AHMADU BELLO UNIVERSITY, ZARIA

FACULTY OF LAW
DEPARTMENT OF PUBLIC LAW
COURSE CODE: LWPU 404
COURSE TITLE: LAW OF EVIDENCE

ASSIGNMENT
QUESTION:
COMPETENCE OF WITNESSES OTHER THAN PRESIDENT, VICE
PRESIDENT, GOVERNOR AND THE DEPUTY GOVERNOR

By:

GROUP (5)

LECTURER: DR. SANI ABDULLAHI

JULY, 2023

i
 Introduction
For a case to be concluded in a court to the point of delivery of judgement, the parties to the
case must prove their case. One way of proving their case is by calling witnesses whose
testimonies will be admitted into evidence and form the basis of the judgement of the court.
The issue of who is eligilible to testify in any civil or criminal matter is often a front burner
question for every litigation based on legal practitioner. While there is a general provision
that everyone is competent to testify, the question remains whether there are people who are
not competent to testify and if there are such people what will affect their competency to
testify? To answer these questions, this work adopts the analytical method while making
reference to statutory and decided authorities.
Definition of Terms
Before delving into the legal definition of the key words here viz (1) Competence and (2)
witness, it makes better sense to find their basic English meaning.
Competence on its own implies the ability to do something well, while witness according to
the Long Man Dictionary of Contemporary English1 “witness is someone who sees a crime
or an accident or can describe what happen”. Black’s Law Dictionary2 give two definitions of
witness “a witness is a person who signs a documents or a person called to court to testify or
give evidence.
The concept of competence witness as a topic revolved around Section 175 of Evidence Act,
2011, 2011. Sub section (1) of Section 175 of the Act as a matter of general rule provides that
all persons are competent witness. However, this general rule is not without exceptions. It
should be noted that all compellable witnesses are competent witnesses but not all competent
witnesses are compellable witnesses, as we shall discuss some of them beneath. The work is
not prepared to talk on persons who were immune by the community reading of Section 308
of the Constitution of the Federal Republic of Nigeria 1999 As Amended. Therefore, this
work is more concerned with other persons than those mentioned in aforementioned section.

1
Long Man Dictionary of Contemporary English, 5th edition
2
Black’s Law Dictionary, 7th edition
1
 Section 175.1 EA3 has listed the non-competent witnesses to include children, extremely old
age persons with a disease of the body or mind, and any other cause similar to the above.
These exceptions will be discussed below:
1- Children
A child has been defined by Section 209 Evidence Act, 20114 to mean, a person below the
age of fourteen years. It further stated that when a child below the age of fourteen years is
tendered as a witness, such child will not be sworn and will give evidence otherwise than on
oath affirmation, if it is in the opinion of the court that the child possessed sufficient
intelligence to justify his evidence and understand the duty of speaking the truth.
Procedure for the Determination of the Child Intelligence in Court
The court in determining the level of understanding of the obligation to say the truth by the
child, the court will ask the child some preliminary questions which has 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 the questions or to answer them rationally, then the child
cannot be a witness at all in the first place. But if the child passes this test, he is submitted to
a further test for the determination of a further question whether he is in the opinion of the
court able to understand the nature of an oath.
This question is also determine by the court putting question to the child as to the nature of
an oath. He is asked about God and what will happen to one who tells lies after being sworn
etc. If he fails in this respect he will nevertheless be able to give his evidence but will not be
sworn, provided he has passed the first test under Section 209 of the Evidence Act, 20115
which provides: “in any proceeding in which a child who has not attained the age of fourteen
years is tendered as a witness such child shall not be sworn in and shall give evidence
otherwise than on oath or affirmation, if in the opinion of the court, he is possessed of
sufficient intelligence to justify the reception of his evidence and understand the duty of
speaking the truth.

3
LFN 2004
4
Ibid
5
Ibid

2
 The point must be emphasized here that the procedure sketched in the last paragraph must be
strictly followed. The order cannot be changed. And all these procedure cannot be determine
outside the court or after the child must has given evidence.
As Kestor J. Said in the case of William Omosiube vs. Commissioner of Police6 that: there
was nothing on the record to show that an investigation was first made in court, emphasis in
court, to justify admitting the child’s evidence on oath. This is a serious omission. It’s also
restated in the case of the State vs. Dan John.7
Effect of Unsworn Evidence of Child Below the Age of Fourteen Years
The effect is that the evidence cannot be relied upon solely without corroboration. As it was
held in Muhammed Ali vs. Kano State8, also in page 175 of Cases and Materials on the
Nigerian Law of Evidence prepared by Dr. Sani Abdullahi Department of Public Law
Ahmadu Bello University, Zaria where he cited numerous cases to buttress this point.
Therefore, the evidence must be corroborated; otherwise it will never be relied uopn.
Okwuaka vs. The State9.
However, where the child is a minor of some discernable age, her sworn evidence needs no
further corroboration. Shuaibu Isa vs. Kano State10. But the Evidence Act, 201111 in Section
209 (2) mandated the evidence of a child who has attained fourteen years to be on oath.
2- Persons of weak intellect
Section 175 (2) of the Evidence Act, 201112 clearly states that a person of unsound mind is
not an incompetent witness except if he is prevented by the infirmity from understanding the
questions put to him and giving rational answer to them.
Procedure
The procedure for determining sufficient understanding to give rational evidence and
understanding the obligation to say the truth, the procedures are virtually the same with the
one just mentioned earlier, the same procedure also applies to persons of extreme old age and
the persons with a disease of the body or mind.

