Grand Master - , 1:22 pm On 10 Oct 2017
Before the testimony of a witness is received by the court as evidence, it is the duty of the court to ascertain that the witness is fit and proper to give evidence before it. Also, it may be necessary to compel a vital witness to give testimony in court. This is what the discourse of competence and compellability is concerned with.
WHAT IS COMPETENCE?
Competence is the legal ability to give evidence in court.
WHO IS A COMPETENT WITNESS?
By the provision of section 175 of the Evidence Act 2011:
"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 general rule is to the effect that every person is a competent witness regardless of the age, state of body or mind so far as it can be shown that they have the mental capacity of understanding the questions put to them and give rational answers to those questions.
Thus, the test of competence is whether or not a witness can understand the questions put to him and whether he can give rational answers to those questions. Children of any age, mental defectives, physically challenged persons are all competent witness so far as they can pass this test. It should be noted however that because a witness evidence is received does not automatically mean that it would accorded any weight
There is a presumption that every witness called to give evidence is competent, until the competence of the witness is challenged. See Asuquo Eyo Okon v. The State (1988) ANLR 173 at 186.
COMPETENCE OF CHILD WITNESSES
A child is a person under the age of 14 years.
As stated earlier a child of any age may give evidence in court, so far as it can be shown that such child has sufficient intelligence to understand the questions put to him and provide rational answers to those questions.
To test whether a child is competent to testify (i.e possesses sufficient intelligence), general questions may be put to him in open court. See Okon & Ors. v. State (1988) 1 NWLR (Pt. 69) 172; Nbele v State (1990). The court is however not bound to do this so far as the records of the court shows that the trial judge was otherwise satisfied that the child witness was competent to testify. Okoye v. State (1972) 1 All NLR (Pt. 2) 500; Okoyonmo v. State (1973) NMLR 292; Okon & Ors. v. State (supra).
A child may also give unsworn testimony if the child does not understand the nature of an oath but understand the duty to speak the truth.
WHO IS A COMPELLABLE WITNESS?
For a witness to be compellable, he must first be a competent witness as the court will not compel a person who is not fit to give evidence before it to do so.
If a witness is compelled to give evidence, failure to do so may render him liable to a charge of contempt.
As a general rule, every competent witness may be compelled to give evidence save for certain categories of persons, these are:
1. THE PRESIDENT, VICE PRESIDENT, GOVERNORS AND DEPUTY GOVERNORS
By virtue of section 308 of the constitution, the aforementioned persons are immune to all civil and criminal proceedings, it follows therefrom that they cannot be compelled to give evidence in any of these proceedings. This provision does not however confer a disability on them; that is, they may give evidence if they choose to.
By virtue of section 177 of the Evidence Act 2011, a banker of a bank or other financial institution can not be compelled to produce the banker's book or financial book and cannot be called as witness to prove the matters or transaction recorded in the book.
3. LEGAL PRACTITIONERS
By virtue of section 192 of the Evidence Act, 2011. A legal practitioner cannot be compelled to disclose privileged communications between himself and his client save with the consent of the client or where such communication is made in the furtherance of an unlawful purpose.
4. PUBLIC OFFICERS
A public officer cannot be compelled to disclose any communication made to him in official confidence where he consider that public interest would suffer by such disclosure. (Read section 191 of the Evidence Act)
5. JUDICIAL OFFICERS
By virtue of section 188 of the Evidence Act, judicial officers can not be compelled to answer any question as to their conduct in court save on the special order of the High Court.
6. DIPLOMATS: By virtue of section 1 of the Diplolatic Immunities Act; a diplomat, his wife, children and servants are immune to all criminal and civil to all criminal and litigation, they could however waive this immunity.
7. HUSBAND AND WIFE
A husband or a wife cannot be compelled to give evidence of privilege communications made to him by the other spouse during the continuance of legal marriage except on the leave of her husband. (see section 182(3) of the Evidence Act 2011).
Also by the provisions of subsection 2 of thesame section, when a person is charged with an offence other than those listed in subsection 1 his wife or husband is not a compellable witness for the prosecution except on the application of the other spouse.