EVIDENCE 2.6A COMPETENCE AND COMPELLABILITY OF WITNESSES
COMPETENCE AND COMPELLABILITY OF WITNESS.
“Competence” has been defined in Blacks’ Law Dictionary 7th Edition as “the basic or minimal ability to do something especially to testify”. While “compellability” means “capable of being compelled… especially to testify”[1].
Part IX EA 2011 deals with competence and compellability.
Evidence can be proved through witnesses. However, only the evidence of competent witnesses are admissible. A competent witness is one who may lawfully testify while a compellable witness is one can be lawfully compelled to testify/give evidence. We start with:
Section 175 (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.
This means that every person is presumed competent to testify unless the contrary is established[2].
Analysis of Section 175: (Competence of Children, Old person people suffering from disease of mind or body and other afflictions):
:: Who is a Child?
Before the 2011 EA the courts were divided on whether it was the age of majority/franchise (18), or puberty or contractual age (Labinjoh V Abake) or the Age in Section 2 of the Criminal Procedure Act (14). In Okoye V The State[3], State V Njokwu[4] Okon V The State[5], the courts adopted the age in the CPA (14years[6]). Section 209 EA 2011 now settles it by providing 14 years too. It has however been argued that understanding rather than biological age should determine. As in Solola V State where it was held that competence to testify is not a matter of age but of intellectual capacity to understand the questions put to you[7]. In Peter V The State, a 13 year old who showed sufficient understanding was regarded as competent to testify.
Receiving the Testimony of a Child…etc.:
:: The courts usually perform 2 tests to ascertain if the child has sufficient intelligence. It has been well couched by Nnaemeka Agu JSC in Mbele V The State (relying on his previous pronouncement in Okon V The State: “the first duty is to determine whether the child is sufficiently intelligent to understand the questions he may be asked… and to be able to answer rationally… this is tested by the court putting to him preliminary questions which may have nothing to do with the matter before the court… then proceed to the next test as to whether in the opinion of the court, the child is able to understand the nature and implications of an oath”… if the child passes none of the test, he is not competent to testify. If he passes the first but fails the second, he can give evidence though not on oath and the evidence would need corroboration. If however the child passes both tests, he can give evidence on oath and this evidence on oath can be treated as though it was that of a competent adult. Muktar J.C.A in Ogunsi V State also gave a similar dictum[8]. Also Ode V State. As the court in R V Hayes noted that the question is whether the child “has sufficient appreciation of the solemnity of the occasion and the responsibility to tell the truth…”[9]. :: These tests apply to Old people-R V Bellany as well as insane persons-R V Dunning, R V Barrat..
:: The tests should be performed in the open court and before the child’s evidence is received.
In Omosivbie V C.O.P[10], the evidence of a seven year old was used to convict the accused. No tests were carried. Quashing the appeal, Kester J. noted that it was a serious omission. In Sambo V The State, the trial judge said that in his own estimation, the child had possessed enough intellect. But the tests were not carried out. The conviction was quashed.
:: Though not compulsory, it is advisable that the court should record the inquiry (i.e. test). Okoye V The State and Okoyonmo V The State, Solola V State the Supreme Courts repeated this principle.
In England, the Department Committee on Offences against Children and Young persons noted that the child should not be overcome with distress or fright of the court so that he would not be confused. The child can be shielded from the accused by allowing them testify from Television screens, to prevent intimidation of the child. The Home Office Circular 61/1990 encourages such practice in the cases of rape or terrorism. This was also approved in R V Bimallie[11].
[1] Black’s Law Dictionary, 7th Edition at page 278.
[2] Initially, the inability to testify was a general rule to prevent concussion. However, by the 17th century, incompetence became the exception. However, In Morrison Industries Plc V Makinde, the court warned that we should not expand the categories of exemption.
[3] 1973 1 all nlr p 500.
[4] Obia Vol. 4 ECS LR p.67.
[5] 1988 1 NSCC p 157.
[6] i.e. When one is below 14, he is regarded as a child.
[7] Well this is right but I think 14 years is okay.
[8] Noting that the child should understand the duty of speaking the truth and appreciate the nature of an oath.
[9] Michael Hirst and Phipson have followed this terming in R V Hayes.
[10] 1959 wnlr p 209 at 211.
[11] 1991 92 Crim App R 128. Here the accused’s 11 years old daughter testified against him He appealed on the ground that the testimony was obtained in his absence (as the daughter was out of sight). The court rejected his claim and noted that such practice prevented intimidation.
EDI
Thank Iso.You submissions are always so helpful