COMPETENCE AND COMPELLABILITY OF WITNESS

10/01/2014 11:22:00 pm , ,
The giving of oral testimony or testimonial evidence and the production of documents in appropriate cases is done through witnesses.
For a person to be called as witness he must be someone considered in law as fit and proper before his testimony can be received in evidence. Thus, he must be a competent person.
By the Evidence Act, section 155(1) 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”.
From the above provision, one could infer that there is competence of four categories of witnesses viz:
1.     Children;



2.     Aged persons
3.     Persons suffering from disease; and
4.     Mentally unsound persons.
However, the test of competence is the ability of the witness to understand questions asked and give rational answers to them. In Asuquo Eyo Okon v. The State (1988) ANLR 173 at 186, Agbaje JSC said:
“Since all persons are competent to testify, until the competence of a witness to testify is challenged for any of the reasons stated in the section there is in my view no obligation on the court to determine the competence of a witness to testify”.
Compellability on the other hand is the obligation imposed on a competent person to attend or give evidence in court.
It should be noted that every compellable witness is competent but not every competent witness is compellable.
However, section 155(2) of the Evidence Act states that such witnesses of unsound mind  shall only be incompetent if they do not understand the questions put before them and thereby cannot furnish rational answers to the questions they are being asked. The provision provides thus:
“A person of unsound mind is not incompetent to testify unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them”.
The evidence given by incompetent witnesses are inadmissible in court.
In order to ascertain the competence of any person in the above category, the court is expected to administer some tests.
CHILDREN
In the case of children of tender years, section 183 of the Evidence Act prescribes the test and this is mainly what has been used in many cases. Though, a child of tender years is not defined in the Evidence Act, however, it is trite law that any person below the age of 14 years is a child for the purposes of sections 155 and 183 of the Evidence Act – Okon & Ors. v. State (1988) 1 NWLR (Pt. 69) 172; Nbele v State (1990). In Nbele's case, the Supreme Court explained the steps to be taken by the trial court in order to test the competence of a child pursuant to section 155(1) and section 183 of the Evidence Act –

STEP 1: The court will put questions to a child to test his cognitive ability [intelligible questions] to see if he can provide a rational answer. The question need not be related to any fact in issue

STEP 2: If he passes the first test, the court will then ask him if he understands the duty of speaking under oath or the nature of an oath.

STEP 3: He will be given an opportunity to testify on oath if he passes the second test and such testimony is as good as that of an adult.
It shall not require corroborative evidence in order for the court to convict the accused person based on the evidence alone – section 183(2).

STEP 4: If he fails the second test, he shall not be put on oath but will give unsworn evidence. Such evidence if it is the only credible evidence on record will require corroborative evidence – section 183(2)

