Competency and Compellability of Witnesses

In a trial, witnesses are used to prove facts. A witness is competent if he possesses the intellectual ability to testify to facts within his personal knowledge. If not, he is not allowed to give evidence. Even where a witness is competent, there is also the issue of getting the witness to come and testify in court. The process of compelling a competent witness to testify in court is referred to as compellability.

Adah on competency and compellability said:

…. A witness is said to be competent to give evidence if his testimony I admissible. He is compellable if he can be forced or obliged to go into the witness box and if he refuses to do so he can be committed to prison for contempt of court. It follows from this that every compellable witness is a competent witness. Conversely, it is not every competent wetness that is compellable.

THE COMPETENCY RULE

It is only those that are competent that can give evidence and if incompetent witness is allowed to testify, any conviction thereby or any verdict may be quashed on appeal. As in R V. Mount, three men were convicted of shop breaking. The wife of one of them had given evidence for the prosecution and this necessitated the quashing of all three, as shop breaking was not an exempted offence.

This is provided for in section 175 of the Evidence Act 2011:

All person shall be competent to testify unless the court considers that they are prevented from understanding the question put to them or from giving rational answers to these questions by reason of tender years, extreme old age, disease whether of the body or of mind or any other cause of same kind.

Section 175(1) of the Act as above, contains what may be regarded as a qualification and disqualification rule. It qualifies everyone to testify except where the witness disqualifies himself or herself. Section 175(2) provides that a person of unsound mind is not incompetent to testify unless he is prevented by his mental ingenuity from understanding the question put to him andgiving rational answer to them. For instance, in Elabanjo V. Tijani, the issue was whether a counsel was competent to give evidence and the Court of Appeal was of the view that in view of some decided cases, a lawyer was incompetent to testify.However, on appeal, the Supreme Court held that the determinant of competency in section 155 of the Evidence Act (now section 175 of the Evidence Act 2011)and that there is nothing under the provision that disqualifies a counsel from giving evidence on behalf of his client.

The categories provided by the Act are as follows.

TESTIMONY OF A CHILD

Sometimes, the principal witness to a fact in issue may be a little child. The question is whether such a child is competent to be a witness. In most domestic crimes, and cases of defilement, the only witness available may be children.If they are not competent, then relevant facts cannot be proved.This aspect I however, compounded by the fact that a child may be easily influenced by others and their power of observation may be unreliable.

However, the law is a little bit liberal when it comes to evidence of a child. Section 175 is to the effect that every child is competent to give evidence if they can understand the question put to them or give rational answers to those questions. Section 209(1) provides that a child who has not attained the age of fourteen years shall not give a sworn evidence but may give an un-sworn evidence if he is posed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth. It states:

In any proceeding in which a child who has not attained the age of fourteen years is tendered as a witness, such child shall give evidence other than on oath or affirmation, if in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.

That is to say, a child who is below the age of fourteen is only competent to give un-sworn evidence if in the opinion of the court he is possessed of sufficient intelligence to justify the reception of his/her evidence and understands the duty of speaking the truth. To consider whether a child below the age of fourteen is “possessed of sufficient intelligence”, the court will consider whether, in line with section 175 of the Act, he understands questions put to him and is able to give rational answers to those questions.

 In the case of State V. Una, Oputa J(as he then was) allowed a girl of seven years to testify because he found her to be intelligent enough. Here, the accused person was charged for defiling a girl of four years old sometime in 1964. At the time the victim was giving evidence in court, in 1967, she was already seven years old. Her evidence was corroborated by the evidence of her mother and the deposition of a medical doctor taken at a preliminary inquiry but admitted under section 38 of the Evidence Act. The accused was convicted on the strength of the evidence before the court even though the trial judge called for a lot of caution in believing the evidence of the victim. The court stated that her evidence would have been disallowed if she was testifying in 1964 when the offence was committed and was just about four years old.

In Sambo V. State the supreme court held that mere observation on the record that a child knows the nature of an oath but does not know the consequences of telling a lie is not sufficient compliance with the required procedure and that failure to carry out these two tests is not a mere irregularity, but a fundamental breach which went to the root of the conviction of the appellant for rape.

