LAW OF EVIDENCE (LAW 406)

Notes by Dr M.S Mustapha

COMPETENCE AND COMPELLABILITY OF WITNESSES

Competence can be defined as the legal ability to give evidence. Compellability on the other hand
can be defined as the legal obligation to give evidence. Thus a person who is compellable is obliged
by law to give evidence.

Thus, for a witness to be compellable, he must first be competent to give evidence. In Metuh v CBN,
(2018) 3NWLR (pt 1605) 1 at 56, the court stated that a witness can only be compelled to testify if he
is competent. According to Ige JSC in that case,

“ persons who can be classified as not compellable are persons who are legally disqualified from
giving evidence or persons with statutory or constitutional immunity, who enjoy immunity under the
constitution of the federal republic of Nigeria 1999 as amended and who cannot be compelled or
amenable to any court process while in office are the president, vice president, Governor, deputy
Governor. No writ of subpoena or other summons can be issued against them or issued for service
upon any of them personally during the period or tenure of their office. In other words, persons in
that category are competent witnesses in civil or criminal proceedings but are not compellable
witnesses by any summons or process issued out of any court of law”

By Section.175 of the Act “All persons shall be competent to testify, unless the court considers that
they are prevented from understanding the questions put to them or by giving rationale answers to
those questions by reason of tender years, extreme old age , disease, whether of body or mind or
any other cause of the same kind”

The section further states in Section 175(2) that a person of unsound mind is not incompetent to
testify until he is prevented by his mental infirmity from understanding the questions put to him and
giving rationale answers to them

Thus, all persons are competent to testify in a judicial proceeding unless the court considers that
they are prevented from giving rational answers to those questions by reason of tender years,
extreme old age, disease, whether of body or mind or any other cause of the same kind. However,
such persons become competent as soon as the disability causing the incompetence is removed.

Thus a person of unsound mind, or a drunkard is only incompetent during the period he is insane or
drunk. A lunatic is competent to give evidence during lucid hours or intervals. Generally, it should be
noted that every person is a competent witness in a judicial proceedings, but not every person is a
compellable witness, so also every compellable witness is a competent witness but not every
competent witness that is compellable. Thus, when a competent witness is compellable he becomes
both competent and compellable to testify.

Note that, the attendance of a witness at a Magistrate Court is compelled by summons and in the
High Court by subpoena. Also, in a civil case a party cannot be compelled by the court to call a
witness nor may the court itself call a witness, however in criminal proceedings, the court may call
any witness without the consent of the parties.

Generally, persons who are competent are compellable although such persons cannot be compelled
to answer questions tending to show that they have committed a crime not under investigation by
court. Also a compellable witness who fails to appear to testify may be penalised for contempt of
court.

However, a competent witness does not lose his competence simply because he has listened to a
part or even all the evidence that has been given out in the case. It is only the weight that the court
will give to his evidence that will be affected.

SOME EXCEPTIONS TO THE GENERAL RULE

PRESIDENT AND GOVERNORS:

The Head of state, his Deputy and State Governors and their Deputies are competent, but they
cannot be compelled to give evidence in judicial proceedings. See Section 308 of the 1999
Constitution. It should however be noted that the protection stated in that proviso, is that of the
person of the holder of the office as opposed to the office itself.

Thus, such preemptory applications like mandamus and certiorari could lie against the head of the
Federal Military Government or a civilian president. This was clearly demonstrated by the case of
Shugaba v. President of Federal Republic; Rotimi v. Mcgregor (1974) 2.SC page 133.

DIPLOMATS:- Diplomats are accorded immunity from suits and legal process under section 1 of
Diplomatic Immunities and Privileges Act 1963. However, if they waive their immunities they would
be competent witnesses.

S. I (I) of the Diplomatic Immunities and privileges Act1962 exempts diplomatic agents, their families
and staff from any form of law suits.

This diplomatic Immunity may however be waived by the provisions of Section (2) of the same Act.

In the same vein, S.3 and 4 of The Act also accords Immunity to High Commissions of Common
Wealth countries their staff and families.

