Expert witness

In dealing with certain facts of a case, the courts sometimes rely on the evidence of experts in a particular field as it pertains to the case. This is in order to ensure that no stone is left unturned in doing justice. However, the courts are not bound to accept the evidence of an expert and act on it. The courts have the discretion to rely on the expert evidence or to discountenance it. Experts are usually professionals in a given field. They do not necessarily need to be armed with high educational qualifications. It is sufficient if the expert has acquired the relevant level of experience and knowledge.

Usually, the party seeking to rely on the evidence of an expert is the one who calls the expert as a witness. The party bears the cost of such professional engagement. The expert is not expected to work for free. Interestingly, sometimes, charging and accepting payment for the professional service rendered by way of acting as an expert witness have formed the basis for an attack by opposing Counsel. The Supreme Court case of Ashiru v. INEC (2020) 16 NWLR (Pt. 1751) 416 presents a good example. The case was decided on 18 December 2019.

Ashiru v. INEC

In the case, the Appellants (Isa Mohammad Ashiru and Peoples Democratic Party, PDP) challenged the 2019 election of Nasiru El-Rufai (2nd Respondent) as the Governor of Kaduna State. The Appellants’ petition failed up to the Supreme Court. One of the interesting developments in the case was that the Tribunal found that the signatures appearing on the statements on oath of the Appellants’ witnesses (about 132 of them) were not signed by any of the witnesses. To help the Tribunal in this finding was a handwriting expert (RW.3)  who was called as a witness. RW.3  had analyzed the signatures and filed his report admitted as Exhibit R.17. The Court of Appeal upheld the finding. At the Supreme Court, Counsel to the Appellants argued that since the handwriting expert (RW.3) admitted that he was paid for the analysis he did, the Court should disregard his evidence and treat him as a mercenary and/or a mercantile expert witness. In effect, the Appellants’ Counsel was saying that RW.3 was not interested in the justice of the case but mainly interested in making money through preparing a favourable report for his pay masters against any ethical considerations. The Supreme Court found this line of argument as highly offensive and cautioned erudite learned Senior Counsel for such remarks. Generally, the Court found nothing wrong in a professional being hired as an expert witness and being paid for the job done. Eko, JSC was emphatic: 

Chief Wole Olanipekun, SAN of Counsel for the Appellants urged us to disregard (disbelieve?) the RW.3 since he admitted, under cross-examination, that he did not work for free, that he could not have worked for free and that he was paid for his work, culminating in the making of Exhibit R.17. The learned Senior Counsel relying on Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 402 at 439-440, urged this Court to treat RW.3 “as a mercantile expert witness”. We have to be careful here. The handwriting expert, RW.3, is a professional practising his trade. The fact that he admitted that he could not have worked for free and he was paid for his work does not ipso facto make him “a mercenary who would fight any man’s battle for fee as it were”. That would rather be too sweeping and all inclusive to bastardise even the practice of law by legal practitioners or any other regulated professions. Ordinarily, professionals who charge fees for their professional work are not mere mercenaries. They are professionals, subject to ethical rules regulating the practice of their respective noble professions. Akeredolu v. Mimiko (supra) is not an authority for a professional who charged and received fee for his work to be regarded as a mere mercenary either for his expert evidence or work. The ignobility of his practising as a mercenary is one of facts. In relation to this case, I ask: where is the evidence that the RW.3, a handwriting expert who charged and was paid fees for his services, was/is a mercenary? None was pointed to us. (at pp. 438-439)

The Supreme Court was right. The service of an expert witness is a professional service for which the expert is entitled to adequate remuneration. It is illogical to use the fact of payment of professional fees against the expert. If a party disagrees with the evidence of a particular expert, the better approach is to invite another expert to challenge the report. Attempting to discredit the expert witness merely based on receipt of his fees is of no moment.

Other lessons learnt

Irked by the arguments of Counsel to the Appellants, the Court of Appeal had described the contentions as irresponsible. The Supreme Court had to caution on the use of language by the court. Nweze, JSC advised:

Before I conclude, I would like to state that courts must be temperate and civilized in their use of language. I, therefore, entirely agree with Chief Olanipekun, SAN that the lower Court was most unfair to him in the language it used in describing his arguments as irresponsible. That is most unfair, to say the least. (at p. 436)