OLD PERSONS

As provided by section 175, every old person is therefore presumed to be competent except where they disqualify themselves as a result of their senility from understanding the questions put to them or from giving rational answers to those questions. Section 209 does not apply to old persons, so if they can satisfy the test under section 175, they can give sworn evidence. If an old person id unable to understand the question put to him or could not give rational answers to those questions because the memory is faded, then he/she cannot give evidence at all. 

INSANE PERSONS

Insane persons are also competent to give evidence if they are not prevented as a result of their mental impairment from understanding questions put to them or give rational answers to those questions. This is provided for in section 175. The competency of an insane person will have to be investigated in an open court before the testimony is received.  Expert evidence will also be called if there is any doubt.

In R V. Bellamy, the trial judge had examined a rape victim of 33 years who had a mental age of 10 and when she was asked if she lied what would happen to her and she said she would be put away. She was allowed to give sworn evidence and the Court of Appeal held the procedure.

Also in R V. Hill, the prosecution wished to call an inmate of a lunatic asylum. One of the attendants was called first and gave evidence that the man in question had the delusion that spirits continually conversed with him but added that he believed that inmate was capable of giving an account of anything that happened before his eyes. The witness was allowed to testify because the court found that he had clear understanding of the obligation of an oath and was rational on all subjects except his particular delusion.

Where a witness is incompetent because he is insane but has made a written statement, such statement may be admissible under section 83 of the Evidence Act because he is unfit to attend the trial. In the case of R V. Setz-Dampey, a statement made by an insane person was allowed to be proved at a trial by another witness because the witness was unfit to attend.

DEAF AND DUMB PERSONS

A witness is not said to be incompetent only because he is deaf or dumb. Section 176 of the Evidence Act allows such persons to give evidence in court in any manner he can make his or her evidence intelligible.

The witness can give evidence in any manner the court can understand him. This may be through writing where he is literate or by sign.  Thus it was held in R V. Ruston, that a witness though deaf and dumb could be sworn and give evidence on an indictment of felony if intelligence can be conveyed to and received from him by means of the sign language. However, such evidence must be given in open court and regardless of the manner it was given shall be regarded as oral evidence. This position is supported by the case of R V. Whitehead, where on a prosecution of rape, it appeared that prosecutrix was deaf and dumb and her father who was sworn to interpret her evidence said that he believes her to be ignorant of the nature of an oath.  An expert however came and from his report to the court, prosecutrix was sworn and her evidence taken down as interpreted by the expert. In the course of examination, it became it became ostensible that she did not understand questions and that her answers could not be relied upon. The judge directed her to stand out and struck her evidence from the case. It was held that although prosecutrix had been sworn, the judge acted rightly by striking out and withdrawing her evidence from the jury. The fact that the incompetency was discovered during trial was immaterial.

EVIDENCE OF AN ACCUSED PERSON

An accused person is initially not a competent witness to testify at his own trial. However, only in certain cases. He is a competent witness in a criminal trial only for the defense, but not compellable. He is not competent witness for the prosecution.

The position of an accused person as a witness in his trial is provided for by section 180 of the Evidence Act 2011:Every person charged with an offence shall be a competent witness for the defense at every stage of the proceeding, whether the person so charged is charged solely or jointly with any other person:

Provided that:

A person so charged shall not be called as a witness in pursuance of this section except Upon his own application.

An Accused as a Witness for the Prosecution- Although an accuses person is not expressly prohibited under the Evidence Act from giving evidence for the prosecution, there is also no express provision in the Act making an accused competent for the prosecution.The reason why an accused is not a competent witness for the prosecution is because of the rule that an accused cannot be compelled to give evidence at his trial. This is contained under section 36(11) of the 1999 constitution of Nigeria (as amended) which provides that "No person who is charged for a criminal offense may be compelled to give evidence at the trial". If an accused person is competent and compellable to give evidence for the prosecution, this constitutional provision will be breached and the court will annul such rule of evidence because the constitution is supreme.