Section 11& 15 of The Act 1962 also gives immunity to representatives of some international
organizations

A CHILD OF TENDER AGE: A child of tender age who is incapable of understanding the questions put
to him and incapable of giving rational answers to such questions is not a competent witness.
Whether a child is sufficiently intelligent to understand the questions and give rational answers to
them must first be determined in the open court before being allowed to give evidence or declared
incompetent. In criminal cases the court should first put preliminary questions to the child, which do
not necessarily have to do with the case before the court. Ability on the part of the child to pass this
test is an indication that the court can go further in determining through further questions, whether
or not the child understands the nature of an oath. In civil, children who do not understand the
nature of an oath are incompetent.

In criminal cases a child who does not understand the nature of an oath is a competent witness
provided he understands the duty of speaking the truth. See Section 209. However, in both civil and
criminal cases children who do understand the nature of an oath are competent to give sworn
testimony. Please remember that an accused person cannot be convicted of an offence on the
unsworn testimony of a child unless corroborated by some other evidence implicating the accused.
See R. v. Uche (1935) 2 WACA 287.

As provided in section 175(1) of the evidence Act, children who cannot understand questions put to
them by reason of tender years are not competent witnesses. The court however has the discretion
to investigate the child’s ability to understand questions put to him or her. If the child succeeds the
assessment for determining his or her competence, he can then be a witness but where the child
fails the assessment, such shall not be competent to be a witness.

In Sambo V The state (1997), 12 SCNJ 53, a child had testified on oath without the trial judge carrying
out the stipulated tests under section 155(1) of the old evidence Act, which provides for assessing
the childs ability to understand questions put to him or her. The learned trial judge observed on the
record that in his own examination, the child had possessed enough intellect to understand the task
he was to perform in the witness box. The supreme court quashed the appellant’s conviction and,
held that the observations on the record of the trial judge did not adequately comply with the
provisions of S155(1) of the old evidence Act and therefore, failure to comply did not only amount to
an irregularity but a serious error that voided the evidence of the child who was a witness in the
case.

Oath and Competence of a child

Before a child can be put on oath, questions relating to whether he understands who God is and the
importance of telling the truth may also be asked to determine the competence of the child being
put on oath. The judge may ask questions not relating to the case in question to assess the child’s
general understanding. In Willam Omosibve V Commissioner of police (1959) WRNLR 209 at 211, the
court stated that the fact that the preliminary test provided to determine the competence of a child
to give evidence was omitted amounted to an irregularity by the trial magistrate. However, some
other cases seem to have isolated Sambo’s case, as well as Omosibve’s case on this issue. Thus in
Peter Vs the state, 1997, 12SCN, the PW1 who was 9 years old at the time the offence was
committed was 13 years old at the time she was put into the witness box to testify. The trial judge
however did not carry out any preliminary test before taking her evidence. In dismissing an appeal
on the issue of not carrying out the preliminary tests, the supreme court held that the need for a
preliminary inquiry under sections 155(1) and 183(1)of the old evidence Act, would only be
necessary when the trial judge is of the view that due to his tender age, a witness ought not be
sworn which would then require corroboration. Additionally, the supreme court added that in that
case, the trial judge was right to cause the witness to be sworn since at the age of 13 years she was
reasonably expected to understand the questions put to her and to understand the nature of the
oath administered on her, though by law a child of tender age. According to Onu JSC in delivering
the lead judgement,

“Where, in opinion of the court, a child understands the nature of an oath it is not necessary for the
court to carry out further preliminary investigation for the purpose of ascertaining whether the child
has sufficient intelligence to satisfy his giving such evidence and understands the duty of speaking
the truth as prescribed by section 183 of the Evidence Act... Thus, although in Sambo v. The State
(supra) the appellant's appeal was allowed, in the instant case, I will loath to interfere with the
discretion exercised by the trial court which the court below, rightly in my view, affirmed.... By failing
to carry out preliminary investigation before taking the evidence of P.W.1, in the instant case there
is no error of a fundamental irregularity rendering the evidence so received worthless and of no use
as in Sambo v. The State (supra) and Agenu v. The State (1992) 7 N. W.L.R. (Part 256) 749
respectively.
Thus, considering the above as well as other judicial and academic opinion both in Nigeria and other
jurisdictions, competence to testify is not a matter of age but intellectual capacity. See also, Solola vs
the state (2005) All FWLR (PT 269)1751 S.

PERSONS OF WEAK INTELLECT: Those whose intellect is impaired by mental illness, drunkenness,
drug addiction and extreme old age will be classed incompetent if their disability means that they
cannot understand the implications of the oath.

