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1. This question arose in light of the defendants’ decision to close their respective cases after the petitioner closed his case. The question was therefore asked whether the first defendant should have opened his case.
In this case, the President of the Electoral Commission (EC) would have been compelled to testify because the first defendant filed a witness statement which he intended to rely on as evidence to justify his case. This witness statement was that of the President of the EC.
2. Before turning to this point, the preliminary question to be asked is whether the EC was required to open its defense following the conclusion of the petitioner’s proceedings. In civil proceedings, courts have long recognized the right of each defendant to choose, at the closing of the plaintiff’s case, to argue in the Court that on the presentation of the plaintiff at the close of the plaintiff’s case, it is not there is no case. for the defendant to respond.
The respondent may, in such circumstances, choose not to present a case.
3. The appropriate principles governing the submission of any civil law case are clear. The effect of case law is that, in civil proceedings, if the defendant chooses not to present any evidence, the judge will determine the outcome on a balance of probabilities, but with the possibility of an adverse inference drawn against the defendant for not. bear witness.
See the Benham Ltd v Kythira Investments Ltd & Another case [2003] EWCA Civ 1794. In the present case, the Court did not need to submit the first defendant to an election. The first defendant himself chose not to testify.
4. In any event, the President of the EC would inevitably have had to testify for the first respondent if the first respondent had chosen to open his defense, unless the first respondent subsequently filed additional witness statements and chooses to abandon the witness statement filed for the president of the EC.
5. It should be noted here that the president of the EC is not a party to the proceedings either personally or in her official capacity. The person who is party to the proceedings is the Commission as Commission.
6. With regard to witness statements, the rules require that a party who intends to call a person to testify on their behalf, file a witness statement on which that witness will rely at trial as evidence. principal, unless the court orders otherwise.
The provisions of Rule 3B (2) of Order 38 of the (Amendment) Rules of the High Court (Civil Procedure) (CI 87) therefore provide the following;
“3B. Obligation to serve witness statements for use at trial. (2) The Court[…]orders one party to file and serve on the other parties any witness statement of oral evidence upon which the party reporting the statement intends to rely on any question of fact to be decided at trial. “
7. As will be recalled, the Court ordered the parties to file witness statements with respect to the witnesses they intended to call at trial to testify on their behalf.
8. The rules are, however, fairly clear, according to which a party is not bound to call the persons for whom it has filed witness statements and on whom it intends to rely during the trial. The law allows a party who has filed witness statements to abandon the witness statement at trial.
9. The rule allows a party who has filed witness statements for the persons whom it intends to call to testify at trial, several options with respect to the witness statements so filed.
This is provided for in Rule 3E as inserted by Order 38 of the High Court (Civil Procedure) Rules (Amendment) (CI87). The rule is clearly directed; Use at trial of witness statements that have been served.
10. The first well-known option available to a party who has filed the witness statement is to call the person in question to testify at trial. This is provided for in paragraph (1) of Rule 3E as inserted by Order 38 of CI 87. He says that;
“(1) If a party has served a witness statement and that party wishes to rely at trial on the testimony of the witness who made the statement, that party shall call the witness to testify orally unless the Court does not do so. order otherwise … “
11. The second option available to the party who filed the witness statement is to refuse to call the person in question and to “put[s] the statement as hearsay evidence. This is provided for in the same rule.
12. Finally, the party may refuse to call the witness and, without stopping there, refuse to file the statement as hearsay evidence and, therefore, abandon the witness statement altogether. This is recognized in paragraph (5) of the same rule 3E inserted by Ordinance 38 of CI 87.
13. That said, the provisions of Rule 3E (5) give the opposing party an option where “the party who served a witness statement does not call the witness to testify at trial or does not make the witness statement. as hearsay evidence. . “
He adds that in such circumstances “any other party may file the witness statement as hearsay evidence”.
14. As stated, the rule is quite simplistic, whereas in the case of the petition, the petitioner had closed his case and the first respondent had chosen not to call the person on whose behalf the witness statement was filed. , this left the petitioner blocked because the petitioner no longer had any control over the procedure.
15. In the situation in which the petitioner found himself, if the petitioner considered the Chairman’s testimony to be crucial for his case, the petitioner had two main options in terms of strategy.
16. First, the witness could seek leave from the Court in the interests of justice to reopen his case and present the document as hearsay evidence.
In such a case, the witness would argue that he had a legitimate expectation that the first respondent would submit the statement and that it would be in the interests of justice for the statement to be entered into evidence through one of their witnesses as hearsay evidence.
17. Second, perhaps the petitioner should not have played in assuming that the first respondent would summon the president, especially since the rules do not require the first respondent to call her as a witness.
18. The first respondent could have summoned the president. This was possible especially since the petitioner’s case was largely documentary. The documents relied on by the Applicant could have been submitted to her during the President’s cross-examination, subject to the Court’s leave to treat her as an adverse witness.
This is authorized by section 72 of the 1975 Evidence Act (NRCD 323). He thus declares;
“72. Adverse witness in civil action
(1) Subject to the discretion of the Court, in a civil action a party, or a person whose relationship with a party renders that person’s interest substantially identical to that of a party, may be called by a party. opposing party and considered as if: in cross-examination at any time during the presentation of the evidence by the party calling the witness.
(2) When the witness is cross-examined by counsel for that witness or by a party who is not adverse to the party with whom the witness is related, that examination shall be treated as if it were further questioning. “
19. As things stand, the Supreme Court will rule on the issue by asking itself two main questions. First, the question is whether, by accepting the petitioner’s evidence at face value, no case has been established in law, and second, whether the evidence presented for the petitioner is so unsatisfactory or unreliable that the court should conclude that the burden of proof has not been discharged. See Storey v Storey [1961] P. 63 CA
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