6
(1959) WNLR 209 at 211-212
7
(1996) 3 PLR
8
(2018) LPELR-CA/J/337C/2007
9
(2018) LPELR-CA/OW/20C/2017
10
(2016) LPELR-SC.35/2013
11
LFN 2004
12
Ibid

3
 3- Dumb Witness
According to section 176 of the Evidence Act, 201113, a dumb person is both a competent and
compellable witness. The evidence of a dumb witness is either taken by sign language or a
written statement. Such evidence is treated as oral evidence.
4- Parties in Civil Suit and Criminal Proceedings and their Spouses.
According to Section 178 of the Evidence Act, 201114 in all civil proceedings, the parties to
the suit and the husband or wife of any party to the suit shall be competent. Also in criminal
proceedings the defendant’s wife or her husband as the case may be, or any person jointly
charged with such defendant and tried at the same time, and the wife or husband of the person
so jointly charged is competent to testify.
In criminal cases, the spouse of an accused is a competent witness for defendant and can be a
competent witness and compellable witness to the prosecution in the following instances:-
(a) Where the consent of the accused is not required according to Section 182 (1) of the Evidence
Act, 201115, where the defendant is charged with an offence listed in this section (offences
against the husband or wife and sex related offences) the spouse of the defendant is a
competent and compellable witness for the prosecution, the consent of the accused is not
required.
(b) Where the consent of the accused is required, according to Section 182 (2) of the Evidence
Act, 201116, where the spouse is charged with an offence not listed in Section 182 (1) of the
Evidence Act, 201117, the husband or wife is a competent and compellable witness only with
the consent of the spouse charged.
5- The Defendant
Section 36 (11)18 provides for the defendant’s right to remain silence. No person who is tried
for a criminal offence shall be compelled to give evidence. But under Section 180 (a) of the
Evidence Act, 201119, provides that the defendant on his/her own application is a competent

13
Ibid
14
Ibid
15
Ibid
16
ibid
17
Ibid
18
CFRN 1999 AA
19
LFN 2004

4
 witness in his/her defense or in defense of co-accused. In this circumstance, the defendant
will give evidence from the witness box, not the dock.
Section 180 (b)20 provides that “if the defendant testifies on his/her own application, he or she
may be asked any question in cross examination even if the answer will tend to incriminate
him or her as to the offence charged. Hence, the effect of the defendant testifying abrogates
the right against self-incrimination which the defendant will otherwise enjoy under Section
36 (11)21.
6- Co-defendant
A co-defendant is a competent and compellable witness in the following instances:-
(a) If the co-defendants are charged separately, the defendant is competent witness for the
prosecution and the defense.
(b) But if the accused persons are charged jointly the co-defendant is neither a competent witness
for the prosecution nor the defense unless:-
i. The co-defendant is tried separately
ii. The co-defendant is acquitted of the offence
iii. The charge against the co-defendant is withdrawn, or the nolle prosequi entered for
the co-defendant
iv. The co-defendant pleads guilty to the offence and is convicted.
7- Accomplice
According to Section 198 (1) of the Evidence Act, 201122, an accomplice is a competent
witness for the prosecution against the defendant. A conviction based solely on the
uncorroborated evidence of an accomplice is not illegal. Provided that if the only evidence
against a defendant charged with a criminal offence is the evidence of an accomplice which
is uncorroborated in any material particular implicating the defendant, the court shall direct
itself that it is unsafe to convict anyone on such evidence.
8- Legal Practitioner
According to Section 192 of the Evidence Act, 201123, no legal practitioner shall at any time
permitted unless with his client’s express consent to disclose any communication made to him

20
Ibid
21
CFRN 1999 AA
22
LFN 2004
23
Ibid

5
 in the course and for the purpose of his employment as such legal practitioner by or on behalf
of his client or to state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment or to disclose
any advice given by him to his client in the course and for the purpose of such employment.
(a) Any such communication made in furtherance of any illegal purpose or
(b) Any fact observed by any legal practitioner in the course of his employment as such,
showing that any crime or fraud has been committed since the commencement of his
employment.
Though a counsel is a competent witness, it is not proper for them to give evidence in a matter
in which he or she appears as a counsel, according to Rules of Professional Conduct for legal
practitioners24. Elabanjo vs. Tijjani25 where the court relied on a piece of evidence tendered
by the counsel of the plaintiff who initiated the proceedings in respect of the plaintiff’s claim.
Subject to the exception in sub section (1) (a and b) in Section 192 of the Evidence Act, 201126
no counsel shall at any time be permitted to disclose any communication made to him in the
course of his employment as counsel, unless with his client’s express consent. As in the
petition of Ohaneze vs. Arewa27 at Oputa panel where Bala na Allah as a counsel for Arewa
Consultative Forum tendered a piece of evidence which is coup speech purported to red by
General Bashir Salihi Magashi retired to the Oputa panel and Ohaneze objected. But the panel
allows it.
9- Banker
Section 177 of the Evidence Act, 201128 provides “a banker or an officer of the bank or other
financial institution shall not in any legal proceeding to which the bank or financial institution
is not a party, be compelled to produce any banker’s book of financial book, the content of
which can be proved in a manner provided in Section 89 and 90 of this Act29, or to appear as
a witness to prove the matters, transactions and accounts recorded in such book, unless by
order of court made for special cause”.

24
Rule 20 Rules of Professional Conduct
25
(1986) LLJR-SC
26
LFN 2004
27
(2000) Oputa Panel of Inquiry
28
LFN 2004
29
Ibid

6
 Conclusion
This work explores the issue relating to competence under the Nigerian Evidence Act, 201130.
The work defines the terms (competence and witness) and sought instances when a witness
will be competent. The work analyses the provisions of the Nigerian Evidence Act, 201131
and the reason for such provisions. Keeping at the back of our minds, only if there is a space
which I believe there is. That every case has life, and judges do have an output and their output
is not dressing is ruling and judgement, and without competent witness, there could hardly be
a valid judgement.

30
Ibid
31
ibid