The
giving of oral testimony or testimonial evidence and the production of
documents in appropriate cases is done through witnesses.
The law recognises the necessity of compelling persons to testify in
appropriate cases. A person who can be compelled to give evidence is said to be
a compellable witness while others who cannot be compelled are said to be
non-compellable witnesses.
Credibility, on the other hand, relates to the weight or value to be
attached to the evidence of a witness.
COMPETENCY OF WITNESSES
The general rule governing competency of witnesses is provided for in section
155(1) of the Evidence Act.
It provides thus:
“All
persons shall be competent to testify, unless the court considers that they are
prevented from understanding the questions put to them, or 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”.
From the above, the
following persons are, however, not ordinarily competent to testify unless the
court is satisfied that they possess the requisite mental cognitive ability so
to do.
a)
Children
of tender years;
b)
Persons
of extreme old age;
c)
Persons
suffering from disease of the mind or body.
However, dumb
witnesses are competent as they may communicate in sign language subject to
interpretation – Section 156 of the
Evidence Act.
In all the foregoing
category of persons, only a child witness is expressly required to undergo a
test of competence following the procedure prescribed in section 183 of the Evidence Act.
The procedure is as follows:
STEP 1:
The court will put questions to a child to test his cognitive ability
[intelligible questions] to see if he can provide a rational answer. The
question need not be related to any fact in issue
STEP 2:
If he passes the first test, the court will then ask him if he understands the
duty of speaking under oath or the nature of an oath.
STEP 3: He will be given an opportunity to testify
on oath if he passes the second test and such testimony is as good as that of
an adult.
It
shall not require corroborative evidence in order for the court to convict the
accused person based on the evidence alone – section 183(2).
STEP 4: If he fails the second test, he shall not
be put on oath but will give unsworn evidence. Such evidence if it is the only
credible evidence on record will require corroborative evidence – section 183(2)
Where
the child fails the first test he shall not be considered competent and
therefore not allowed to testify so that the issue of corroboration becomes
immaterial.
A
trial court is not bound to administer this preliminary test all the time.
Judicial attitude shows that the prescribed test is only a guide to determine
the child's cognitive ability and of the duty of speaking the truth. Thus, if a
court allows the child to testify without administering the test, the error
could be grave but it could be cured if the records of the court indicate that
the trial judge was otherwise satisfied that the child was competent to either
testify on oath and give sworn evidence or competent to testify and give
unsworn evidence. Thus the procedure can be abridged – Okoye v. State (1972) 1 All NLR (Pt. 2) 500; Okoyonmo v. State
(1973) NMLR 292; Okon & Ors. v. State (supra).
These foregoing
practical steps have been further elaborated upon by the Supreme Court on a
number of cases but in particular in Okon
v. The State (1988) 1 NWLR (PT. 69); and Mbele v. The State (1990) 1 NWLR (PT. 145) 484. These two cases are noteworthy. Either of them has articulated the entire
test that is to be followed.
Note, however, that
the trial court is neither obliged to strictly follow the steps outlined above
sequentially nor is it obliged to record how the test was conducted. It is
sufficient if the record of proceedings show that the trial judge was satisfied
that the child possessed either the requisite mental capacity or understands
the duty of speaking the truth or both conditions so as to make him competent
to testify either on oath or as an unsworn testimony, as the case may be. In Sambo
v. The State (1993) SCNJ 128, the Supreme Court held inter alia that non-observance of the
procedure laid down in section 155 is not a mere irregularity but one which
will render then evidence given in breach thereof, a nullity.
WHO
IS A CHILD OF TENDER YEARS?
The Evidence Act does
not define a child of tender years. Over the years trial courts have been faced
with a challenge of determining who is a child of tender years for the purpose
of the Evidence Act.
However, the Supreme
Court in Okon v. The State (supra)
decided that for the purpose of section 183 of the Evidence Act, a child of
tender years is any person below the age of 14 years. This decision has been followed in a number
of cases. This was also the case in Onyegbu
v. The State (1995) 4 NWLR (PT. 391) 510; Ogunsi v. The State (1994) 1 NWLR
(PT. 322) 10.
Note that in respect
of persons of extreme old age, persons suffering from disease of the mind or
body or of weak intellect appear not to be accommodated anywhere in Section 183
of the Evidence Act and there is nowhere under the Act that there is express
provision for testing their competence. However, taking into account the
decision in Okolomo v. The State, where
it was held that competence has to do with the ability to provide rational
answers to questions and not so much the age of the witness or his health
conditions. It is appropriate to reason that these other categories of persons
should undergo the same or similar test as that prescribed for a child of
tender years.
