EVIDENCE 2.6B COMPETENCE AND COMPELLABILITY 2
We move on to other instances where the issue of competence arises:
- In Criminal Cases:
- Evidence of Spouses: spouse of an accused is only competent to testify on application of the accused person-Section 179[1], 182(2) [2] and 186[3] EA. Idiong and Anor V The King[4], Lamu V The State[5]. The restriction is so as to preserve matrimonial harmony.
Exceptions are contained in Section 182(1) EA makes the spouse competent to testify (even without the consent of the other spouse) in certain offences generally related to indecent practices on females[6]. It has been argued that the categories should be broadened to include certain offences like bribery, corruption, murder[7], treason… of spouse. It has also been submitted that the courts should be allowed to balance public policy against this interest not to testify. Rather than just preserving matrimonial harmony at the expense of societal safety and order. The court should thus use equitable powers to interpret in interest of justice.
- The Accused as Prosecution Witness: Section 179 EA makes him a competent witness for the prosecution and defence. The accused can be prosecution witness[8] when he is testifying against the co-accused provided he has pleaded guilty[9] or has been convicted[10]/acquitted/nolle proseque entered in his favour (meaning that his own fate should have been determined)-R V Akpan[11].
- The Accused as Defence Witness: Section 180 provides; Every person charged with an offence shall be a competent witness for the defence at every stage of the proceeding whether the person so charged is charged solely or jointly with any other person. Note that in testifying, HE MAY:
- Make a statement from the dock: without being sworn. In such case he would not be liable to cross examination-Owonikoko V The State[12].
- Testify from the witness box: in such case he will be sworn and liable to be cross examined.
- Make no statement at all-Section 287 CPA. Section 36(11) Mumuni V The State[13].
This provision is to be read together with Section 180G discussed earlier.
- Competence of Accomplice, Relations and Victims: The Accomplice (Section 198 EA), Relation of parties (Section 179) Victims and Witnesses[14] in a case are competent to testify- Hausa V The State[15].
- In Civil Cases:
Section 178 is relevant here. It generally provides; … in all civil proceeding the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses-same has been noted in Elias V Disu and others[16] Obolo V Aluko[17].
These competent witnesses can be compelled by serving upon them a subpoena-Barclays Bank of Nig Ltd V Alhaji Abubaka[18]. Not however Section 186 (relating to proceedings instituted in consequence of adultery)”…no witness in any such proceeding… shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless he or she has already given evidence in the same proceeding in disproof of the alleged adultery. But Section 84 Matrimonial Causes Act allows the husband to show that he has not had sexual intercourse with the wife at a particular time[19].
[1] Subject to this Part, in criminal cases, the defendant, his wife or her husband, as the case may be, or any person jointly charged with such defendant and tried at the same time, and the wife or husband of the person so jointly charged, is competent to testify.
[2] (2) When a person is charged with an offence other than one of those mentioned in subsection (1) of this section, the husband or wife of such person is a competent and compellable witness but only upon the application of the person charged.
[3] The parties to any proceeding instituted in consequence of adultery and the husbands to adultery.’ and wives of the parties shall be competent to give evidence in the proceeding
[4] 1959 13 WACA p 30.
[5] 1967 NMLR 228.
[6] Like indecent practices between male and a girl under 13 years, indecent practice with idiots, indecent treatment of girls under 16 years, defilement of women by threat, fraud or administering drugs on women to procure defilement, and so on. See Lamu V State 1967 NMLR 228.
[7] See R V Deacon.
[8] As was noted in Maduekwe V Okoroafor relying on Obolo V Aluko, that the prosecution/plaintiff can call his opponent as witness.
[9] As was done in Umole and Others V IGP 3388
[10] Omisade and Ors V The Queen 1964 NMLR 67
[11] 1940 6 WACA p 188.
[12] 1990 7 NWLR pt 162 p 381.
[13] 1975 6 SC P 179.
[14] Witnesses can be competent and even compellable to testify for the defence where necessary-Alor V State.
[15] 1994 6 NWLR pt 350 p 281 at 308. Remember however, that the court should warn itself that it is unsafe to act upon the uncorroborated testimony of accomplice. Ekpo V The State 1976 5 SC p. 29.
[16] 1962 1 All NLR 214.
[17] 1976 1 NMLR 334.
[18] (1977) 10 SC 13 at 15.
[19] I guess the wife should then explain how she became pregnant
