Grand Master - , Last week, Mon at 6:54 am
EVIDENCE OF A CHILD
The test of competence is the test of Intellectual capacity . Thus, all witnesses regardless of their age are competent to testify so far as they possess sufficient intelligence to understand the questions put to them, and to provide rational answers to those questions.
At common Law, children below certain ages were barred from testifying. The age limit were set at different level at different times. Generally at common Law, the evidence of children were treated as unreliable and therefore are usually required to be corroborated.
However, under the Evidence Act 2011 , children of any age are competent to testify so far as they possess sufficient intelligence to understand the question put to them and provide rational answers to those questions.
Section 175 provides thus:
‘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'.
MEANING OF A CHILD
The Evidence Act 2011 does not define who a child is. In Okon v The State, the court defined a child as a person who has not attained the age of 14years, this was a result of reading the old Evidence Act together with section 2 of the Criminal Procedure Act which defines a child as ‘any person who has not attained the age of 14years’. In Dagayya v The State however, the Supreme Court departed from this decision by holding a girl of 14years of age to be a child. Both cases were decided under the old Evidence Act.
The position is somewhat clearer under the new Evidence Act 2011, although the Act also does not define who a child is, it gave a statutory prescription under Section 209 which states thus:
‘ In any proceeding in which a child who has not attained the age of l4 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation if in the opinion or the court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth’.
It could be said relying on the foregoing provision that the Evidence Act 2011 adopted the position of the court in Okon v The State.
IS CHILD EVIDENCE ADMISSIBLE?
As has been stated earlier, by virtue of section 175 of the Evidence Act 2011, children of any age are competent to testify. The test is whether or not the child can understand the questions put to him and provide rational answers to those questions.
In Mbele v The State, the court stated that the test is a test of intellectual capacity and not of age. In that case, the court had to determine the competence of a 10year old witness, the court stated inter alia that the proper course of action for the court when determining the competence of a child to testify is to carry out a preliminary investigation to ascertain the competence of such child.. It may do this by putting forth questions to the child in open court which may have nothing to do with the matter before the court. If as a result of this investigation the court comes to the conclusion that the child is unable to understand questions or to answer them rationally, then he cannot be a witness; but if he passes the test then he may be a witness.
Once the competence of a child witness has been determined, the next question is for the court to determine whether or not the child understands the nature of an oath. This the court does this by putting preliminary questions to the child on nature of oaths. If the court is satisfied that the child understands the nature of an oath, then he may proceed to give his evidence on oath. If not, the child being a competent witness may still give unsworn testimony if the court is satisfied that he understands the duty of speaking the truth. However, a child who has attained the age of 14years is required to give sworn evidence.
The conducting of this preliminary investigation is a condition precedent , the effect of a failure to carry out this preliminary investigation was considered in Sambo v. The State; the Supreme Court held inter alia that non-observance of the procedure laid down in section 155 (now section 175) is not a mere irregularity but one which will render the evidence given in breach thereof, a nullity.
In Mbele v The State, the court stated that this preliminary investigation is a condition precedent and a failure to carry it out is fatal to the case and would invalidate a conviction where this irregularity occasioned a miscarriage of justice.
However, the court held in Okoyonmo v. State that if a court allows the child to testify without administering the test, the error could be grave but it could be cured if the records of the court indicate that the trial judge was otherwise satisfied that the child was competent to either testify on oath and give sworn evidence or competent to testify and give unsworn evidence.
This preliminary investigation must be carried out in open court In R v Dunn, where the judge carried out the investigation of a child witness to determine his competence out of court, it was held that this was illegal and sufficient to invalidate a conviction.
THE REQUIREMENT OF CORROBORATION
Corroboration refers to confirmation or support by additional evidence or authority.
By virtue of section 209(3) of the Evidence Act 2011, no person shall be convicted on the unsworn testimony of a child witness unless such testimony is corroborated by some other material evidence supporting the testimony implicating the accused.
The corroboration could be gotten from circumstantial evidence, or from the testimony of another witness.
On whether the unsworn testimony of one child witness could corroborate the unsworn testimony of another child witness, the court stated in Okoyomon v. State, that the unsworn testimony of a child can only be corroborated by the sworn testimony of another child or by some other independent evidence; thus, an unsworn testimony of a child cannot corroborate the unsworn testimony of another child.
Where a child gives sworn evidence, there is no requirement for corroboration, and the court may act on it alone as it would act on the sworn evidence of an adult. Although no corroboration is required as a matter of law, it is desirable in practice, and a court who wishes to convict on the uncorroborated evidence of a child must warn itself of the dangers of doing so.
 Section 175 of the Evidence Act 2011
 R v W (1991) 1 S.C.R 742.
 (1988) ANLR 173 at 182.
 (2006) NWLR (pt 980) 637.
 (1990) 4 NWLR (Pt. 145) 484.
 Mbele v. The State (1990) 4 NWLR (Pt. 145) 484; Okon v The State (supra).
 Section 209(2) of the Evidence Act 2011.
 (1993) SCNJ 128.
 (1973) NMLR 292; Okoye v. State (1972) 1 All NLR (Pt. 2) 500.
 (2014) 3 SCR 490
 Black's Law Dictionary, ninth edition.
 Onyegbu v The State (1995) NWLR (pt.391) 510, Okon v. The state (supra).
 (1973) 1 SC 21.
 Arabamien v. The State (1975) 5 UILR (pt II) 144 S.C