The Treatment Of Evidence Of Expert Witnesses By Nigerian Courts: The Need To Review The Mode Of Calling Expert Witnesses

EXTRACT:

In matters involving foreign law, customary law or custom, or of science or art, or the identity of handwriting or finger impressions, the evidence of an expert witness may be required to assist the trial court in finding the truth in the resolution of the same. In this article, the authors discuss the treatment of expert witness evidence by courts in Nigeria. The authors examined the principles of law on the subject and observed that the prevalent trend in almost all the reported cases is that the expert witnesses called testified in favour of the parties at whose behest they were before the courts. The only exceptions were the expert witnesses who testified at the instance of the court. In these circumstances, therefore, the appellate courts have urged trial courts in a plethora of decided cases, inter alia, to be wary of admitting reports prepared by experts not at the instance of the court but at the behest of any of the parties to the dispute; and not to accept hook, line and sinker the evidence of an expert on an issue. The authors, in their conclusion, posit that the time is ripe for a review of the mode of calling expert witnesses and further suggest that if expert witness(es) must be called, it must be at the behest of the court.

Keywords: Evidence, Expert, Witness, Opinion, Court, forensic, etc

INTRODUCTION:

The word 'Expert' in its ordinary usage refers to someone very knowledgeable, proficient or has a special skill or ability. In legal parlance, however, it has been defined as someone who, through education or experience, has developed skill or knowledge in a particular subject so that he or she may form an opinion that will assist the fact-finder.¹ In Nigeria, it is the law that when the court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art, or as to the identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or of science or art, or as to the identity of handwriting or finger impressions, are admissible.² The law recognizes such persons who are so specially skilled in customary law or custom, or of science or art, or as to the identity of handwriting or finger impressions as experts.³

Evidence is how parties establish their claims before a court or tribunal. The word 'Evidence,' has been defined as "Something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or non-existence of a fact."⁴

Evidence of experts, also termed expert testimony, could be loosely defined as the evidence given by experts. Putting it more succinctly, Expert evidence has been defined as evidence about a scientific, technical, professional, or other specialised issue given by a person qualified to testify because of his familiarity with the subject or special training in the field.⁵ An expert who gives evidence is called an expert witness and has been defined in many decided cases. In Omisore v. Aregbesola,⁶ an expert witness is defined as "one who has made the subject upon which he speaks a matter of particular study, practice or observation and he must have a particular and special knowledge of the subject." In A.-G. Federation v. Abubakar,⁷ an expert witness is "any person who is specially skilled in the field he is giving evidence."

Any person who is not so specially skilled in customary law or custom, or of science or art, or as to the identity of handwriting or finger impressions, or who gives evidence which could be given by anyone else cannot, therefore, be said to be an expert witness, even if he has been held out to be one. It has been held that whether a witness can be regarded as an expert witness is a question to be decided by the trial judge.⁸ In Ladoja v. Ajimobi & Ors,⁹ the Supreme Court, per Peter – Odili, JSC (as he then was), stated that "it is the court's prerogative to determine that a person being called as a witness, by his qualification and learning on the subject in which the court requires his opinion and the reasons for the opinion, is indeed specially skilled." Thus, in Omisore v. Aregbesola,¹⁰ Nguta, JSC (of blessed memory) found that two of the Petitioner's witnesses "were dressed in the garbs of, and were paraded before the tribunal as experts" and that they were "bereft of any expertise." His lordship observed thus:

"Expert Witness" is a regular feature in our electoral jurisprudence even though basically matters of "foreign law, or of science or art, or as to identity of handwriting or finger impressions are hardly involved. Perhaps parties to election petitions, in desperation to win their cases, employ the so-called experts believing that their mere description as experts elevates their evidence to a pedestal higher than the evidence of ordinary witnesses."

WHEN EVIDENCE OF EXPERTS MAY BE ADMISSIBLE AND RELIED UPON

The Supreme Court of Nigeria per Galinje, JSC in Abiodun V. FRN¹¹ stated that expert opinion is only required where the expert can provide the court with information or analysis of a technical nature that is possibly outside the experience and knowledge of the judge. Hence, if it is an issue that the Judge is already familiar with or can easily be verified in an appropriate book or document¹², then there would be no need to resort to expert witnesses.

Also, in Ladoja V. Ajimobi & Ors,¹³ the Supreme Court, per Ogunbiyi, JSC stated that where it is discovered that expert evidence is necessary, it is only the evidence of a proven expert that will be admissible as the court will not accept any other opinion outside that of an expert.