In Agbachom V. State, where the accused was charged for contempt of court on account of a statement contained in an affidavit sworn by him in support of his application for the transfer to another court of a civil case in which he was a defendant. The trial Judge maintained that the statement was calculated to lower the authority of the court and therefore amounts to a contempt of court. The defense contended that the trail judge was not competent to try the accused for contempt of his own court under this circumstance. The trial judge however, overruled this objection on the ground that he was competent both under the common law and under section 133 of the criminal Code and in order to prove the charge, the judge put the accused person in the witness box and examined him. The accused was convicted and he appealed to the supreme court. It was held on appeal that the conviction was wrong, as the accused was compelled to give evidence. An accused is not a competent witness for the prosecution against himself. He cannot be a witness for the prosecution except against any other accused person.

An Accused as a Witness for the Defense:  An accused person is a competent witness for himself but must be called upon his own application. That is to say, he is not a compellable witness. The right of an accused to give evidence from the witness box is states in section 180 on paragraphs (c) and (f) thus:

(c) when the only witness to the facts of the case called by the defense is the person charged he shall be called as a witness immediately after the close of the evidence for the prosecution; 

(f) every defendant called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the witnesses give their evidence.

Evidence obtained through cross-examination of an accused witness by the prosecution which implicates a co-accused is admissible. While an accused person may be asked any question tend to incriminate him as to the offence charged, paragraph (g) of section 180 of the Act states that he cannot be asked any question and if asked shall not be obliged to answer any question tending to incriminate him as to other offences or that he is of a bad character. An accused may give unworn evidence under section 180 (e) of the Act. An unsworn evidence of an accused taken in that manner is evidence that the trial and it is for the court to and it is for the court to decide what weight to attach to it.

An accused is competent but not compellable to give evidence for a co-accused charged together.

COMPETENCY OF AN ACCOMPLICE TO GIVE EVIDENCE

The determining factor whether a particular witness is an accomplice or not is the fact that even if he was not charged with the other accused he is somebody who can be charged, tried and convicted with the accused person. An accomplice is a competent and compellable witness for the prosecution and the defendant as well.  This is stated in section 198 (1) of the Evidence Act; an accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, the evidence of the witness will require statutory warning.

In Police V. Edosaomwan, an accomplice who took part in the commission of the offence with the accused persons but not charged was held to be a competent witness for the prosecution. Similarly, in R V. Omisade, where the court held that the two witnesses facing separate trials for being in illegal possession of arms were accomplices and they were competent witnesses for the prosecution.

EVIDENCE OF SPOUSE

Initially, under the common law, the spouses of a party to both civil and criminal proceedings were neither competent nor compellable to give evidence in the court. However, the Spouse of accused persons in criminal cases are now competent and compellable for the defense and largely not for the prosecution except for certain named offences.The accused persons spouse is only competent and compellable for the defense but only on the application of the accused, making the spouse incompetent for the prosecution except where the accused is charged for certain specific offenses referred to under the criminal code or its equivalent provisions under the Penal Code.

It was held in Hosklyn V. Metropilitan Police Commissioner that” husband and wife are looked upon as one flesh and that their giving of evidence against one another would lead to implacable discord and dissension and might be the means of great inconvenience”.

Section 182 (1) of the evidence Act provides that where a person is charged with any of the offenses mentioned in that subsection, the spouse of the accused will be competent and compellable witness for both the prosecution and defense without the consent of the person charged.

CIVIL CASES

In accordance with section 178 of the evidence Act 2011, subject to section 165 of the Act which deals with legitimacy, the parties to a suit, and the husband or wife to any party to a suit, in all civil proceedings shall be competent witnesses. Thus, the plaintiff may decide to call the defendant as his witness and vice versa.

In Obolo V. Aluko, where the plaintiff issued a subpoena on the defendant to give evidence for the plaintiff. The trail judge held that “a party could call his opponent as witness and provided he is willing he is a competent witness”. He added however, that there is no law to compel the defendant to give evidence for the plaintiff. The supreme court held that the defendant is both competent and compellable to testify for the plaintiff.

