ABSTRACT
Determination of lawsuits is highly dependent on these availability of evidence. In law, every person is a competent witness in any judicial proceeding unless otherwise prevented by the law. And every compellable witness is a competent witness as the court will not compel anyone to give evidence, if he is incompetent to do so.
However, it is not every competent witness that is compellable in court. Competence does not imply ‘reliable,’ thus a witness may legally speaking not be able to give evidence for several reasons. For example, the witness may be a child who is too young that he/she cannot understand the questions put to him or give rational answers to them. Compellability on the other hands deals with the question whether as a matter of law, witnesses can be obliged to give evidence when they do not wish to do so but there are some circumstances in which competent witnesses cannot be obliged to give evidence against their will. This long essay therefore aims at analyzing the competency and compellability of a child to give evidence as a witness with respect to how it affects availability and admissibility of evidence.
Chapter one of the long essay which is introductory explains the objectives, focus, extent and limitation of the study as well as the methodology employed in carrying out the research. Chapter two gives an insight as to the elements of the topic by explaining what Competency and Compellability of a witness imply. In chapter three the long essay considers who a child is in law and the conditions for the admissibility of his testimonies. While chapter four sheds light on issues relating to compellability of a child witness and the effect of compelling an incompetent child witness. Lastly, chapter five summarizes the findings of the research and made far reaching recommendations were offered as a forward It is strongly believed that if recommendations made herein are taken seriously and reflected in proposed amendment to the Act, the would go along way in improving the state of the law in that direction.
TABLE OF CONTENTS
COVER PAGE…………………………………………………………i CERTIFICATION PAGE……………………………………………ii ABSTRACT…………………………………………………………….iii TABLE OF CONTENTS……….……………………………………….iv DEDICATION….…………………………………………….………vii ACKNOWLEDGEMENT………………………….……………….viii TABLE OF CASES……………………………………….…………..x TABLE OF STATUTES…………………..…………………………xi LIST OF ABBREVIATIONS………..………………………………xii
CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION……………………………………………….1 1.1.0: BACKGROUND TO THE STUDY……………………………3 1.2.0: OBJECTIVES OF THE STUDY……………………………….4 1.3.0: FOCUS OF STUDY…………………………………………….4 1.4.0: SCOPE OF STUDY…………………………………………….5 1.5.0: METHODOLOGY…………………………………………….6 1.6.0: LITERATURE REVIEW…………………………………….6 1.7.0: CONCLUSION…………………………………………………8
CHAPTER 2
COMPETENCE AND COMPELLABILITY OF WITNESS
2.0.0: INTRODUCTION…………………………………….……….9 2.1.0: MEANING AND PRINCIPLES OF COMPETENCY AND COMPELLABILITY………………………………………………..11 2.2.0: PROVISIONS OF THE EVIDENCE ACT ON COMPETENCE AND COMPELLABILITY…………………………………………….…15 2.3.0: EXCEPTIONS TO THE GENERAL RULES…………..…19 2.4.0: CONCLUSION………………………………………………..25
CHAPTER 3
THE EVIDENCE OF A CHILD
3.0.0: INTRODUCTION………………………………………..…..28 3.1.0: A CHILD UNDER THE LAW………………………………30 3.1.2.0: TESTIMONY OF A CHILD IN CIVIL PROCEEDINGS……………………………………………………33 3.1.3.0: TESTIMONY OF A CHILD IN CRIMINAL PROCEEDINGS……………………………………………………35 3.2.0: ADMISSIBILITY OF THE EVIDENCE OF A CHILD…..37 3.3.0: THE FULL INQUIRY TEST………………………………39
3.3.1.0: PRELIMINARY QUESTIONS……………………………39 3.3.2.0: NATURE OF AN OATH ……………………………….41 3.4.0: THE ROLE OF THE COURT IN ADMITTING THE EVIDENCE OF A CHILD ………………………………………..46 3.5.0: CONCLUSION………………………………………………50
CHAPTER 4
EFFECTS OF UNCORROBORATED EVIDENCE OF A CHILD 4.0.0: INTRODUCTION……………………………………………52 4.1.0: COMPELLABILITYOF A CHILD…………………………54
4.2.0: THE EFFECT OF COMPELLING AN INCOMPETENT CHILD…………………………………………………………56
4.3.0: IMPORTANCE OF COMPETENCE AND COMPELLABILITY OF A CHILD………………………..60
4.4.0: THE POSITION OF THE EVIDENCE OF A CHILD TO PROVE A FACT…………………………………………….62
4.5.0: CONCLUSION……………………………………………….65
CHAPTER 5
GENERAL CONCLUSION
5.0.0 CONCLUSION………………………………………………68 5.1.0:RECOMMENDATION………………….…….…………….72 BIBLIOGRAPHY…………………………………………………..76 BOOKS………………………………………………………………76
TABLE OF CASES
NIGERIA
- Mbele v State [1990]4 NWLR (Pt.145) 48.
