Counsel O, like I like to call him, called me last week. It is not unusual for fellow Counsel to call but because I had not spoken with him in a while, I was concerned. His voice trembled. His words were panicky.
‘Have you had a hostile witness before?’ He asked me.
I am very hesitant to share private legal experiences, unless of course it is not forbidden to do so. The life of a lawyer depends on how she/he trades in the clients’ matters; and the Principle of Confidentiality protects us more than it chains us.
‘Help me, please,’ he continued. ‘I have a matter before Commercial C (read court – our slang) and my client’s transaction may be cancelled because a witness to that transaction just stopped cooperating.’
When I enquired of the type of transaction, he told me that it was a real estate transaction involving a non-citizen; the subject matter (acres of land) had lots of leases; and the money involved was in hefty dollars.
‘Give me half an hour,’ I responded. It is not strange for us to ask for recess because we must recuperate from such surprises.
Hostile witnesses are not good. We don’t anticipate them when we have a clear case. But from training, we have learnt to be ready, always. We have also learnt that asking for help from fellow counsel and calling on court to adjourn is better than burying justice with simple panicky mistakes.
So, Counsel O sought a recess and in no time, we had solved his hostile situation.
Who is a witness?
A witness is a person who claims to know or actually does have knowledge of an event or happening.
A witness can voluntarily surrender information or be compelled to do so by court. If he/she is summoned to testify, the act (and document used to summon him/her) is a Subpoena.
The testimony may be written or oral. The usual practice is to have a witness write (which lawyers do, ordinarily), sign and file (lawyer’s job, too) in court regarding certain facts of a case.
When a witness statement is filed, it is that information that the court uses to verify the accounts relating to the case at hand. In most cases, when the witness is called upon to testify, he/she will be reiterating what he/she wrote or signed.
Unfortunately, for various reasons, witnesses can deny knowledge of the witness statements or the information therein. This is where a witness turns ‘hostile’.
Categories of witnesses
Eye witness: One who gives a physical account of what he/she saw (can also be by other body senses) transpiring. It does not matter if they were physically at the scene as long as he/she can confirm that whatever sense he/she used got the events first-hand as they happened.
Hearsay witness: This one testifies that he/she received the account from someone who actually saw it or witnessed the event happening. Hearsay testimonies are stretchy and courts disregard them or take them seriously with much scrutiny. However, when an eye witness is an unavailable, say dead [dying declaration], hearsay witness accounts are duly considered. They may be corroborated (supported) by further evidence, however.
An expert witness: This witness is one who alleges to have special (professional/skilled) knowledge relevant to the case. For instance, court will call a gynecologist to explain certain aspects of female body reactions to a caesarian section or conception or birth defects since he/she has been trained as a gynecologist.
Character witness: Also known as a reputation witness is one who testifies about the persona/traits or social status of a party to a case.
The other witness is a hostile witness. But,
Who is a hostile witness?
A hostile witness is a witness who during trial gives opposing testimony unfavourable to the party that called him to testify.
He/she, literally changes his/her testimony when called to testify in court. He gives the opposite or unfavourable accounts from the one that he/she gave to the party that called him/her to testify on their behalf.
Sometimes, the hostility is in his/her body language which may show lack of knowledge of the case, disbelief in the party’s innocence/account, questionable innuendos that may be prejudicial to the party that called him/her.
Courts consider the body language of all persons involved in a case. You will be amazed at how many cases turn sour if any party acted contrary to what he/she alleges. (See Order 18 Rule 10 of Uganda’s Civil Procedure Rules S.I 71-3)
Court process when there is a hostile witness
In examining witnesses, the party (often through Counsel) that called the witness may ask direct [legal term] questions to help the witness recount his testimony in court.
Counsel is trained to handle his/her own witness. He will not ask ‘leading’ [legal term] questions that appear as if Counsel is the one giving the testimony.
Instead, he will ask the witness to answer questions that inevitably favour his client.
‘Where were you meeting when the parties signed the contract?’
‘How did you react when you saw them shake hands after signing the contract?’
‘What did you do thereafter when you were given your share of the Agency fee?’
‘Who took the money that was paid to the Vendor?’