A trial court is not bound to administer this preliminary test all the time. Judicial attitude shows that the prescribed test is only a guide to determine the child's cognitive ability and of the duty of speaking the truth. Thus, 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. Thus the procedure can be abridged – Okoye v. State (1972) 1 All NLR (Pt. 2) 500; Okoyonmo v. State (1973) NMLR 292; Okon & Ors. v. State (supra).
In Sambo v. The State (1993) SCNJ 128, the Supreme Court held inter alia that non-observance of the procedure laid down in section 155 is not a mere irregularity but one which will render the evidence given in breach thereof, a nullity.
AGED PERSONS, PERSONS SUFFERING FROM DISEASE, AND MENTALLY UNSOUND PERSONS
Aged persons are also competent witnesses except in instances where they do not understand the question put before them and cannot answer the question.
The test used to determine the competence of aged persons is the same used for that of children.
Mentally unsound persons are however competent persons but they lose their competency and become incompetent if they are robed of their mental capacity to understand the questions put before them and they cannot furnish rational answers due to their conditions – section 155(2) of the Evidence Act.
However, a person who is insane on one matter but understands an oath, may be capable of giving evidence of another matter unaffected by his mental disorder – R v. Hill 2 (1851) 2 Den C. C. 254. In such instances, his evidence will be admissible in court.
A deaf and dumb can be a competent witness by the use of signs, gestures or writing and such answers will be admissible as oral evidence and such evidence must be given in open court – section 156 of the Evidence Act.
Objections may be raised against the competency of a witness (to testify in a case) on the ground that:
1.     The witness is unable to express himself in any way which the court can be made to understand.
2.     The witness is incapable to tell the truth. This is usually on the ground on which the competency of persons of tender age is challenged. When such objection is raised, the court takes step to ascertain whether or not the person concerned does in fact appreciate the duty of telling the truth.
3.     The witness lacks personal knowledge of the matter in respect of which he is called to testify. For instance, the native law and custom of a particular area – section 59 of the Evidence Act.
4.     The witness is not qualified in the special field where his opinion testimony is required as an expert.
CORROBORATION
This was defined by the Supreme Court in Nwambe v. The State (1995) 3 SCNJ 77 at 94, as:
“A confirmation of a witness’ evidence by an independent testimony. It is evidence which shows or tends to show not merely that the crime has been committed but that it was committed by the accused.”
One could infer from the above that corroboration is a piece of evidence which confirms, reinforces or supports another piece of evidence of the same fact. It could also be defined as confirmation, ratification, verification or validation of existing evidence coming from another independent witness or witnesses.
Corroboration need not be direct that the accused person committed the crime. It suffices if it is mainly circumstantial evidence connecting the accused with the crime – Balogun v. Attorney-General of the Federation (1994) 8 NWLR (Pt. 345) 450.
However, where the evidence of a witness requires corroboration, once that evidence is found to be unreliable, then the corroboration is worthless and there is nothing to be corroborated – Obri v. The State (1997) 7 NWLR (Pt. 464) 1.
The general rule is that evidence does not need to be corroborated for it to be accepted by the court. A case may therefore be proved by one credible witness and not necessarily a lot of witnesses. However, corroboration is rarely required in civil cases – Jatau v. Danladi (1995) 8 NWLR (Pt. 415) 593.
The exception to this rule in civil cases is an action for the breach of promise of marriage – section 177 of the Evidence Act.
The burden of proof, sometimes called onus of proof, may be described as the obligation which a witness bears to convince the Court or tribunal about the truth or existence or falsehood or non-existence of a fact that is called into question before the court. This in civil cases, is the establishing of a case either by preponderance of evidence or the burden of producing evidence whether at the beginning of the case or at any other period throught the trial. It is mostly used in the sense of introducing evidence.
The basic principle underlying burden of proof is that he who asserts an allegation whether affirmatively or not must in order to succeed, prove same and not he who denies the allegation. This is available under sections 135 to 137 of the Evidence Act.
(1)  “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
(2)  “When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
Section 136:
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
(1)  “In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no more evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
(2)  “If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
(3)  “Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”
[j5] By the above sections, it means that the burden of proof is not static. It moves from one party to the other. Section 137(1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side while subsection (2) moves it to the adverse party.
However, the burden of proof is mostly on the plaintiff but not always. In Sokoto Furniture Factory Ltd. v. Societe Generale Bank (Nig.) Ltd. (2003) FWLR (Pt. 186) 693 at 706, the Court of Appeal held that the onus of proof is on the plaintiff being the party who will lose if no further evidence is tendered in court.
In Ojukwu v. Obasanjo (2003) FWLR (Pt. 182) 1766, the Court of Appeal held inter alia that:
“In a civil case, the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Further, in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence were produced in respect of thos facts.”
In Songhai Ltd. v. U. B. A (2004) FWLR (Pt. 189) 1244 at 1258, it was held that the basic principle governing the incidence of burden of proof is that he who asserts must prove. This is only a rule of   deciding on whom the obligation of going further if he wishes to win, rests.
This in civil cases, has to do with the preponderance of evidence or the balance of probabilities. In determining either preponderance of evidence or balance of probabilities in evidence, the court is involved in some weighing by resorting to the imaginary scale of justice in its evaluation exercise. Thus, all the plaintiff needs do is to prove to the court that his case is more probable or likely to be true than that of the defendant – Mogaji v. Odofin Bello (1978) 3 SC 91.
Proof by preponderance of evidence simply means that the evidence adduced by the plaintiff should be put on one side of the imaginary scale and the evidence adduced by the defendant should be put on the other side of the scale and weighed together to see which side preponderates – Mogaji v. Odofin Bello (supra); Alhaji Balogun v. Alhaji Labiran (1988) 3 NWLR (Pt. 80) 66.
This does not mean that the trial judge should scale it mathematically by using figures, rather he should rely on his judicial and judicious mind to arrive at when the imaginary scale preponderates.
There are however four (4) notable instances where a higher degree of proof is required even though the satndard of proof in civil cases is said to be on the balance of probabilities. These are:
1.     Where there is allegation of crime;
2.     Where special damages are claimed;
3.     Where there is a claim for interest; and
4.     In matrimonial causes.