- Inspector General of Police v Suara Sunmonu (1957)WRNLR 23.
- State v Njokwu Obia 4 ESCLR 67.
- Okon v The State [1988]1 NWLR (Pt.76)172.
- Idiong and Anor v The King (1950)18 WACA 30.
- Lamu v The State(1967) NMLR 228.
- Shazali v The State(1988)5NMLR Pt.164.
- R v Campbell (1946) NMLR 185 at 187-188.
- Muhammed Lawal Maiduguri v The State(1969) NMLR 143.
- Simon Okoyomon v State(1973) NMLR 292.
- Nasiru Ogunsi v The State(1994) 12 NWLR(Pt. 53) 1 at 6-7.
- John Okoye v The State(1972) 12 SC 21.
- Lamu v The State(1967) NMLR 228.
UNITED KINGDOM
- Hoskyn v Commissioner of Police for Metropolis (1999) AC 474.
- Ex parte Fernandez [1861]10 CBNS 39.
- R v Dunne 21 Cr AR176
- R v Surgenor 27 Cr AR 176.
- R v Southern(1930) 22 Cr App R.6.
- R v Hayes (1977) 1 WLR 234.
TABLE OF STATUTES
NIGERIA
- Criminal Code Act Cap. C 38 LFN 2004.
- Constitution of the Federal Republic of Nigeria 1999, Cap. C 24 LFN 2004.
- Children and Young Persons Act, Cap. C… LFN 2004.
- Evidence Act Cap. E14, LFN 2004.
- Penal Code (Northern Nigeria Federal Provisions) Act Cap P3 LFN 2004.
- Supreme Court Ordinance No.11 of 1863.
LIST OF ABBREVATIONS
A C: Appeal Cases Law Reports
All N L R: All Nigeria Law Reports
A N L R: All Nigeria Law Reports
A N S L R: Anambra State Law Reports
Cap: Chapter
Ch.: Chancery Division
FSC: Federal Supreme Court
H C N L R: High Court of Nigeria Law Reports
J S C: Justice of the Supreme Court
L L R: Lagos Law Reports
L R N: Law Reports of Nigeria
N L R: Nigeria Law Reports
N M L R: Nigeria Monthly Law Reports
N N L R: Law Report of Northern Nigeria
N S C C: Nigeria Supreme Court Cases
S C: Supreme Court
S C N J: Supreme Court of Nigeria Judgments
S C N L R: Supreme Court of Nigeria Law Reports
W A C A: West African Court of Appeal
W N L R: Western Nigeria Law Reports.
W R N L R: Western Region of Nigeria Law Reports
CHAPTER 1
GENERAL INTRODUCTION
1.1.0: INTRODUCTION
Issues relating to competence and compellability of child evidence in Nigerian law of evidence are though becoming a recurrence and popular with the availability of case laws and statutes regulating the subject matter, yet it is not out of point to assert that it has not received its deserved attention1.
However, the law of Evidence remains the channel for proper regulation of the legal process. And evidence has been defined as:
Any specie of proof or probative matters legally presented at the trial of an issue, by the act of the parties and through the medium of witness records, documents, exhibits, concrete objects for the purpose of inducing belief in the mind of the court or judiciary as to their contention.
1 Black H.O,Blacks Law Dictionary(6th ed.Paul Minn West Publishing Co,1979)689.
At Common Law, it is not all evidence given in court that may be held admissible, for instance before a child can give evidence which will be admitted, such child must be and compellable witness. Therefore, a proper attention will be given to the definition and meaning of competence and compellability, its nature and principles and the position it occupies in the law of evidence.
Also worthy of addressing is who child is in law? And the conditions which such child must satisfy before he becomes a competent and compellable witness. Importantly, as giving of evidence by a child may have some negative effects, it has been advocated that there should be a systemized way of receiving a child’s evidence with proper consideration of the situation of the child and determination of whether the child is induced by a third party.
Also, attention will be paid to the effect of giving evidence in court and why most children may feel reluctant to give evidence in court as well as the issues risk of hysterical invention, childish imagination and collisions which may be inherent in the evidence of a child in Nigerian courts.