In a plethora of decided cases, the apex court has stated when courts may admit and rely upon the evidence of expert witnesses. In Sowemimo & Anor v. The State,¹⁴ it was held as follows:

"...In Wambai v. Kano Native Authority (1965) NMLR 15, it was held that in certain cases, evidence of opinion of an expert is relevant, but he must be called as a witness and must state his qualifications and satisfy the Court that he is an expert on the subject in which he is to give his opinion and he must state clearly the reasons for his opinion."

The Court of Appeal also stated in Jalbait Ventures (Nig) Ltd & Anor. V. Unity Bank Plc¹⁵ per Wambai, JCA as follows:

"It is now settled Law that for an expert report to be admissible and relied upon, the expert must be called as a witness more so where the report is of a scientific or technical nature which may be outside the knowledge of the Judge. See KAYODE VENTURES v. MIN. FCT (2010) 7 NWLR (Pt. 1192) 171 SC, A.G.F. v. ALH ATIKU ABUBAKAR & ORS (2002) 4 SCNJ. 456. The party seeking to rely on such a report has an obligation to call the expert as a witness to subject him to cross-examination not only on the contents of the report but also on his acclaimed qualification on the professional expertise in the field or the subject matter. The reasons for his opinion must also be scrutinized. He must state in evidence his qualification, and satisfy the Court that he is an expert in the subject on which he is to give his opinion upon and state clearly the reasons for his opinion. OGIALE V. SPDC CO. NIG (1997) NWLR (Pt. 480) 148, 183, STOYOL & ANOR V. INEC (2011) LPELR (CA).

The Supreme Court per Peter – Odili, JSC (as he then was) in Ladoja v. Ajimobi & Ors¹⁶ also stated as follows:

"At the trial tribunal, PW1 testified giving opinion on the report of the inspection team of the electoral material used during the said election. While the Appellant took the position that PW1 was competent to testify the Respondents refused to go along the same line saying the only opinion acceptable to a court or tribunal to be so used can only be that of an expert which PW1 was not. In this I cite the case of: A.C.N v. Nyako (2013) ALL FWLR (Pt. 686) page 424 at 462 paras E – G on this proposition of law held as follows:

'Where a court or tribunal requires to form an opinion upon a point, specified thereunder, the opinion of persons specially skilled in the area are admissible. It is a condition precedent to the admissibility of the opinion tendered to enable the court form its own opinion that it is the opinion of a person specially skilled in the area the court or tribunal is required to form its opinion on a point. The qualification, experience and depth of the person's learning are invariably the criteria which entitle him to tender his opinion in order to aid the court or tribunal. The person so qualified under the section is called an expert. His opinion is necessary and so admissible because same is outside the experience and knowledge of the judge as a judge of fact. It is the court's prerogative to determine that a person being called as a witness, by his qualification and learning on the subject in which the court requires his opinion and the reasons for the opinion, is indeed specially skilled.'

This court had taken the same view in Dagayya v. State (2006) ALL FWLR (Pt. 308) 1212 at 1231 in which was expatiated that an opinion is what a person thinks about somethings based on the person's personal judgment rather than actual facts. An opinion also means what in general people think about something. It connotes or conveys a professional judgment on part of professional or expert." (emphasis supplied)

From the above-cited judicial authorities, it is our respectful view that for expert opinion to be admissible in evidence, the following conditions must be satisfied:

1. The expert must be called to give evidence in court as a witness by the parties

For an expert report to be admissible and relied upon by a court, it is now settled law that the expert must be called as a witness by a party to give evidence to aid the court in deciding the case. It is also the law that it is within the trial Court's power, as provided by its Rules of Civil Procedure, to invite the evidence of an expert.¹⁷ However, even if a party calls an expert witness, as is often the case, the primary responsibility of such a witness is to aid the court and not to aid the party calling it to make or prove its case. As such, any such evidence given must be independent, unbiased, complete, neutral and true to the best of the expert's knowledge.

The major reason for calling such a witness to give his evidence is that if such a witness is not present before the court to testify directly, any report made by him which another witness in court tenders will have no probative value attached to it.¹⁸ The expert witness must depose his opinion on oath and be cross-examined on same.

