The place and mode of trial is usually determined by type of trial and proceedings. If you make an application by summons, then you will be heard in Chambers.
Procedure 1 – where defendant elects not to call evidence
The Plaintiff or advocate makes an opening speech referred to sometimes as an opening statement. After that the plaintiff witnesses are called, examined cross examined and re-examined. After that the plaintiff or his advocate sums up the case by making a closing speech. After that the Defendant states their case and makes a closing speech.
Procedure 2 – Defence elects to call evidence
Advocates for the plaintiff makes an opening statement, the plaintiff witnesses are called, examined, cross-examined and re-examined. After that the defendant’s counsel makes an opening statement. After that the defendant’s witnesses are called, examined, cross examined and re examined. After the Plaintiff or his advocate sums up the case by making the closing speech. Thereafter the defendant sums up the case and makes a closing speech also. The Defendant can reply to the plaintiff’s closing. The reply only covers new ground.
In cases where there are many defendants and many plaintiffs the same procedure will apply but if the defendants are represented separately, then the counsels will separately make their submissions separately by order of appearance. Cross examination of witness will also follow the order in which they proceed. Co plaintiffs will normally be represented by the same counsel.
Who has the right to begin the case? Order XVII Rule 1
The plaintiff or the applicant has the right to begin. Of course there are certain exceptions to that right to begin. 1.Where the Defendant admits the facts alleged by the plaintiff but raises an objection on a part of law. In such a case the defendant should be entitled to begin by submitting on that part of the law. For example, suppose one raises a plea of Res Judicata? In such a case one can say that they have sued the defendant by they have raised an objection on the part of the law a and in this case, the Defendant has the right to begin on a plea of res judicata. Or the Defendant raises the plea of limitation, they have the right to submit on that point of law. However it is advisable that one should always put it in the pleadings whatever plea they intend to raise.
2.Where the Defendants admits the facts alleged by the plaintiff but states that the plaintiff is not entitled to the relief that they seek for example drawn from Seldon v. Davidson in which case the plaintiff brought proceedings for recovery of a debt. In their defence the defendants admitted that they received the money from the plaintiff but pleaded that the money was a gift. In this case the defendant has a right to begin.
Suppose there are several issues? May be it could be many different parties and there is a dispute as to who should have the right to begin? The court will direct that the party with the burden of proving the majority of issues shall begin. OPENING STATEMENT
What should it contain
It is usually a brief outline of either the defendant’s or the plaintiff’s case, usually it will state the facts simply. They will be telling the court the witness that they intend to call and will be giving a preview of what they intend to prove. Usually this is an introduction to the entire trial and it is important that it is interesting, logical, believable and in a narrative form. Usually it is not necessary for the Judge to record the opening speeches unless one raises a point of law. It is important that a note should be made in the court record that an opening speech was made. an opening speech must not contain evidence. It should just be limited to a statement of basic facts that the parties intend to prove or rely on as defence.
After you make the opening statements, you move on to examination in chief.
EXAMINATION OF WITNESSES
Examination in Chief
When you call a witness there are 3 stages
1.Examination in chief
Examination in Chief
The object of examination in chief is to elicit facts that are favourable to the case of the party calling the witness. In other words the exam in chief is when you question your first witness. Sometimes the plaintiffs themselves. Normally they will be giving evidence that will be favourable to their case. It is governed by two rules (a)The witness cannot be asked leading questions – these are questions that suggest the answer expected of that person. For example you cannot ask Was your business running into financial difficulties last year? You should ask what was the financial position of your business last year? The art of knowing whether a question is leading is learnt with experience. (b)The examination must not be conducted in an attacking manner. Usually at cross examination you can attack but you cannot do that to your own witness. If your witness turns hostile, you can ask the court to declare the witness a hostile witness and once the court does that, you can then attack the witness.
When a witness is declared hostile
(i)You will be allowed to impeach the creditability of that witness; (ii)You can ask leading questions (iii)You can ask them questions that touch on their truthfulness and even their past character and previous convictions. (iv)You can also be able to examine on certain issues by leave of the judge e.g. you can question the hostile witness on statements they made previously which is inconsistent with their present testimony. This can help to show that the witne3ss is giving conflicting evidence which the court is allowed to resolve when they are taking the evidence into account. You must take witness statements. If they give evidence inconsistent with the statement that they signed, you can impeach their credibility and produce the witness statement.