ADMISSIBILITY OF DOCUMENTARY EVIDENCE
Under section 2(1) of the Evidence Act, document was defined as:
“includes, books, maps, plans, drawings, photographs and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter”
The contents of a document must be proved by the production of the document in evidence and this is the combined effect of sections 76, 94 and 96 of the Evidence Act.
The admissibility of documentary evidence is however under section 91 of the Evidence Act.
Section 91(1) provides thus:
            “In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as, evidence of that fact...”
A statement in a document is admissible if it was made by a person having personal knowledge of the matter contained in it or if it was made in compliance with a duty to record it, subject to the other provisions laid down under the section.
CRITERIA FOR ADMISSIBILITY OF DOCUMENTARY EVIDENCE
Generally, three main criteria govern the admissibility of documents as evidence. These criteria are stated in the case of Okonji v. Njokanma (1999) 12 SCNJ 259 at 273.  The criteria are as follows:

1)    Is the document pleaded?
2)    Is it relevant to the enquiry being tried by the court”
3)    Is it admissible in law?

The last mentioned criterion refers to whether the document is in the form in which it could be admitted and also whether all conditions precedent to its admissibility has been fulfilled – A. C. B v. Umaru Gwagwada (1995) 5 NWLR (PT. 345) 25.
Once a document is held admissible, Section 132 of the Evidence Act applies where a document is admissible. Section 132 of the Evidence Act deals with exclusion of oral evidence by documentary evidence. Where a document is admissible, the question whether or not such document is produced from proper custody is irrelevant to admissibility. Proper custody only goes to the issue of the weight to be attached to the document after it has been admitted – Torti v. Ukpabi (2000) FWLR (Pt. 29) 2481 SC. But an unsigned document is inadmissible – Attorney-General Kwara State & Anor. V. Chief Alao & Anor. (2000) 9 NWLR (Pt. 671) 84 at 104.
It should also be noted that the admissibility of any evidence, documentary evidence inclusive depends on the purpose for which such evidence is tendered – Jeseph Abgahonovo v. Akpata Eduyegbe (1999) 2 SCNJ 94 at 105.
PRIMARY AND SECONDARY EVIDENCE
Section 93 of the Evidence Act states that the content of documents may be proved either by primary or secondary evidence except in cases in which secondary evidence relating to documents may be given.
PRIMARY DOCUMENTARY EVIDENCE
Primary evidence is defined under section 94(1) of the Evidence Act, as the document itself produced for the inspection of the court.
USES OF PRIMARY EVIDENCE –
1.     It is used where a document has been executed in several parts;
2.     It is used where a document has been executed in counterpart; and
3.     It is used where a number of documents have all been made by one uniform process – section 94(2), (3) and (4) of the Evidence Act.
Secondary evidence is inferior to the primary evidence and it becomes admissible when the primary evidence is lost or inadmissible. Thus, the primary evidence is superior to the secondary evidence.
Secondary evidence may be in different forms, that is, it may be in the contents of another document or it may be the oral accounts of the contents of the relevant document.
USES OF SECONDARY EVIDENCE –
1.     It is used when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person legally bound to produce it;
2.     It is used when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
3.     It is used when the original has been destroyed or lost and in the latter case all possible search has been made for it;
4.     It is used when the original is of such a nature as not to be easily movable;
5.     It is used when the original is a public document within the meaning of section 109 of the Evidence Act;
6.     It is used when the original is a document of which a certified true copy is permitted by the Evidence Act, or by any other law in force in Nigeria, to be given in evidence;
7.     It is used when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection; and
8.     It is used when the document is in an entry in a banker’s book – section 97(1) of the Evidence Act.
OPINION EVIDENCE
A witness is only allowed to testify to facts known to him. An opinion exists in the thinking, imagination or understanding of the maker while facts refer to reality, and the true or actual state of things. Whereas, facts are objective and concrete, opinions are subjective and fickle.
As a general rule, the law of evidence does not allow a witness to give his opinion as to the existence of a fact in issue or relevant fact.
Section 66 of the Evidence Act provides thus:
“The fact that any person is of opinion that a fact in issue, or relevant to the issue does or does not exist is irrelevant to the existence of such fact except as provided in sections 57 to 65 of this Act.”
