CIVIL PROCEDURE LECTURE 10 7TH July 2006.doc

3 if the burden of an issue raised is on the

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3. If the burden of an issue raised is on the defendant so the court may direct that the defendant begins. Where there is a dispute as to who should begin, the court should give directions but ordinarily the court will direct the party who has most issues to prove to begin. The rule is he who alleges must prove. Where the defendant has the right to begin, the procedure will be the same as if it was the Plaintif beginning. Where in the process of making final submissions to the court, where people cite authorities which had not been referred to earlier the court will give the other party time to look at the authorities being cited, the purpose is to be fair.
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Examination of witnesses – there are 3 stages Examination in chief Cross examination Re examination The purpose or object is to elicit facts favourable to the case for the party who has called the witness. In examination in chief, one must not ask leading question except in respect of matters which are not in dispute. Examination in chief must not be conducted in an attacking manner but if the witness becomes hostile then one can attack the witness but ask the leave of the court to declare the witness hostile and destroy the credibility of the witness. Cross examination has 3 aims and it is here that shows skills as courtroom advocate, to test and cast down the testimony given by witness, to elicit for further particulars favourable to your case or to impeach the credibility of witness. It is at this stage that one builds up a case on which to rely on. The scope of cross examination is wide that leading questions may be asked, one may even ask the witness on previous statements that may be inconsistent with what he saying at the witness box. One need not be too long in cross, once the purpose for which the cross was intended then one need not spend any further time on it. The best witnesses are children and ladies, the worst are policemen and advocates the reason being that children are able to distinguish between what they were told and what they know. Ladies tend to be emotional, policemen are the worst and lawyers are terrible. Re examination – the object is to heal wounds opened during cross examination, you cannot ask leading questions at this stage and you cannot conduct it in an attacking manner. If there has been proper damage in cross, no wound can be healed. The matters must be restricted to those in cross examination. The court may ask questions to clarify some issues. The evidence of witnesses is taken orally in open court, whereas questions are asked and answers are given, the judge or magistrate writes in the narrative unless the party has specifically asked that a particular question be noted. Order XII Rule 12 – if there is an objection, the court should record the objection the answer and name of person raising the objection. When the court is taking down evidence it should also record remarks in the demeanour of witnesses.
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Evidence de bene esse – Order XVII Rule 11 provides that the witness can apply for taking of evidence before trial. It is by chamber summons and anytime before institution of a suit. The purpose of this evidence is to allow the witness to testify before departure i.e. if they are dying.
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  • Fall '16
  • mr kuloba
  • Evidence law

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