In Wambai & Anor. v. Kano Native Authority (supra), the Appellants were charged before a Magistrate Court in Kano with the offence of forgery and were convicted. At the trial before the learned Magistrate, an expert opinion was admitted in evidence, but the expert himself was never called as a witness. On appeal, the conviction and sentence of the Appellants based on the expert opinion were quashed. In A.-G. Federation v. Abubakar (supra), the trial court had relied on the opinion of Prof. Nwabueze, who was never called as a witness in the case. The Supreme Court upheld the decision of the Court of Appeal, which ignored Prof. Nwabueze's opinion. In doing so, the apex court per Aderemi, JSC (of blessed memory) approved as good law the principle of law contained in the decision of the High Court of Northern Region in Wambai & Anor. v. Kano Native Authority (supra) as follows:

2. The expert witness must state his qualification and satisfy the court that he is an expert

The second requirement is that the expert witness must state his qualification. He must provide information that explains his experience on the relevant subject and prove that he is a specialist in that field before the court can consider his evidence. In Ladoja v. Ajimobi,²⁰ the Supreme Court rejected the expert witness' report after he was found not to be an expert in that field and as such was not qualified to give evidence in that regard. In fact, Ogunbiyi, JSC stated clearly that "the court is not allowed to accommodate any other opinion outside an expert."

3. He must give the reasons for his opinion on a subject

When called to give evidence of opinion, it is the law that an expert must not only state his qualifications but also clearly state the reasons for his opinion.²¹ It is therefore not enough for the witness to state his opinion before the court without more. This is because the expert does not by virtue of his knowledge become a Judge or Jury in the suit, as such, he must give his opinion and carefully explain how he reached his opinion by highlighting all the factors considered by him in reaching his conclusion. The expert must also furnish the court with the necessary artistic or scientific criteria or principles it used in reaching its conclusions to enable the court to form its independent judgment through the application of those principles to the facts already proved in evidence.²² Based on this, it is clear that what is of more value to the court is not necessarily the conclusion/opinion of the expert but rather the principles and analysis adopted to reach the conclusion. The expert's testimony will therefore be admissible so long as the expert provides a sequence to his analysis, avoids ambiguous data, and follows the standard of practice in his field of expertise.

WHETHER COURTS ARE BOUND TO ACCEPT AND ACT ON EXPERT EVIDENCE

The pertinent issue to discuss at this juncture is whether, when an expert has met the conditions for the admissibility of his evidence, the court is bound by the same by placing reliance on it. This issue has been considered in a plethora of decided cases.

It is settled law that a court will act on a written deposition of a witness, which is his evidence in chief, only if the same is found credible and reliable upon proper evaluation.²³ It is also the law that the court is not bound to take an expert's report hook, line and sinker, and that the court has discretion on whether to accept or reject and expert opinion.²⁴ In the case of Keystone Bank v. Dazz Motors Ltd & Anor., ²⁵Aliyu, JCA held as follows:

'It must also be stated that, even where a witness is recognized and regarded as an expert for the purpose of the Section 68 of the Evidence Act, the opinion proffered by him remains an opinion and is never binding on the Court! It is only of persuading effect....'

In the case of Odutola v. Mabogunje,²⁶ the Supreme Court per Rhodes – Vivour, JSC (as he then was) upheld the judgment of the lower court as follows:

A court may reject expert evidence even if it is uncontroverted and unchallenged by any other expert witness. This means that if only one party calls an expert witness in a case, the court is not bound to accept and rely on the same, even if it satisfies the three conditions stated above. Where both parties in a suit call expert witnesses who give contradicting evidence on the same issue, the court may reject both reports or accept one and reject the other. Indeed, in the case of Okafor v. Effiong, Nimpar, JCA stated the position of the law that courts are to be wary in using expert reports made at the behest of any of the parties in dispute.²⁷ Hence, while the admissibility of the expert's opinion will depend on the three conditions above as well as other issues like the clarity with which he demonstrates his ideas, the precision of the data provided, and the circumstances of a particular case, the probative value of his evidence is ordinarily a question for the Judge to decide.

THE DECISION IN ACCESS BANK PLC V. RIZEN OTHNIEL LTD & ORS. (UNREPORTED)²⁸

At the High Court of Lagos State before Honourable Justice Y. A. Adesanya, the Claimant claimed jointly and severally against the Defendants the sum of N145,687, 032.10 and interest thereon. The Defendants denied liability for the claims. The Claimant pleaded and at the trial tendered a letter dated 14^th April, 2008 purportedly from the 1^st Defendant to the Claimant which was admitted in evidence as Exhibit C12. The 1^st and 2^nd Defendants claimed that Exhibit C12 was forged and gave particulars of forgery as follows:

1. The letter headed paper upon which the letter was written is not the letter headed paper of the 1^st Defendant; and
2. The signature on the letter does not belong to any of the authorised signatories of the 1^st