Thus, when a person, whether he is a party himself, or a third party, is called upon to testify, he cannot give his opinion as to the existence or non-existence of a fact in issue or relevant fact.
In Hollington v. Hawthorn & Co. Ltd. (1943) KB 587 at 595, it was stated that although a by-stander may have a complete and full view of a motor accident, he can only inform the court of what he saw and may not express an opinion on the question whether either or both of the parties was negligent.
The English case of R v. Loake (1911) 7 Cr. App. Rep 268, where the Court rejected the request of the defence counsel so far as the witnesses were concerned by holding that the friend’s evidence was clearly inadmissible, and that the magistrate was not an expert.
The exceptions to the rule of opinion evidence are –
1.     Opinion of experts; and
2.     Opinion of non-experts.
EXPERT WITNESS
This is one of the exceptions to the rule of opinion evidence. Under the Evidence Act, opinions of expert witness are admissible.
Under section 57 of the Evidence Act, experts are defined as those specially skilled in matters of foreign law, native law or custom, science or art, identity or handwriting or finger impressions, and their opinions are declared to be relevant by the Act and therefore admissible.
In Aigbadion v. The State (1999) 1 NWLR (Pt. 586) 173, the court stated that the term ‘expert’ is elusive because there is no guideline from the statutory provisions on how to identify an expert with a degree of certainty. Following a long line of decisions on the subject, the court maintained that there is no provision that the special skill attributable to an expert must be acquired through formal education professionally or otherwise. It is enough that the person claiming to be an expert has the skill that he professes to have. The party calling an expert witness has a duty to elicit from such a person in the witness box, evidence of the basis of his claim as an expert. And it is the duty of the opposing counsel where the circumstances are appropriate, to cross examine the said expert incisively in order to raise doubt as to the witness expertise.
(a)   Opinion on Point of Science or Art – Opinion of experts specially skilled in the area of science or arts is relevant where the court is to form an opinion on a point of science or art – section 57 of the Evidence Act; Tittidabale v. Sokoto Native Authority (unreported) [1964] 1 Nigerian Law Journal page 123. The term science and art are used broadly and include determination of cause of death or the distance from which the fatal missile was launched both of which have been held to be within the competence of a medical doctor – Oguonzee v. The State (1998) 5 NWLR (Pt. 551) 521.
(b)  Opinion as to foreign law – Where the court is to form an opinion of foreign law, the opinion of experts acquainted with such foreign law is relevant – sections 57 and 58 of the Evidence Act. But note that a person need not be a legal practitioner to be qualified as an expert in foreign law, he only need to be acquainted with such law – Ajani v. Comptroller Of Customs (1952) 14 WACA 34. It was held by an English Court in Brailey v. Rhodesia Consolidated Ltd. (1910) 2 CH 95, that a reader in the Roman-Dutch law to the Council of Legal Education in London was an expert in Roman - Dutch law.
(c)   Opinion as to native law and custom – By sections 57 and 59 of the Evidence Act, the opinion of native chiefs and other persons having special knowledge of native law or custom are relevant whenever the court is to form an opinion on a point of native law and custom (Customary Law). Also books and manuscripts recognized by natives as legal authority are also relevant for this purpose – Adedibu v. Adewoyin (1951) 13 WACA 191.
(d)  Opinion as to handwriting – Opinion of experts as well as non-experts is relevant where the court is to form an opinion as to handwriting. Expert opinion in this case is covered by section 57 of the Evidence Act and would include evidence of persons specially skilled in identity of handwriting.
Non-expert is covered by section 61 of the Evidence Act and could be given by a person acquainted with the writing in issue. For when a person is said to be acquainted with a handwriting, the court may compare a disputed handwriting with one admitted or proved to have been written by that person – section 108 of the Evidence Act; Teich v. Northern International Market Ltd. (1987) 4 NWLR (Pt. 56) P. 441. The court may also extract from a person present in court any writing or finger impression for the purpose of such comparison provided that such extracted finger impression must be destroyed at the end of the proceedings.
Note that where the document is made by an illiterate, it must also satisfy the provisions of the illiterate Protection Law requiring jurat for it to be admissible. Otherwise the document cannot be admitted against the illiterate but may be admitted at his instance – Barclays Bank v. Hassan (1961) All NLR 836.
SUBPOENAS AND WITNESS SUMMONS