1.1.0: BACKGROUND TO THE STUDY
This long essay focuses on competency and compellability of a child to give evidence before Nigerian courts. The meaning, general principles, importance, provisions of the Evidence Act as well as the exceptions to the general rule in Section 155(1) of the Evidence Act2 would be examined.The essay would also explain who a child is in law, the testimony of such a child in civil and criminal proceedings as well as the conditions for the admissibility of such evidence. More importantly, the long essay examines the effects and defects of wrongfully admitting evidence by a child in court.
Cap E14 Laws of the Federation of Nigeria,2004.
1.2.0: OBJECTIVES OF THE STUDY
The main reason for venturing into the subject mater of this long essay is to bring out and explain the procedure and practices of the Nigerian courts in relation to the admissibility of child evidence as well as the importance and nature of competence and compellability as in relation to child.
The long essay would also appraise and analyze the role of and what should be the role of the courts in ensuring that the evidence of a child is credible enough to be admitted and the conditions. It is hoped that the reader of the long essay would on careful perusal of the essay appreciate the competence of a child in law.
1.3.0: FOCUS OF STUDY
This long essay explains competency and compellability as regards child evidence and examines the conditions which a child must satisfy before he or she becomes a competent and/or compellable witness in courts of law. The essay focuses mainly on the relevant approaches of the courts as it relates to the competency and compellability of a child and the methods to be adopted.
1.4.0: SCOPE OF STUDY
This long essay is writing basically within the ambit of its title. Chapter one is on the general introduction which includes background of the study, objectives of the study, focus of study, scope of study, research methodology adopted, and review of related literatures as well as definition of terms having peculiar meaning. Chapter two dwells on the definitions and principles relating to competence and compellability, the provisions of the Evidence Act thereon and the exceptions to the general rule.
Chapter three explains the evidence of a child, who child is in law and the conditions for the admissibility of his evidence. Chapter four deals with the implication of uncorroborated evidence of a child, effects of wrongful admission or rejection of a child evidence, the importance of competence and compellability and the negative effects of our court process on the child witness while chapter five dwells on the conclusion and recommendations to strengthen competency and compellability of child evidence before the Nigerian courts.
1.5.0: METHODOLOGY
This essay is basically library based. The method adopted for the study is descriptive analysis and general appraisal. And for a thorough exposition of the subject of the work the essay would source its materials from both primary and secondary sources of law.
The primary sources include basically the Evidence Act (now Cap. E14 LFN, 2004), Children and Young Persons Act Cap C4 LFN, 2004, Criminal Procedure Act Cap. C 41 LFN, 2004 and Case laws. The secondary sources include textbooks both foreign and local textbooks, journal articles and lecture notes on evidence.
1.6.0: LITERATURE REVIEW
The fact that this area of the law is not new can not be denied as there are sufficiently available texts and learned journals articles in which opinions have been expressed on almost every aspect of the law in this area in Nigeria. It is not however, being suggested that this long essay would be copying the works of others in to this long essay, but to find a strong foundation for the present presentations and to examine earlier opinions. After all, precedents thrive well in law. And more so, it is important to add that there are scanty or virtually no available literatures exclusively on the topic as a basic theme. Hence, there is no one text dealing exclusively with the subject of this study.
As a result of the above, apart from the Evidence Act, the Children andYoung Persons Act whose provisions will be useful in defining who a childis, worthy of reference is also the Criminal Procedure Act3 other materials to be appraised include the works on law of evidence of learned authors like Aguda on Law relating to evidence in Nigeria, Christopher Allen’s
Practical Guide to Evidence, Richard May on Criminal Evidence, PeterMurphy Murphy on Evidence, Edward Phillips Brief Case On Law OfEvidence, Afe Babalola’s Law and Practice of Evidence in Nigeria.
3 Cap C41 Laws of the Federation of Nigeria,2004.
Similarly, opinions expressed in the class lectures and notes would be a subject matter of close scrutiny. Finally, it is importance to add that because of constraints of time and space, not all the various material source employed in this work are fully reviewed except those that are of direct importance to the subject matter of this work.
1.7.0: CONCLUSION
In conclusion, there is a presumption that everybody has the capacity or is competent to give evidence in court. This presumption is rebuttable where a person is prevented from understanding questions put to him or giving rational answers to those questions by reason of tender age or disease of the body or mind. If a judge is in the opinion that a child is capable of understanding the nature of an oath and the duty of speaking the truth, he must warn himself so as not to judge based on the uncorroborated evidence
of an incompetent child.
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