COMPETENCY AND COMPELLABILITY CONTENTS

1.0       Introduction

2.0       Objectives

• Main Content
• Preamble
• Competency and compellability of Witnesses
• Compelling and Compellability of Spouses of parties
• Compellability
• Compelling of persons charged

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References/Further Reading

INTRODUCTION

In this unit, you shall learn about the competency and compellability of witnesses. Competency is the mental ability to understand problems and make decisions, the capacity to understand proceedings – whether or not a witness may legally give evidence in a court proceeding. Compellability deals on issues as to whether a witness is obligated to give evidence at proceedings even against the wish of the witness. In the discourse you shall learn the rules concerning competency and compellability; particularly as they relate to parties, their spouses, children, and persons of unsound mind. An attempt will be made to distinguish those who are competent or both competent and compellable, identify those who are not and the effects.

You will learn about the sharp distinction between civil and criminal proceedings in relation to competency and compellability of witnesses.

OBJECTIVES

In this unit the students should be able to identify persons who are competent and compellable and person who may or may not be competent and compellable witnesses.

The students should also be able to explain the circumstances in which the accused, his spouse and children or persons of defective intellect are both competent and compellable in criminal and civil proceedings, if at all.

MAIN CONTENT

• Preamble

The main issue of concern is whether a witness may legally give evidence in a judicial proceeding. It is not about the question of reliability. There are legal disabilities forbidding certain witnesses from testifying. A very close and ready  example  is  a  child  who  by  reason of his age cannot understand the question that are put to him or her or give answers that can be understood.

• The General Rule: Read generally Chapter XI Evidence Act,

The general rule is that every person is competent to give evidence except the following:

1. Persons of unsound mind and drunken persons who are incapable of giving rational testimony.
2. A child in civil cases, too young to understand the nature of the oath
3. Persons who will neither take the oath, nor affirm

All evidence must, as a general rule, be given on oath or affirmation. Oath is by swearing with the Holy Bible by Christians, the Holy Qur’an by the Muslim and ‘iron’ by the traditionalists.

A witness affirms if he has no religious belief, or if the taking of an oath is contrary to his religious belief or if his religion permits him to take an oath but compliance with the requirement of this religion would cause undue inconveniences or delay.

The following witnesses do not need to swear or affirm:

• Children of tender years, who do not understand the nature of an oath, but who understand the duty of speaking the truth
• A witness, who is merely producing a document
• A Counsel or a judge explaining cases in which he is previously engaged
• An accused unsworn statement without cross examination either in lieu of or in addition to, his sworn statement
• The Head of State, (not being foreign sovereign)

Any person, who understands an oath or is capable of affirming, is competent to give evidence. A witness is lawfully sworn if he or she subscribes to an oath or affirmation. Both in law and practice, any conviction based on the evidence of a witness who has not been lawfully sworn is bad and must be quashed

A competent witness may also be a compellable witness with certain exceptions; as you shall see later, spouses are not compellable witnesses for each other in a criminal proceeding.

• Competency of Children

The competency of a child to give evidence is determined by a test of intellect. A child who lacks the requisite intellect and does not understand the nature of an oath is incompetent to give evidence. However, the Children and Young Persons Act permits a young child, who does not understand the nature of an oath to give unsworn testimony if the judge is satisfied that he or she understands the duty of speaking the truth. Such an unsworn evidence of a child is not to be admitted or acted upon unless it is corroborated. Indeed, no person can be convicted upon an uncorroborated and unsworn evidence of a child.

In this context, the age of the child is not material, but the child must:

• Possess the intellect
• Fall within the definition of a child, being person under the age of 14 years

In order to determine whether a child understands the nature of an oath (and therefore be competent to give evidence), the judge must examine the child in the open court.

• Competency and Compellability of witnesses
• Witness for the Prosecution

The following are not competent as witnesses for the prosecution:

1. the accused person
2. the spouse of the accused with certain exceptions

• persons jointly indicted or jointly tried with the accused

1. spouses of persons jointly charged or jointly tried with the accused

• Witness for the Defence:

The following are competent witnesses for the defence

• The accused person whether charged solely or jointly
• The spouse of the accused person
• Rights of the  accused  person: The rule  as  to  competence  and compellability:

He is a competent witness for him or herself. His or her failure to give evidence is not  subject to comments by the Prosecution. He or she may not be called as a witness, except upon his or her own application.

