COMPETENCE & COMPELLABILITY OF WITNESSES


As a general rule, witnesses are the means by which one can prove or disprove evidence in court. Regardless of the kind of evidence, it must be proven through witnesses. It shows clearly that witnesses are the vehicles through which one can prove or disprove evidence. This topic is about determining the competence of these witnesses.
Generally, competence means the ability of a witness to lawfully give evidence in court. A competent witness is a person who is fit, proper, capable and qualified to give evidence. Such a person must not be under any legal disability by virtue of the Evidence Act 2011 or any other statute.

Compellability means when a person can be lawfully compelled to give evidence in court. A compellable witness can’t elect to give or not to give evidence in court. He is under a duty to give evidence. His refusal or neglect to give evidence would amount to contempt of court. A person must however be competent before he can be compellable. Put differently, all compellable witnesses are competent but not all competent witnesses are compellable. A person may be competent yet not compellable by virtue of the constitution or any other enabling law. For example, the President, Vice President, Governor, Deputy Governor enjoy immunity by virtue of S. 308 of the constitution. Therefore, they may be competent witnesses yet not compellable.

Competence of Witnesses Generally
By virtue of S. 175(1) EA[1], every person is 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 mind or of body or any other cause of the same kind.
Apart from the above reasons, no other cause can render a person incompetent to testify. Thus the test for every potential witness is his/her ability to understand questions put to him and to provide rational answers thereto. It is clear that by the foregoing provisions of the law, the court presumes every potential witness before it as a competent witness even though this presumption can be rebutted. This implies that the court does not, immediately a potential witness appears, begin to put questions to test his competency. However, this particular function of the court arises if the court observes that the potential witness before it may not be a competent one.

1.                 Evidence of a person of tender years:
Every child is competent to testify or give evidence 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 their tender years.
S. 209 EA makes a distinction between children who have not attained the age of 14 and those who are 14 and above. The implication of this distinction is that children who have not attained the age of 14 can only give unsworn evidence where the court is convinced that they possess sufficient intelligence to justify the reception of their evidence and that they understand the duty of speaking the truth. This means that the mere fact that a child is seven years old would not preclude him from giving testimony or evidence in court. Thus, the court is not expected to treat all children or persons of tender years as being incompetent[2].
If the child passes the first but fails the second, the child is deemed to be competent but won’t be sworn but if he fails the first, there would be no need to proceed to the second test. Where he passes the two, he will be deemed to be competent and the evidence as given will be placed on equal footing like that of any other adult[3].
On the other hand, a child who has attained the age of 14 years shall give sworn evidence. It is the submission of this writer that while a child who has not attained the age 14 years is subject to both S. 175(1) EA and S. 209(1) EA, a child who has attained the age of 14 years is not subject to S. 209(1) EA.
It is important to state that the testimony of a child who has not attained the age of 14 years must be corroborated by some other material evidence in support of such testimony implicating the defendant otherwise the defendant shall not be liable to be convicted of that offence if based on the child’s evidence or testimony[4].
If the child passes the first but fails the second, the child is deemed to be competent but won’t be sworn but if he fails the first, there would be no need to proceed to the second test. Where he passes the two, he will be deemed to be competent and the evidence as given will be placed on equal footing like that of any other adult[5].
We also have divergent judicial decisions as to whether the judge must record the tests and answers in the record of the court or whether the court should conduct the tests without putting them in the record book. Where the judge decides not to record the child’s evidence, can this be said to be fatal to the evidence the child has given? The most important thing is that the court must put them in the record and the questions must be asked in the open court so that if the case proceeds on appeal, the appellate court can evaluate what transpired at the trial court.

2.                 Extremely Old Persons:
Again, the rule is that extremely old persons are competent to testify unless the court considers that such persons are prevented from understanding the questions put to them or from giving rational answers to those questions by reason of their extreme old age.
3.                 A person suffering from disease of body or of mind
Again, the rule is that these persons are competent to testify unless the court considers that such persons are prevented from understanding the questions put to them or from giving rational answers to those questions by reason of this disease.
4.                 A person of unsound mind:
Here, the mere fact that a person is of unsound mind doesn’t render him incompetent to testify unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them. Thus, a person of unsound he may give evidence when in his lucid interval[6].
5.                 A witness who is unable to speak:
They can give their evidence in any other manner in which they can make it intelligible whether by writing or by signs but such writing must be written and the signs made in open court[7].

Competence of Spouses
A spouse is competent to give evidence in favour of the other spouse. On the other hand, a spouse is not competent to give evidence against the other spouse unless that other spouse gives consent. For instance, if A is standing trial before the court, his wife can give evidence in his favour but she can’t give evidence against him unless he approves. The same goes for the wife where she is standing trial for an (criminal) offence[8]. The policy behind this is the need to maintain matrimonial harmony since it is inconceivable that either of them would give evidence against the other and the two would still live together as husband and wife under the same roof.
There exist exceptions in S. 182 (1) EA. The exceptions mentioned include offences relating to defilement of a girl under 13 years, permitting defilement of girls in his premises, sexual relationships with idiots, procuring defilement of women by threats, fraud or administering drugs, slave dealing, bigamy and child stealing; or where a person is being charged with inflicting violence on their spouse. In all these instances, the other spouse would be a competent and compellable witness for the prosecution or defence without the consent of the person charged. Please also note S. 36 C.C. which deals with offence against the property of a person’s spouse.
Text-writers have queried the reason why the lawmakers restricted the exceptions to sexual infidelity and kindred offences. They have advocated that offences that border on stealing and armed robbery should be included. If you look at the trend in Nigeria today, cases of money laundering, corruption and stealing in public service are growing at an alarming rate. In most cases, a corrupt official will open an account in the name of his couple. In such a scenario, the prosecution may be restricted or prevented from putting the wife in the witness box to testify.