Since Exhibit C12 was denied by the 1^st and 2^nd Defendants, the signature contained in the document was then subjected to forensic examination by both the Claimant and the 1^st & 2^nd Defendants. At the trial of the case, while the Claimant called one Raphael Onwuzuligbo (CW3) as its expert witness, the 1^st and 2^nd Defendants called one DSP Reginald Udunze (DW1) as their expert witness. The former is a retired Assistant Superintendent of Police who was, until his retirement, a Forensic Document Examiner attached to the Forensic Science Laboratory, Force C.I.D, Alagbon Close, Lagos. At the time of the trial, the latter was a Deputy Superintendent of Police and a Forensic Document Examiner/Handwriting Expert serving as the officer–in–charge of Disputed Documents Unit, Force C.I.D, Lagos.

The expert witnesses in this case gave contradictory evidence on the same issue. Each expert witness testified in support of the case of the party that called him. While Raphael Onwuzuligbo (CW3) testified in support of the case of the Claimant, DSP Reginald Udunze (DW1) testified in support of the case of the 1^st and 2^nd Defendants. In his judgment, the learned trial Judge discountenanced the expert reports of both expert witnesses and gave reasons for so doing as follows:

In the said judgment, the learned trial Judge quoted the words contained in the 1^st and 2^nd Defendants' Reply Address wherein their learned Counsel submitted that "Exhibit C12 is undated, terribly faint, blurred, incoherent, and wordings vague. Except this Honourable Court attempt to input meaning and reconstruct the content, the Exhibits make unhappy read. Exhibit C12 is wooly, equivocal and does not lend itself to comprehension. This court is precluded from embarking on a futile voyage of discovery or speculative adventurism..."³⁰ In the light of this submission, the learned trial Judge, wondered why both learned Counsel to the Claimant and the 1^st and 2^nd Defendants subjected the said Exhibit C12 to the needless expense of forensic examination, attached no weight whatsoever to Exhibits C16 and D3 tendered in evidence by the Claimant and the 1^st & 2^nd Defendants, respectively, but instead relied on other relevant undisputed evidence before the court in reaching its decision.

In ANPP & Anor. v. Usman³¹Aboki, JCA held that "The court must be wary of admitting a report prepared by an expert not at the instance of the court but at the behest of any of the parties to the dispute. Such a report should be taken with a pinch of salt...The existence of other relevant and credible evidence before the court showing that the evidence of the expert is not or cannot be true will constitute a good reason for rejecting it. A trial judge would be right to prefer credible evidence of a non – expert witness on an issue to the evidence of an expert on the same issue where the former is an independent witness whilst the latter prepared his evidence specifically for the case on hand on the direction of the party that called him." In Alade v. The State³² the court restated the settled position of the law that a court is not bound to accept hook, line and sinker the evidence of an expert on an issue.

It is instructive to note that in almost all the reported cases, the expert witnesses testified in favour of the parties at whose behest they were before the courts. The only exceptions were the expert witnesses who testified at the instance of the court. In Omisore v. Aregbesola (supra), PW15 and PW38 were instructed by the Appellant to conduct a physical inspection and statistical analysis of election materials and appeared before the Election Tribunal to present their findings in favour of the Appellant. The apex court held that the so–called expert witnesses were bereft of any expertise and, therefore, attached no weight to their evidence. In Okafor v. Effiong (supra), the Appellant claimed that the Respondent sold to him the property situate at and known as House No. 22, Road 21, 2^nd Avenue, Federal Housing Estate, Festac Town, Lagos acting through her daughter by virtue of a Power of Attorney. The Respondent denied signing any Power of Attorney. The Appellant called a handwriting expert as his witness to establish that the signature on the Power of Attorney is that of the Respondent by comparing the same with the Respondent's signature on her letter to Federal Housing Authority. The Power of Attorney purportedly signed by the Respondent was rejected in evidence. The Court of Appeal held that the Power of Attorney was rejected by the court below, and the same was also not before it. The Court of Appeal upheld the trial court's finding that the Appellant failed to discharge the burden that had shifted to him to substantiate and/or prove his assertion that the Respondent had a legitimate Attorney who sold and transferred the disputed property to him. In ANPP & Anor. v. Usman (supra), Mohammed Nasiru Sarki for the Appellants and Prof. Mohammed Bello and Dr. Shehu Usman Gulumbe for the Respondents produced reports which were analysis of election materials in favour of the parties that instructed them. The Court of Appeal held that the Tribunal was right in not attaching any weight to the expert reports as they are opinions on matters not calling for expertise and the experts were not called witnesses. The courts did not act on the expert reports in all these cases. Having regards to the circumstances of each case, it is our most respectful view that the courts were justified in taking the reports with a pinch of salt.