If  called,  he  or  she  may  be  asked  any   question   in   cross-examination,  notwithstanding that it incriminates him as to the offence charged.

He may not be asked and if asked shall not be required to answer any question tending to show that he has committed, or been convicted of, or charged with, any other offence, or is of bad character unless:

• Proof of the commission or a conviction for that other offence is admissible to prove the present offence as in evidence
• He or she personally or by his or her counsel asked questions of witnesses for the prosecution with a view to establishing his own good character or has given evidence of his good character
• The nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the prosecution’s witnesses

Please note the following:

1. By putting his or her character in issue, an accused person puts the whole of his or her character in issue and may, as a general rule, be cross -examined with regards to previous charge for which he or she was convicted; to bring up evidence as to statements made at that trial, which tend to conflict with the evidence in the court
2. It is not all the imputation made on the character of witnesses for the prosecution that may or may not put the character of the accused in issue. For example:

It does not in the following cases where

• The attacks are directed at persons who are not parties, e.g..
• The presiding magistrate
• The police officer (or a police officer, who does not give evidence)
• The deceased
• If defence merely denies the prosecution’s evidence however,

For instance, to say “The Police witness is a liar” is nothing more than “pleading not guilty with emphasis”.

A cross examination of a prosecution in the case of rape or indecent assault to the effect that the prosecutrix consented is not an imputation on her character.

In the important case of SELVEY v DPP (1968) 2 ALL ER 497, the House of Lord firmly established the following procedure:

1. The words of the statute must be given their ordinary material meaning
2. It is permissible to cross examine the accused as to character both when imputations on the character of the prosecutor and his witnesses are cast to show their unreliability as witness independently of the evidence given by them and also when the casting of such imputations is necessary to enable the accused to establish his defence.

• In rape cases, the accused can allege consent, and the loose character of prosecutrix, thus seemingly placing himself in peril of such cross  But the issue can be said to be one raised by the prosecution and if what is said amounts in reality to no more than a denial of the charge expressed, however emphatic the language, it should not be regarded as an imputation on character.

By giving evidence against any other person, charged with the same offence (i.e. an accused giving evidence of damning character against a co-accused charged with the same offence). In this case, the judge has no discretion to exclude such evidence even though its prejudicial effect far outweighs its probative value.

The view has been strongly expressed that there is no general rule that evidence of the bad character of the accused cannot be introduced where the defence necessarily involves imputations against the character of the prosecution or its witness. The trial judge has an unfettered discretion to allow or refuse to permit cross examination of the accused in the particular circumstances.

 Spouses of Parties

• Position of Accused’s Spouses:

Following a decree of divorce or nullity, spouses are cured of incompetency. They become competent witnesses for the prosecution, in matters occurring ‘after’ the decree. They remain incompetent in respect of matters occurring during their covertures. A decree of judicial separation is ineffectual; the spouse remains incompetent witness. Parties to a marriage that is void ab-initio are not affected by incompetency rule as there was never a marriage.

The rules relating to the competency and compellability of a spouse of an accused person to give evidence apply in three categories of cases, namely:

1. Cases in which a spouse is competent only upon the application of the accused
2. Cases in which the spouse in competent without the consent of the Accused

• Cases in    which    a    spouse    is    both    competent    and    compellable   for    the prosecution or the defence
• Cases in which the spouse is competent

A spouse is competent to give evidence upon the application of the accused in cases other than those cases in which he or she is competent without the consent of the Accused as  well and those in which he or she  is  both  competent  and  compellable  for  the  Prosecution or the defence. In these cases both spouses must give their consent.

• Cases in which the spouses is competent without the consent of the Accused. The following cases are examples in which a spouse is not competent to give evidence for the Prosecution or the defence, without the consent of the Accused
  1. Neglect to maintain or desertion of wife or family

1. Offence relating to children

• Child destruction

1. Bigamy
2. Sexual offences other than bigamy, indecent assault on a man, and assault with intent to commit buggery
3. Cases in which a spouse in both competent and compellable. These are:
4. Offences against the spouse’s property
5. Offences of violence against the spouse

• Cases brought for the purpose of enforcing civil rights (e.g. public nuisance)

The spouse is competent to give evidence against the other spouse in cases where the health, liberty, or person is involved. Thus a spouse is a compellable witness where the  other is charged with attempting to strangle his or her, intent to murder him  or  her,  causing him or her grievous bodily harm, maliciously inflicting grievous bodily harm or attempting to poison him or her with intent to murder.

