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IT IS NOT IN EVERY CASE THAT A MEDICAL DOCTOR MUST BE CALLED

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A lot of heavy weather has been made about the failure of the prosecution to call the medical doctor to testify in this case. First of all, it must be stated, that it is not in every case that the medical doctor must be called to testify. By virtue of Section 55 (1) of the Evidence Act, 2011, the report of the medical officer who performed the autopsy may be taken as sufficient evidence of its contents. See: Edoho Vs The State (2010) 14 NWLR (Pt. 1214) 651; Isiekwe Vs The State (1999) 6 NWLR (Pt. 617) 43; Popoola Vs The State (2013) 17 NWLR (Pt. 1382) 96. The facts and circumstances of each case will determine whether the attendance of the maker of the medical report is essential. Secondly, it is for the prosecution to determine the number of witnesses to call in order to discharge the burden of proving its case beyond reasonable doubt. It has been held that what is material is not the quantity of witnesses but the quality of the evidence adduced. See: Akalezi Vs The State (1993) 2 NWLR (Pt. 273) 1; Smart Vs The State (2016) LPELR 40728 (SC); Nwaturuocha Vs The State (2011) 6 NWLR (Pt. 1242) 170.

— K.M.O. Kekere-Ekun, JSC. State v Abdu Musa (2019) – SC.625/2016

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expert witness

TO QUALIFY AS AN EXPERT UNDER THE EVIDENCE ACT

To qualify as an expert under the Act the witness must be specially skilled in the field in which he is giving evidence and whether or not a witness can be regarded as an expert is a question for the Judge to decide; the decision must be based on legal evidence before him. As Sir Verity, CJ (Nigeria) put it in Ajani v. The Controller of Customs 14 WACA 34 at 36: “It is clear, I think, that the test must always be the knowledge and experience of the particular witness and whether the evidence justifies the conclusion that he is ‘specially skilled’ within the meaning of the Evidence Ordinance, which means no more than that he has special knowledge, training or experience in the matter in question.”

— Ogundare, JSC. Azu v State (1993) – SC. 131/1992

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NON PRODUCTION OF QUALIFICATION OF EXPERTISE GOES TO WEIGHT NOT ADMISSIBILITY

It is the considered view of this tribunal, that the contention of learned counsel to the 2 nd Respondent, that Pw32, did not produce before the tribunal, his qualification or certificate, to satisfy the tribunal of his qualification as an expert witness pursuant to S68 of the Evidence Act 2011 does not go to the admissibility of the report Exhibit P169, but to the weight to be attached to the report, if the court finds so.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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OPINIONS OF HANDWRITING EXPERTS ARE ADMISSIBLE TO DECIPHER WORDS

While considering the provisions of S.107(1) Evidence Act the Court of Appeal in D.T.B. vs. Awanzigana Enterprises supra also had this to say:- “Moreover the opinions of handwriting experts are admissible to deciper words beneath obliterations erasures, or alterations, although it is for the court to determine what the words are. Experts may also give their opinions as to whether handwriting is natural or imitated, and whether it shows points of comparison but it is for the court to determine whether a particular piece of writing is to be assigned to a particular person, and documents may be submitted to the court assigned to a particular person, and documents may be submitted to the court for comparisons to be made. The weight to be attached to any expert evidence depends upon the skill of the expert.”

— A.G. Mshelia, JCA. Ize-Iyamu v Alonge & Ors. (2007) – CA/L/184/03

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WHERE PARTY BRINGS EXPERT WITNESS – WEIGHT OF TESTIMONY

In Fajemi v. Oni (2009) 7 NWLR (Pt. 1140) 223 @ pp. 276 – 277, it was emphatically held inter alia thus: “The Court must be weary 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 must be taken with a pinch of salt.”

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EXPERT IS PERMITTED TO GIVE AN OPINION BASED ON HEARSAY

Para. 40: “It is common knowledge that an expert’s opinion is usually based on his training and experience. In law an expert is permitted to give an opinion on the basis of hearsay information, provided that it relates to specific matters of which he does have personal knowledge. Thus a doctor can give evidence of what he was told by a patient about his condition for the purpose of evaluating his diagnosis; though his testimony is inadmissible to show what symptoms were actually being experienced by the patient; see R. V. Bradshaw (1985) 82 Cr. App. R. 79, CA.”

— Saidykhan v GAMBIA (2010) – ECW/CCJ/JUD/08/10

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EXPERT EVIDENCE OVER WEIGHS PRESUMPTION

It is, therefore, a negation of duty to run away from expert evidence and postulate presumptions. Presumptions do not arise where direct evidence is available.

— Obaseki Ag JSC. Seismograph v. Ogbeni (1976) – SC.39/1974

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