CONCLUSION:

In light of the foregoing, it is our view that the time is ripe for a review of the mode of calling expert witnesses. It is noted that Order 27 of the High Court of Lagos State (Civil Procedure) Rules, 2019 provides for Case Management and Scheduling. Under Rule (2) thereof, provision is made that the judge shall consider and take appropriate action with respect to about fourteen (14) items listed (a) – (n) thereunder. One of those items listed as (f) is narrowing the field of dispute between expert witnesses by their participation at Case Management Conferences or in any other manner. In the Case Management Information Sheet (Form 18) to be filed pursuant to Order 27 Rule 1(1) and (2) of the Rules, each of the parties is required to state whether the use of a single or joint expert might be suitable in their case, and to file an application if necessary. It is suggested that provisions should be made in the Rules of courts or practice directions issued to stipulate that the challenge of whether expert witness(es) would be called or not should be resolved at the Case Management Conference. Where the judge finds that expert witness(es) would be desirable, it is further suggested that the judge shall order the Inspector General of Police or the appropriate Police Officer heading the Police Forensic Department or the Head of any recognised Forensic Association in Nigeria to appoint an expert to investigate and testify in the case. In such a situation, the cost of calling such witness(es) should be borne by the part(ies) who insists that expert witness(es) be called, and such a fee should be paid through the court Registry. However, the expert witness(es) will be attending court not at the behest of any of the parties but at the behest of the court. The suggested review will surely eliminate or drastically reduce the calling of needless expert witnesses by the parties. References.

Footnotes

1 Black's Law Dictionary, 10^th Edition at page 699

2 Section 68(1), Evidence Act, 2011.

3 Section 68(2), Evidence Act, 2011.

4 Black's Law Dictionary, 10^th Edition at page 673

5 Black's Law Dictionary, 10^th Edition at page 675

6 (2015) LPELR – 24803 (SC) at page 111E – F.

7 (2007) LPELR – 3 (SC) at page 199F -G.

8 (2007) LPELR – 3 (SC) at page 199F -G.

9 (2016) LPELR – 40658 (SC) at page 90B – C.

10 (2015) LPELR – 24803 (SC) at pages 111 – 112F – C.

11 (2018) LPELR-43838(SC) (pt. 21, paras. E-F)

12 Section 122(3) Evidence Act

13 (2016) LPELR-40658(SC) at pages 36 – 37F – A.

14 (2004) LPELR-3108(SC) at page 18 C – D.

15 (2016) LPELR-41625(CA) at pages 33 – 34A – C.

16 (2016) LPELR-40658(SC) at pages 89 – 90B – D.

17 Keystone Bank v. Dazz Motors Ltd & Anor. (2020) LPELR – 50045 (CA) at pages 32B – C.

18 Ogoro v. Seven – Up Bottling Co. Plc (2016) 13 NWLR (Pt. 1528) 1 at 30B – D.

19 (2007) LPELR – 3 (SC) at page 201 – 202E – A.

20 (2016) LPELR – 40658 (SC) (PP. 42 – 44C – A.

21 Sowemimo & Anor v. The State (2004) LPELR-3108(SC) at page 18 C – D.

22 Okereke v. Umahi & Ors (2016) LPELR-40035(SC) at pages 33-34A – F.

23 Omisore v. Aregbesola (2015) LPELR – 24803 (SC) at pages 158C – D.

24 Okafor v. Effiong (2017) 11 NWLR (Pt. 1577) 519 at 541E.

25 (2020) LPELR – 50045 (CA) at pages 30 – 32B – E.

26 (2013) 7 NWLR (Pt. 1354) 522 at 548 – 549H – B.

27 (2017) 11 NWLR (Pt. 1577) 519 at 541D.

28 Suit No. LD/2398/2010.

29 CTC of Judgment in Suit No. LD/2398/2010 – Access Bank Plc v. Rizen Othniel Ltd. & Ors. (Unreported) at pages 87 – 88.

30 CTC of Judgment in Suit No. LD/2398/2010 – Access Bank Plc v. Rizen Othniel Ltd. & Ors. (Unreported) at pages 88.

31 (2008) 12 NWLR (Pt. 1100) 1 at page 73 – 74G – A.

32 (1998) 8 NWLR (Pt. 563) 618.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.