There are 3 aims of cross examination
1.To elicit further facts which are favourable to the cross examining party; 2.To test and if possible cast doubt on the evidence given by the witness in chief; 3.To impeach the credibility of the witness.
Cross examination – the scope is wide one is allowed to ask leading questions, question a witness on previous testimony, it is not restricted in any way. A good Advocate will never forget the virtue of courtesy.
Once you have examined your witness in chief, the other side cross-examines your witness. The re examination is a kind of retrieval process. This is when you try to heal the wounds that were opened up in cross examination. Most important, re-examination is strictly restricted to matters that arose at cross examination. The court also has powers to ask a witness questions for the purpose of clarifying points.
SUBMISSION OF NO CASE TO ANSWER
The defendant may make a defence of no case to answer after the submission by the plaintiff. The Judge must decide whether there is any evidence that would justify putting the defendants on their defence. Usually if the submission of no case to answer is not upheld, the case continues. If the court says that there is no case to answer, that ruling can be challenged on Appeal.
TAKING DOWN EVIDENCE
Usually evidence of witnesses is taken orally in open court under the direction of a Magistrate or Judge, it is normally written down in narrative form i.e. not question and answer form but where there is special reason, the evidence may be in question and answer form. The rule is that the court may on its motion taken down a particular question verbatim and the answer verbatim.
Where either party objects to a question and the court allows it, then the court should record the question, the answer and the objection and the name of the person raising the objection and if they make a ruling they must also record the ruling of the objection raised. Tact is required as you may find that. Sometimes if you object too much you can irritate the Judge. Object only for important things.
In the course of taking evidence, the court may also record remarks made by witnesses while under examination and normally after taking down the evidence the judge will sign that evidence. The courts can also record remarks and demeanour of a witness.
PROSECUTION & ADJOURNMENT OF SUITS
Public policy documents that business of the court should be conducted expeditiously. It is of great importance and in the interest of justice that action should be brought to trial and finalised with minimum delay. Order XVI Rule 1 requires that hearing of cases should be on a day to day basis until all witnesses have testified. However this is not always possible and that is why the court may adjourn a hearing on its own motion or upon application by either of the parties where good course is shown. The rule requires that adjournments can be granted where good cause is shown
Habib V Rajput the plaintiff case came up for hearing, the advocates applied for adjournment on the grounds that their client was absent for some unexplained reasons. The respondent opposed saying that his witnesses were already in court and had come from very far away and it was costing a few thousand shillings to keep them there per day. Was the plaintiff’s reason good cause to adjourn. The court ruled that no sufficient cause was shown and the application for adjournment was dismissed. Kamil V. Merali
NO STEPS TAKEN – Order XVI Rule 6
Under Rule 6, where no application has been made or steps taken for 3 years by either party, the court may order the suit to be dismissed but usually the application should show cause why the suit should not be dismissed. Any case which is dismissed under Rule 6 can be instituted afresh subject to rules of limitation.
Victoria Construction Co. V. Dugall
The court considered the meaning of steps taken within the meaning of Rule 6. the Case was filed in November 1958 and in 1960 the Applicant decided to refer the case to an arbitrator but attempts to resolve the dispute through arbitration failed. The matter went to sleep until 1962 where the registrar asked the parties to show cause why the suit should not be dismissed. The Plaintiff contended that the steps to seek arbitration amounted to steps taken. The question was whether an agreement to refer the matter to arbitration was a step taken and the court held that that was not a step taken and the case was dismissed. In this case, the court explained
1.That one has to satisfy the court that the suit is ready to proceed without delay. 2.One has to satisfy the court that the defendant will suffer no hardship; 3.That there has been none frequent inactivity by the Plaintiff.
It is advisable at the time the case comes up for hearing to ask that it be stood over generally (SOG) to give you time to go to arbitration and if you are not ready, you can always go back to court and seek an extension. This way there is a step taken.
You are telling the court that you have presented your evidence, that you have proved that so and so is liable and you will also be telling the court that this is the law and if applied to the facts of your case then the law should support your prayers. You will be telling the court of past decisions that support your case. You will reconcile the facts, the law and past decisions that support your case. You make your case in the closing statements.
Courtney from Study Moose
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