parties, and the witnesses so summoned are the witnesses of the court and not of the parties.
#qn