Cases in which the spouse is competent and/or compellable include attempt to commit such cases.

These rules which apply to spouses, are applicable during the subsistence of the marriage between the spouses and after the termination of such marriage. They apply with equal  tone to:

• Spouses during the subsistence of marriage
• Ex-spouses (i.e. erstwhile husband or wife who have divorced) for offences committed during the subsistence of the marriage
• Persons whose voidable marriage has been annulled

In this context, void marriage is no marriage and parties to it are not spouses.

Conversely a marriage still subsists even after a decree of judicial separation. Thus  a spouse’s incompetence to give evidence against the other spouse is not brought to an end by a decree of judicial separation.

The sum total is that in civil court, both parties and their spouses are compellable witness. The accused is never a compellable witness in criminal cases. His spouse is neither competent nor compellable for the persecution. For the defence, she is competent on the application by the accused but not compellable.

 Defendant

An accused is a competent, but not compellable witness in his or her own case or in defence of a co-accused. He is not also a competent witness for the prosecution. The following are competent witness for the defence:

1. The accused person, whether charged solely or jointly
2. The spouse of the accused person

Suppose after investigation, Police finds X and Z liable for conspiracy and X and Z were jointly charged X is competent to testify at the instance of Z and vice versa. Neither of them can be compelled and none can equally testify for the prosecution.

Suppose instead of charging X and Z jointly, they are charged separately. They cease to be co-accused and can be used one against the other.

If a defendant fails to give evidence in his/her own defence (if when  giving evidence,  refuses  without  good  cause  to  answer  any  question),  the  court  in  determining  whether he/she is guilty of the offence charged, may  draw  such inferences from that  failure as may appear proper.

An accused’s spouse is a competent witness for the prosecution, the defendant and for a co- defendant. Where he/she is not charged, he/she is a compellable witness for the defendant. In relation to some spouse’s offences, a defendant’s spouse is compellable witness for the prosecution or for the defendant,

Securing Attendance

The following forms or processes are available for securing the attendance of witness:

• The Magistrate’s Courts. Witness Summons:

In the Magistrate’s Courts, a witness summons may be issued to compel a witness attendance. The witness is entitled to be paid money or travelling expenses.

• High Court. Attendance of witness may be enforced by:
• Subpoena ad testificandum – This requires the witness to attend and give oral evidence.
• Subpoena duces tecum – This orders the witness to bring and produce a document.
• Habeas corpus ad testificandum – This orders the custodian of a person imprisoned in consequence of a civil process to produce the prisoner to give evidence.
• Judges Order – This is used where the accused is  in prison awaiting  trial  or under sentence.
• Children and Persons of Unsound Mind

In criminal trials a child who understands the question asked or able to give a rational answer is competent.

• Witness

Persons of unsound mind, by reason of the defect in their intellect, cannot be a competent witness.

CONCLUSION

A witness is competent if he or she possesses the mental ability to understand the proceedings and make a decision. He or she is compellable if there is an allegation to give evidence. Spouses and children occupy special positions, the law of evidence has specified cases where they are competent, but not compellable or where they are both competent and compellable.

SUMMARY

Every person charged with an offence, shall be competent witness for the defence provided:

1. He elects upon his own application
2. Failure to give evidence shall not be subject to comments
3. He may be asked any question in cross examination notwithstanding that it would tend to criminate him as to the offence charged
4. He shall not be asked and if asked, shall not be required to answer, any Question tending to show that he or she committed or been convicted of or been charged with any offence other than that wherewith he is then charged or is of bad character.

Unless

• It is to show that he is guilty of the offence charged
• He asks questions with a view to establish his own good character
• He has given evidence of his good character
• Nature of conduct of defence involves imputation on the character of the prosecutor or his witness

See section 180, Evidence Act, and 429 and 250 of the Criminal Codes.

TUTOR MARKED ASSIGNMENT

In what circumstances may a person give evidence without taking the oath?

REFERENCES/FURTHER READING

Aguda, T. (2007) The Law of Evidence, Spectrum Law Series, Ibadan Nwadialo. F. (1999) Modern Nigerian Law of Evidence, University of Lagos Press, Lagos.

Afe, B. (2001) Law and Practice of Evidence in Nigeria Intec Printers, Ibadan FGN, Evidence Act, 2011.