DUMB WITNESS

By Section 176 Evidence Act, a witness who is unable to speak may give his evidence in any other
manner intelligible by writing his answers to questions or by making signal, which can be
interpreted. The writing or signs, which must be done in court, are regarded as oral testimony.

ACCUSED PERSON

An accused person may appear as a witness for the prosecution, as a witness for himself and also as
a witness for a co-accused.

The general rule under the common law is that an accused person is incompetent as a witness for
the prosecution, whereas he is a competent witness for the defence at every stage in the
proceeding, whether the person so charged is charged solely or jointly with other person or persons.
Generally, accused is a competent witness for a co-accused. Where he gives evidence he may be
asked any question during cross-examination even though such questions tend to show that he has
committed other offences.

An accused person can be a competent witness for the prosecution but this can only arise where
more than one person is charged with the same offence and one of the co-accused persons give
evidence for the prosecution. It is necessary that the co-accused must have pleaded guilty to the
offence before being called as a witness against another co-accused. Though it is also desirable that
he should be sentenced before being called so as to remove the “suspicion” that his evidence may
be coloured by the hope of getting a lesser sentence because of the evidence which he gives,
evidence of the co-accused is not vitiated on the sole ground that he had not been sentenced before
his evidence.

In Umole v. Police (1957) N.R.N.L.R 8, the appellant and Z were charged with stealing. Z pleaded
guilty and was convicted but before he was sentenced he was called as a witness for the
prosecution. Brown C.J.(North) said “we have no doubt that at the time when he gave his evidence
he was not on trial. When he pleaded guilty he was convicted on his own plea; there was no issue to
be tried.....He was not being tried jointly with the appellants, and he was therefore a competent
witness for the prosecution”.

The practice of leaving a sentence hanging over an accused’s head while he is called to give
evidence for the prosecution was condemned in Enahoro v. R (1965) 1 All N.L.R.125. See also R v.
Michael Omisade and Ors (1964) N.M.L.R 67. In this case, the accused persons were indicted for
conspiracy to commit treason and for treasonable felonies. Two of the witnesses for prosecution
were facing, in the Magistrate’s Court, charges for being in illegal possession of arms imported into
the country in pursuance of the conspiracy and for the purpose of committing treason i.e. to levy
war against the country.
The Federal Supreme Court held that the two witnesses were competent witnesses. The court
however, viewed with the greatest disapproval the method adopted by the prosecution in keeping
the charges in the Magistrate’s Court hanging over the two witnesses until after they had given their
evidence in the case in High Court. See also Ukut v. State (1965) 1 ALL N.L.R.306.

ACCOMPLICE

An accomplice or ‘participes criminis’ is competent to give evidence for prosecution. By Section 198
of the Evidence Act “A conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice: provided that in cases tried with a jury when the only proof against a
person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any
material particular implicating the accused, the judge shall warn the jury that it is unsafe to convict
any person upon such evidence, though they have a legal right to do so and in other cases the court
shall so direct itself.”

This warning enables the court to approach his evidence with a sense of caution. But if the court
believes the evidence of the accomplice it may convict on the uncorroborated evidence. It “must
consider whether there are no features in his conduct which should make court hesitate in taking
the risk of doing what is unsafe.” Note that a co- accused giving evidence in his own defence, which
incriminates a co-accused, is not an accomplice- Adebowale v. Police (1941) 7 W.A.C.A. 142. The
evidence should be corroborated

EVIDENCE OF SPOUSES

The Evidence Act draws a distinction between the spouse of a monogamous marriage and that of a
polygamous one. The spouse of the accused person is a competent and compellable witness
whether for the prosecution or for the defence- Section 182 of the Evidence Act.

Polygamous marriage includes Muslim marriage with the distinction that no spouse to a Muslim
marriage is compellable to disclose any communication made to him or her by the spouse during the
subsistence of the marriage. But where an accused contracted a monogamous or Christian marriage,
his or her spouse is neither competent nor compellable to testify for prosecution except on the
application of the person charged i.e. the husband or wife, except on charges arising from the
offences specified in section 182(1) (a) (c) of the Evidence Act.