Subpoena is a latin word – ‘sub’ means under; and ‘poena’ means penalty.
Subpoena is a writ of summons issued in an action or suit requiring the person to whom it is directed to be present at a specified place and time, and for a specified purpose, whereby a penalty will be given for failure to appear.
USES –
In the High Courts, subpoena is usually used to compel a witness to attend court.  The two major types are:
1)    Subpoena ad testificandum; and
2)    Subpoena duces tecum.
Subpoena ad testificandum is used to compel a witness to attend court and testify in court. Whilst Subpoena duces tecum is used to compel a witness to attend court with certain documents to give evidence.
It should however be noted that by virtue of sections 192 and 193 of the Evidence Act, where a person is summoned to produce a document without being summoned to give evidence, if he causes the document to be produced in court, the court may dispense with his personal attendance. For example, if the Inspector General of Police is summoned to produce a document through subpoena duces tecum, he can comply with the subpoena by causing the document in issue to be produced by any of his subordinates. Also, that a person so summoned to produce a document does not become a witness stricto sensu by the mere fact that he produced the document and he cannot be cross-examined unless and until he is called as a witness.
PROCEDURE FOR ADOPTING WITNESS’ STATEMENT ON OATH
1.     The court is to ask a witness as soon as he steps into the witness box whether he is a Christian, or a Moslem, or whether he belongs to any other religious body.
2.     If the witness belongs to any of the above, he is sworn in accordance with the provisions of the Oaths Act
3.     Where a person declares to the court that his religion does not permit the taking of an oath, the court may allow such person to give evidence not on oath provided the court thinks it just and expedient
4.     Also, a person who has no religious beliefs (e.g. a pagan) may be allowed to give evidence without taking oath – section 181 of the Evidence Act.
5.     Where evidence not given upon oath has been received, a record of this and reasons for such reception must be recorded in the minutes of the proceedings – section 182(2) of the Evidence Act.
ETHICAL ISSUES
1.     A lawyer shall not engage in any conduct which is unbecoming of a legal practitioner – Rule 1 of the Rules of Professional Conduct (RPC), 2007.
2.     A lawyer shall not disclose his client’s oral or written communications – Rule 19(1) of RPC.
3.     A lawyer shall not conduct a civil case or make defence in a civil case when he knows or ought to know that it is intended merely to harass or to injure the opposite party or to work oppression or wrong – Rule 24(3) of RPC.
4.     A lawyer shall not participate in a bargain with a witness either by contingent fee or otherwise as a condition for giving evidence – Rule 25(2) of RPC.
5.     A lawyer shall not state or allude to any matter which he has no reasonable believe is relevant to the case or that will not be supported by admissible evidence – Rule 32(3) (a).
6.     A lawyer shall not intentionally or habitually violate any established rule of procedure or of evidence – Rule 32(3) (e) of RPC.
7.     If a lawyer is embarrassed by a client’s confidential disclosure, he has a duty to withdraw from the case under good cause; or to defend the client – Rule 21 of RPC.
8.     A lawyer must not do any act that will delay, obstruct or affect the administration of justice – Rule 30 of RPC.
Proof of facts.
# Ltd to relevant facts; section 6-18 EA.
# all facts must be proved by evidence except-admitted, presumed, &judicially noticed facts.
# certain facts are generally not admissible in evidence- evidence of xter, similar facts, opinion, hearsay, estoppels &privileged communication (Note the exceptions)

MEANS OF PROOF
# Oral, real & documentary
# Oral evidence must be direct-77 EA
# Real evidence maybe movable or immovable- visit to locus inquo- 77(d) (ii) EA, Ipinlaye v. Olukotun

 [j1]This is very important to note.
 [j2]Nid for corroboration =on appeal, quashing of verdict in its absence.
No nid for corroboration =on appeal, quashing of verdict reached unless miscarriage of justice is occasioned.
 [j3]Legal responsibility to prove a case or a particular fact therein.
 [j4]Legal/general burden
 [j5]Evidential burden. Note also sections 138, 139, 142.
 [j6]Quantum of evidence sufficient to prove a case or particular fact or to discharge the burden of proof.
 [j7]Forged documents are admissible. The issue of its genuineness will arise after it has bin admitted.

Post a Comment

2 comments:

  1. I Am Pase8:24 pm, June 19, 2017

    This really helped me. Especially the part of competence and compellability of a child, it clarified it for me. Thanks

    ReplyDelete
  2. Blogger5:10 am, October 05, 2017

    I was researching for a post and I this article helpful. Thanks

    ReplyDelete

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