COMPETENCY OF COUNSEL

There is no law provided in the evidence Act which prevents a counsel from giving evidence for is client. However, there are reasons as to why a counsel should not serve as both counsel and witness. They include:

1.      Every litigant must feel safe when making disclosure to his counsel.

2.      That counsel must remain detached and impersonal in his attitude to the case so that his judgement of the matter may not be clouded by personal feelings.

This is the same whether counsel is giving oral or affidavit evidence.

In Horn V. Richard, a counsel swore to an affidavit on behalf of his client. It was held that the Counsel should not have withdrawn from the case if his deposition is considered as necessary.

On the other hand, where counsel id the only person with the knowledge necessary to swear the affidavit, and where the facts to which he is to swear are likely to be in dispute, then he should, for the purpose of that application withdraw from the case and brief other counsel. In Gachi and Others V. State, the defense counsel gave evidence in support of an alibi on behalf of the accused person who was acquitted. It was held that although a counsel is a competent person in law, it is highly undesirable that he should give evidence in a case in which he is appearing professionally. If the evidence be necessary, he should decline being counsel.

However, in Elabanjo V. Tijani, the plaintiff sued for damage for trespass. Plaintiff’s counsel took out the writ of summons, settled the pleadings,filled motion for intention injunction and then filed a motion for summons for direction.From then till the end of the case, he ceased to act as counsel. When the actual hearing came, he gave evidence for the plaintiff. Judgement was given for the plaintiff.  The defendant appealed to the Court of appeal where the judgement of the trial court was overturned after the evidence of the plaintiff was expunged on the grounds that he was not competent to give evidence. The plaintiff then appealed to the Supreme Court and it was held, setting aside the judgement of the Appeal Court and restoring that of the trial court, that a counsel is competent witness on the case he is conducting on behalf of his client and can give evidence in that case.

COMPELLABILITY

All compellable witnesses are competent, however, not every competent witness is compellable. If a witness is competent and compellable, then he can be served with a subpoena to attend the court and where he fails to do so, he can be proceeded against for contempt of court. It was stated in Ex parte Fernandez that anyone who is a competent witness is compellable, but the court quickly added “unless he can show some exceptions in his favour”.

Category of Persons who are Not Compellable:

The President of a Country, their Deputy, as well as Governors and their deputies. The 1999 Constitution of the Federal Republic of Nigeria (As Amended) granted immunity to these persons. This is provided in section 308 of the 1999 constitution (as amended). This is apart from the international immunity they are granted from other international conventions.

This was applied in the case of Colonel Olu Rotimi and Others V. McGreggor, where a civil case was brought against the governor of Oyo State. It was held that the name of the Governor be struck out since no action can be brought against him in his private capacity. He could only be sued in his official capacity. In the case of Fawehinmi V. Inspector General of Police, it was held that a Governor of a state enjoys immunity from prosecutions whilst occupying that seat and no court process may be issued against him but the constitution did not prevent the police from investigating any criminal allegations against the governor.

Ambassadors.

Diplomats, ambassadors, diplomatic agents of a countrysent to another country are persons that are also not compellable. This is in consonance with Article 30 of the Vienna Convention on Diplomatic Relations, 1961. Article 30 (1) provides that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction except where it involves immovable property, executorships and other professional or commercial activities carried out in his private capacity. Article 30 (2) states that a diplomatic agent is not obliged to give evidence as a witness.

They may however, waive this right under section 2 of the 1962 Act. Sections 3 and 4 makes similar provisions in respect of the high Commissioners from the Commonwealth countries as well as their families and officials.

Representatives of International Organizations.

These are representatives of certain international Organizations such as the United Nations, African Union, European Union and Commonwealth.

Limited Immunity for Bankers under section 157 of the Evidence Act.A banker or officer of a bank shall not in any legal proceeding to which the bank is not a party be compelled produce any bankers book or appear as witness to prove the matter, transactions and accounts therein recorded.

An Accused Person. We have seen that an accused person cannot be compelled to give evidence even for himself.

Spouse of an Accused person. Spouse of an accused person I certain cases cannot be compelled to give evidence if the marriage between the accused and the spouse is monogamous.

A Judge or Magistrate. Judges and Magistrates are accorded some protection under section 165 of the Evidence Act.