2.6C NON-COMPELLABILITY OF CERTAIN PERSONS

• Isochukwu
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• Evidence II

NON COMPELLABILITY OF CERTAIN PERSONS:

Though certain persons are generally (by virtue of Section 175 EA) competent to testify, they are however not compellable to give evidence. They include:

1. Presidents, Vice-President, Governor, Deputy-Governor: They are competent[1] but they are not compellable by virtue of Section 308 of the 1999 Constitution which immunises them from criminal and civil suits in their personal capacities while in office-Tinubu V IMB Securities. But Section 308(2) allows them to be sued in official capacity. In Gani Fawehinmi V IGP the court noted that this does not preclude the office holder from being investigated. Col Rotimi V Magregor.
2. Diplomatic Agents, Consular Officers and Members of their Family: They are granted immunity from legal process by Section 1 and 2 of the Diplomatic Immunities and Privileges Act. Therefore, they cannot be compelled to testify-Zabusky V Israeli Aircraft Industries. Cramer Italo V Government of Belgium. Although the immunity may be waived by the diplomatic officer provided his government consents-Section 2 and 15 DIPA. Trendtex V CBN
3. Legal Practitioners: Though they are generally competent[2]. He should not be compelled to disclose communications made between him and his client-Section 195 EA 2011, In Elebanjo V Tijani, the court advised that he should withdraw from the case before testifying. He should not put himself in a position where he is likely to be cross-examined-In Idowu V Adekoya doing so amounted to an irregularity which rendered the trial null. Also Banque L’Afrique Occidentale V Alhaji Haba Sharfadi and Ors. Horn V Rickards[3]; Furthermore, he should not testify as a witness to the opposing/adverse party (once he has been briefed) being contrary to the ethics of the legal profession-Gachi and Others V The State[4].
4. Bankers: under Section 177 EA A banker or an officer of a bank or other financial institution shall not, in any legal proceeding to which the bank or financial institution is not a party, be compellable to produce any banker’s book or financial book, the contents of which can be proved in the manner provided in Sections 89 and 90 of this Act, or to appear as a witness to prove the matters, transactions and accounts recorded in such book, unless by order of the court made for special cause[5]–R V Dadson. Williams V Williams The courts have given various interpretations of what a banker’s book is but the definition in Section 258[6] should be our guide.
5. Judges, Magistrates and Court Clerks: Are NOT competent or compellable to testify concerning a matter he had either previously dealt with or on which he is currently presiding-Elabanjo V Tijani. This rule is traceable to the English common law cases of R V Harvey, R V Gazard, R V Morgan[7].

However, if they decided to testify, he/she must thereafter cease to preside over the matter or take part in the proceeding-Warrant V Warren.

[1] under Section 175 EA 2011.

[2] As was held in Abubakar V Chuks (2008) All FWLR Pt 408 207 at 224.

[3] 1963 NWLR 67.

[4] 1965 NMLR 333. He should not sly his client.

[5] Substantially the same as Section 6 English Bankers’ Books Evidence Act, 1879.

[6] Quoted elsewhere in this work.

[7] Although these cases did not bring Judges of Inferior courts within the ambit of protection.