Since the presumption is that any marriage in Nigeria is monogamous, the party calling the wife of
an accused person as a witness must prove that the marriage between her and the accused is not
monogamous- See Akpolokpolo v. Police (1960) W.N.L.R 89: IDIOUG v. S.R (1950) 13 W.A.C.A.30.

This presumption is not rebutted by the mere fact that the witness was sworn on a Koran or from
religious belief accepted by her- USENI LAMU v. THE STATE (1967) N.M.L.R 107.

The spouse of a monogamous marriage is a competent witness for the defence. It is left for the court
to decide what weight it will attach to such testimony. There is no presumption from means or mode
of swearing that marriage is polygamous.

PARTIES TO CIVIL SUIT

By section 178 of the Evidence Act, the party to a civil action or the husband or wife of any party to
the suit is a competent witness for the plaintiff or for the defendant- See Elias v. Disu (1962). All N.L.
R214, Ifeajuna v. Ifeajuna (1997) 7 N.W.L.R (PT.514) 405. But see the proviso to section 148 which
states “Neither the mother nor the husband is a competent witness as to the fact of their having
sexual intercourse with each other where the legitimacy of the woman’s child would be affected,
even if the proceedings are instituted in consequence of adultery, nor are the declaration by them
upon that subject deemed to be relevant, whether the mother or husband can be called as a witness
or not”.

What this appears to mean is that even though you are sure there was no sexual connection
between you and the mother of the child resulting in the birth of the child, you are not competent to
say so. But note that under Islamic law, parties are not competent witnesses in their respective
claims. See Jatau v. Mailafiya (1998)1 N.W.L.R.(PT.535)P.682.

TELEGRAPH OPERATORS

Persons employed in a telegraph office are incompetent to give evidence of the contents of the
telegram they transmit or present for transmission except on the written consent of the person by
whom the telegram is sent or that of the addressee- Section 14 of the Telegraph Act. This section
does not apply where a person is being tried for a felony punishable by death or imprisonment for
three or more years- Section 15 (1) (b) of the Telegraph Act.

COUNSEL

Although there is nothing in the Evidence Act which prevents a counsel from giving material
evidence for his client, it has been held that a counsel should not put himself in the embarrassing
position where he has to be counsel and witness in the same matter and as Quashi- Dun C.J. (West)
observed in Idowu v. Adekoya (1960) W.N.L.R 210 such procedure is not only contrary to the
practice of the courts but it is also an irregularity “which renders a trial unsatisfactory”.

It is also against the ethics of the legal profession for counsel appearing for one party to give
evidence for the opposing party. Also, “It is improper when a firm of solicitors is appearing for a
client for one member of the firm to hold the brief of another counsel appearing on the other side to
sign any process of court on behalf of or for an opposing counsel” Ademuyin & Ors v. Mosadugan
Ishola (1958) W.R.N.L.R 110, 114 Per Ademola C.J. (WEST).

Similarly, it is irregular for counsel to swear to affidavits in the course of the proceedings in a case in
which he is appearing if the facts deposed to are material to the determination of the facts in issue
between the parties. See Banque La’afrique Occidental v. Alhaji Baba Sharfari & Ors. (1962) N.N.L.R
21. also Horn v. Richard (1963) N.N.L.R 67.

In Aghahowa v. Aguebor (1957) W.R.L.R 69 it was held that a barrister ought not to accept a brief
from a former opponent if he knows of anything, which may be prejudicial to the client in the latter
litigation.

RELATIONS

Relations of parties in Civil and Criminal proceedings are competent witnesses in such proceedings.
But in a criminal proceeding the court should be circumspect and exercise caution in accepting the
evidence of such witnesses. Oguonzee v. State (1997) 8 N.W.L.R (Pt.518) 566; Onafowokan v. State
(1986) 2 N.W.L.R (Pt.23) 496
Note that under Islamic Law a witness may be disqualified from giving evidence on grounds of
consanguinity to the parties. See Waziri v. Waziri (1998) 1 N.W.L.R. (Pt.533) 322.

In summary, Competence deals with the status of a witness to testify in court proceedings while
Compellability deals with the powers of the court to force/compel a competent witness to attend
court proceedings purposely to testify or tender (a) document(s)”. Therefore, for a person to be
compellable to testify in court, he must first qualify as a competent witness.

A competent person may, however not be compellable if the person falls within the class of persons
who enjoy privilege or immunity from civil or criminal proceedings.