A witness is a person who is called to testify in court in either criminal or civil proceedings.
Section 133 of the Evidence Act Cap 6 provides that no particular number of witnesses shall in any case be required to prove a fact. This means that a party in court is at liberty to lead one witness or more to give evidence of a particular matter.
The Act further gives the scope of the persons who are competent to testify. Any person can testify in court for as long the person is able to understand the questions put to him/her. This includes persons with hearing and sight impairments. Such persons may give their evidence using sign language and writing which will still be considered to be oral evidence.
Special attention is given to spouses. In criminal proceedings, the spouse to the accused is a competent witness and not compellable witness for the prosecution however such spouse is a competent and compellable witness for the defense regardless of whether the accused is charged alone or jointly. In civil proceedings, the spouse to any party to the suit is a competent and compellable witness.
Examination of Witnesses
In criminal proceedings, the Prosecution witnesses are examined first. At the close of the prosecution case, a ruling is made on whether there is a ‘prima facie’ case or not. If the Court rules that there is a case to answer, the defence will then be required to adduce their evidence. In civil proceedings, the Plaintiff/Petitioner gives the evidence first and this is followed by the Defendant/Respondent.
Each witness is examined in chief then if the adverse party desires, they cross examine. Re-examination also happens when the party desires.
The examination of a witness by a party who calls him or her shall be called examination in chief. Open questions are asked during this examination to enable the witness to tell the story in a chronological order. Leading questions cannot be asked in examination in chief except with leave of Court. However, the Court will accept leading questions where they relate to undisputed matters and in Courts opinion, have already been sufficiently proved.
The examination of the witness by the adverse party is called cross-examination. Cross examination must relate to the relevant facts of the case. However, it need not be restricted to the facts that were testified to by the witness. Leading questions here may be asked.
The questions asked by the calling party subsequent to the cross-examination is referred to is re-examination. Re-examination is mainly directed to explanation of matters that were raised during the cross-examination.
In the hearing of evidence, the Judicial officer has authority to determine which evidence is admissible.