THE
COMPETENCY OF AN ACCUSED PERSON
An accused person is
not competent to give evidence for the Prosecution but he is competent to
testify for the Defence at all times – section
160 of the Evidence Act. However, if the Prosecution wants to use an
accused person as a witness, it is necessary that there should be more than one
accused persons charged with the same offence. Thus, the co-accused becomes
competent once he has pleaded guilty to the offence, whether or not he has been
sentenced after pleading guilty.
But in practice,
judicial policy favours a situation where he should have been sentenced before
he is brought in as a witness for the prosecution as it will remove any
suspicion that he accepted to give evidence in order to mitigate the expected
sentence – Umole and ORS. v. I.G.P
(1957) NRNLR 28; Enahoro v. The State (1965) 1 All NLR 125.
COMPETENCY
OF LEADING COUNSEL
Counsel is a competent
counsel for his client but judicial policy discourages this. However, if he must give evidence, he must
withdraw from his employment as counsel in the case because the rules of
professional conduct restrain him from putting himself in a position where he
cannot adequately act as counsel in a case he is handling – Idowu v. Adekoye (1960) WNLR 210.
COMPETENCY
OF SPOUSES
All spouses are
competent witnesses for the Defence but only a spouse of a polygamous marriage
is a competent witness for the Prosecution – section 161 of the Evidence Act.
A spouse of a
monogamous marriage is not ordinarily a competent witness for the prosecution
except if the other spouse who is on trial gives his consent that the other
spouse should testify against him or her.
For our purpose,
Muslim marriage is treated as monogamous marriage – Section 161(1) of the Evidence Act. Note that in regard to
monogamous marriage, the consent of the accused person who is on trial is not
required before the other spouse gives evidence against him where the charges
are in respect of the following offences:
a)
Violent
assault on the same spouse whom the prosecution has called to give evidence;
b)
Offences
relating to the property of the same spouse who the prosecution has called to
give evidence; or
c)
Sexual
assault, defilement and similar reprehensible acts – section 161(1)(a)(b)(c).
SUBPOENAS AND WITNESS SUMMONS
Subpoena is a latin word – ‘sub’ means under; and ‘poena’ means
penalty.
Subpoena is a writ of summons
issued in an action or suit requiring the person to whom it is directed to be
present at a specified place and time, and for a specified purpose, whereby a
penalty will be given for failure to appear.
USES –
In the High Courts,
subpoena is usually used to compel a witness to attend court. The two major types are:
1)
Subpoena
ad testificandum; and
2)
Subpoena
duces tecum.
Subpoena ad
testificandum is used
to compel a witness to attend court and testify in court. Whilst Subpoena
duces tecum is used to compel a
witness to attend court with certain documents to give evidence.
It should however be
noted that by virtue of sections 192 and
193 of the Evidence Act, where a person is summoned to produce a document
without being summoned to give evidence, if he causes the document to be
produced in court, the court may dispense with his personal attendance. For
example, if the Inspector General of Police is summoned to produce a document
through subpoena duces tecum, he can comply with the subpoena by causing
the document in issue to be produced by any of his subordinates. Also, that a
person so summoned to produce a document does not become a witness stricto
sensu by the mere fact that he produced the document and he cannot be
cross-examined unless and until he is called as a witness.
PROCEDURE FOR ADOPTING WITNESS’
STATEMENT ON OATH
1.
The
court is to ask a witness as soon as he steps into the witness box whether he
is a Christian, or a Moslem, or whether he belongs to any other religious body.
2.
If
the witness belongs to any of the above, he is sworn in accordance with the
provisions of the Oaths Act
3.
Where
a person declares to the court that his religion does not permit the taking of
an oath, the court may allow such person to give evidence not on oath provided
the court thinks it just and expedient
4.
Also,
a person who has no religious beliefs (e.g. a pagan) may be allowed to give
evidence without taking oath – section
181 of the Evidence Act.
Where evidence not given upon oath has been received, a
record of this and reasons for such reception must be recorded in the minutes
of the proceedings – section 182(2) of
the Evidence Act.
PREPARING WITNESSES FOR TRIAL
To prepare a witness for trial, pre-trial interview needs to be
conducted.
The purpose of pre-trail interview is to acquaint the witness with
court decorum and to teach him how he is to present his testimony in court.
It should be conducted ahead of the date fixed for trial to determine the
line of evidence-in-chief or cross examination, whichever, is the case.
It should also be conducted a day before the hearing of the case in
order to refresh the memory of the witness. (click on any picture on your right or left hand side for more insight)
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