Competence of Accused Persons
Under this category, we look at the competence of the accused to give evidence for the prosecution and the competence of the accused to give evidence in his defence.
With regard to the former, this situation will only arise where we have more than one accused facing trial since it is unlikely that the accused will give evidence for the prosecution against himself. An accused is competent to give evidence for the prosecution against other accused persons provided such accused person has been convicted, acquitted or a nolle prosequi[9] has been entered in his favour[10]. Thus, his fate must have been decided by the court. The reason for this is that the accused should not give evidence with the hope of getting a lighter punishment[11].  But the fact that his fate has not been decided doesn’t mean his case is incompetent.
With regard to the latter situation, every accused person is competent to give evidence for the defence. The accused person(s) enjoy(s) is competent to give evidence at every stage of the proceeding whether the person so charged is charged solely or jointly with any other person[12]. But the point must be stated that an accused is not compellable to give evidence in his own defence[13]. Three options are open to the accused when he is giving evidence in his own defence. The first is to make statement in the dock in which case he can’t be cross-examined. The second option is to enter the witness box where he can be subjected to cross-examination. The third option is to remain mute and his silence will not be construed as evidence against him.



Competence of an accomplice[14]
An accomplice is a competent witness against an accused person and evidence is not illegal merely because it proceeds from the uncorroborated testimony of an accomplice[15].

Competence of Victims and their Relations
The victim of a crime is equally a competent witness provided he is not suffering from any disability stated in S. 175(1) EA. The relatives of victims of offences are competent prosecution witnesses especially if they are eye witnesses or co-victims of the crime.

Non-Compelability of certain witnesses
1.                 The Executive President, the Vice-President, the Executive Governor and the Deputy-Governor:
By virtue of S. 308 (1)(c) of the 1999 Constitution (as amended), no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued”.
The import of the above provision is that the aforesaid persons cannot be compelled to appear before the court to give evidence. In other words, one cannot apply for a writ of summons or other court process to compel the holders of these offices to appear in court as witnesses; even where such application is made to the court, the latter must decline it. This reiterates the point that while such persons are competent, they are not compellable. See Fawehinmi v IGP and IMB Securities Ltd v Tinubu.
2.                 Diplomatic Agents:
This immunity covers High Commissioners, Ambassadors, Consular Agents and other diplomatic staff. By virtue of the Diplomatic Immunities and Privileges Act, every diplomatic staff and their families are accorded immunity from suits and legal processes. The immunity also covers representatives of recognized international organizations.
3.                 Legal practitioners and their clients:
There is no specific provision in the EA which deals with the competence of legal practitioners to appear in a case he is handling.
A legal practitioner is proscribed from disclosing any communication made to him in the course and for the purpose of his employment except with the consent of the client[16]. It goes without saying that a legal practitioner is not expected to put himself in a position where he is likely to be cross-examined or be personally involved in a dispute before the court. In Idowu v Adekoya, counsel who had acted for the defendant throughout the proceedings had at a certain stage given material evidence on behalf of his client. It was held that this was not only contrary to the practice of the court but was a sufficient irregularity which rendered the whole trial a nullity. The court noted that dignity requires a counsel who is aware that he is likely to be called as witness to cease acting as counsel. It is also unprofessional for the lawyer to appear as a witness for the other party in a case. The moment this happens; he is prone to disclose certain information. This immunity also extends to the client. No one can be compelled to disclose to the court any confidential communication between him and his lawyer[17].
There exist exceptions to the above rules. First, a lawyer can sue for his professional fees in which case he may disclose certain things that may have transpired between him and his client[18]. Also, any publication that borders on illegality, crime or fraud may be disclosed by a legal practitioner. Here, a lawyer is under an obligation to make such disclosure. The obligation continues after the employment has ceased[19]. With regard to a client, they may be compelled to give evidence where they have offered themselves as witness.


[1] (1) 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.
[2] In Peter v The State and Solola v The State, the Supreme Court reiterated the point that the biological age of a child is not sufficient in determining whether or not a child is competent.
[3] Please note that a child who has not attained the age of 14 years shall not give sworn evidence. He shall give his evidence otherwise than on oath or affirmation.
[4] S. 209 (3) EA.
[5] Please note that a child who has not attained the age of 14 years shall not give sworn evidence. He shall give his evidence otherwise than on oath or affirmation.
[6] S. 175 (2) EA.
[7] S. 176 (1) EA.
[8] S. 182 (3) EA.
[9] A formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
[10] Umole v Inspector General of Police (IGP)
[11] Ibid
[12] S. 180 EA.
[13] See s. 36(11) of the 1999 constitution of Nigeria as amended.
[15] S. 198 (1) EA.
[16] S. 192 EA.
[17] S. 195 EA.
[18] Barrister Gbenga Akingbehin v Chief Mrs. Thompson
[19] S. 192(1)(a)(b)&(2)

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