‘When did you leave the parties after you received your share of the deal?’
These questions do not suggest the answer but from inference, you can tell that the lawyer and the witness already know the account of the story that they want tell court.
They are open –ended and chances of the witness giving different answers from what you expect are very high.
However, Counsel is careful enough not to suggest the answer or give it himself because he was not there when the parties were contracting the deal.
If the witness is favourable, he will tell the story by answering those questions in favour of Counsel’s client.
When the witness does not answer as expected from Counsel (not that Counsel told him to answer as such), Counsel will be forced to react with panic and spite because it makes his work tedious. The witness may give a different account. For example;
‘I do not remember being at the transaction.’ [When the witness was present according to Counsel’s client’s account].
‘I was not given any money from the transaction.’ [When he actually was given]
This witness is hostile. What Counsel does is to request court to declare the witness ‘hostile’ and thereafter, question him in a way that pins him on scene.
Questions like these are what we call ‘leading’ questions. They usually require a ‘yes’ or ‘no’ answer. So, a liar would be caught in his lie, just as a hostile witness will be blamed for lying on oath to court, which becomes a crime ‘Perjury’.
Leading questions sound like:
‘Did you or did you not receive the Agency fee in a brown envelope sealed with a white slip?’
‘Didn’t you call on the waitress to serve you guacamole and vegetable samosas with African tea after the parties signed the contract and the money exchanged hands?’
From the above questions, you can tell that Counsel knew the facts but did not want to be the witness (disallowed in law). Counsel resorted to asking leading questions to show court that the witness knew the true account but is changing it to affect Counsel’s client’s case/defence.
The Ugandan position on hostile witnesses
The Civil Procedure Rules S.I 71-3 of Uganda regulates the manner in which court process handles witnesses. Under Order 16, the law provides for ‘Summoning and attendance of witnesses’.
Order 16 Rule 7 states that;
‘Any person present in court may be required by the court to give evidence or to produce any document then and there in his or her possession or power.’
Witnesses follow due process. They are often informed of the court matter and generally attend court to witness how the matter is handled. When they are compelled to testify, they have the obligation to give true accounts of the facts.
Unfortunately for Counsel O, his witness deliberately gave a false account, different from the one that he gave Counsel O while they prepared for their defence. That means he turned hostile.
Counsel’s available remedy when a witness turns hostile
During trial, Counsel will request court to declare his witness ‘hostile’ and ask him ‘leading’ questions (section 140 of the Evidence Act, cap 6) to show his hostility.
He may also request court to strike off that witness’ account [witness statement]. If the statement is vital, he will notify court of the key issues court must look at and which ones it must disregard.
While making final submissions, Counsel will remind court that a witness turned hostile and notify court of the prejudice that action made against his client.
Under the Evidence Act, cap 6 of Uganda, the law provides for who should testify (section 117), as a person who is mentally competent to testify. He/she may be an accomplice (section 132) and these frequently are susceptible to becoming hostile.
Counsel is also allowed to evoke Section 154 in case of the following grounds;
- That the witness has become ‘unworthy of credit’;
- ‘Witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his or her evidence’;
- ‘By proof of former statements inconsistent with any part of his or her evidence which is liable to be contradicted’.
A hostile witness versus a witness who fails to appear to testify
Turning hostile is different from failing to appear to give a testimony. These two differing positions are handled separately and differently by court and each has its own implication.
Whereas a witness who fails to appear in court may be subpoenaed to attend or arrested once a warrant of arrest is issued, a hostile witness may be held in contempt immediately because of his/her presence in court at the time he/she turns hostile; and often at the time Counsel declares him/her hostile.
Hostile witnesses are rare occurrences but very possible. In critical matters, they appear when some *intimidation, *threats etc have been made against them or *bribery given to them to alter the course of the trial.
For Counsel O, I’m glad that he handled the matter well and will be ready next time he faces hostility from a witness. And hopefully, after the injunction, his client will receive his property when court examines the evidence on record, in his favour.
BY ATUHAIRWE AGRACE
This article appears in our digital law newsletter, The Deuteronomy Vol 6, Issue 1 of June 2nd, 2017
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