COMPETENCE AND COMPELLABILITY OF WITNESSES

There are two preliminary issues to be considered before evidence may

be given in any trial. First, is a witness a person who may or may not be
called to give evidence? Second, is a witness a person who may be
required to give evidence? While the former question borders on the issue
of the competence of witnesses to give evidence in Court, the latter
borders on the issue of compellability. Hence, competence refers to the
ability or capacity to give evidence in Court, while compellability refers to
the capacity of a witness to be forced to give evidence in Court. The mere
fact that a witness is competent to give evidence does not make such
witness compellable to give evidence. However, a compellable witness is
generally a competent witness as such witness may not be compelled if
he were not competent to give evidence. In other words, competence is a
prerequisite for the compellability of a witness.

A. COMPETENCE
According to the EA, all persons are generally competent to testify as
witnesses in any proceeding before any Court in Nigeria. However, where
a person does not possess sufficient intelligence to understand questions
put to him, or give rational answers to those questions, such a person
becomes an incompetent witness. The EA further specifies such category
of persons that may be incompetent including, children, old people,
persons afflicted with either bodily or mental disease or any other cause
of unsound mind, Section 175(1). Notwithstanding, a person is not
incompetent to testify only by reason of his unsound mind unless he is
prevented by his mental infirmity from understanding the questions put to
him and giving rational answers to them, Section 175(2). Likewise, a
dumb person is not incompetent to testify only by reason of his inability to
speak, Section 176. Summarily therefore, the primary consideration in the
determination of the competence of a witness is that of understanding. As
noted by the Supreme Court in SOLOLA v. STATE (2005) 11 NWLR (Pt.
937) 460, competency is not a matter of age but that of intellectual
capacity with the effect that all persons irrespective of their age are
competent to testify in Court provided they have the mental capacity and
the intelligence to understand questions put to them.
Thus, an accused person and the spouse of an accused person, as well as
co-accused persons charged with the same offence and being tried
together and the spouses of such co-accused persons are generally
competent witnesses in criminal proceedings, Section 179. However,
before a co-accused person can be competent to give evidence for the
prosecution against the other accused persons, he must himself have
pleaded guilty to the offence charged, EMMANUEL UMOLE & ORS v. IGP
(1957) NRNLR 8. Also, an accomplice is generally a competent witness for
 the prosecution in criminal proceedings, Section 198. Parties to civil suits
and their spouses are also generally competent witnesses in civil
proceedings, Section 178.

EXCEPTIONS TO THE GENERAL RULE ON COMPETENCE

i. CHILDREN – Two conditions generally determine the competence of a
child to give evidence. First, the child must not be prevented from
understanding questions put to him or giving rational answers to
those questions by reason of tender years, Section 175(1). Second,
based on the general rule of evidence that oral evidence shall be
given on oath or affirmation (Section 205), the child must be able to
understand the nature of an oath, and the obligation of speaking the
truth. It is the duty of a Court before which a child appears as a
witness to determine whether such a child fulfils these conditions.
Where a child passes both tests, he is deemed competent and his
testimony admissible, but where he fails the first test or both tests, he
is generally deemed an incompetent witness and his testimony
inadmissible. However, where a child passes the first test but fails the
second test, he is still regarded a competent witness in any
proceeding. In such instances, the child is permitted to give unsworn
evidence in so far as he understands the duty of speaking the truth,
Section 209(1).
ii. PERSONS OF WEAK INTELLECT – extreme old age and disease of the
body or mind do not automatically make a witness incompetent. Like
in the case of a child, the question will be whether in the
determination of the witness’ testimonial capacity, the Court is
satisfied that the witness has sufficient mental capacity to understand
questions that may be put to him and give rational answers to them,
Section 175(1) & (2). Hence, even an insane person can be a
competent witness during a lucid interval.
NOTE: any other cause of the same kind as contained in Section 175
may include intoxication.

B. COMPELLABILITY
Generally, every competent witness may be compellable witnesses.
This is however subject to the following exceptions:
i. BANKERS – a banker or an officer of a bank or other financial institutions
shall not, in any legal proceeding to which the bank or financial
institution is not a party, be compellable to produce any banker’s
book or financial book, the content of which can be proved by
secondary evidence, or to appear as a witness to prove the matters,
transactions and accounts recorded in such book, unless by an order
of the Court made for special cause, Section 177.
ii. ACCUSED PERSONS – although an accused person is a competent
witness in his criminal trial, Section 179, such competence is with
regard to his defence, Section 180. However, an accused person may
not be compelled to give evidence in his defence, neither may he be
a compellable witness for the prosecution. By virtue of the
fundamental human right of an accused person, he cannot be
compelled to give evidence in his own criminal trial, Section 36(11)
CFRN (1999, as amended). It is noteworthy that the failure of an
accused to give evidence in his own defence shall not be made
subject of any comment suggesting the inference that he is guilty of
the offence charged, Section 181.
iii. SPOUSAL TESTIMONY IN CRIMINAL PROCEEDINGS- even though a
party’s spouse may be a competent witness in a criminal proceeding,
such is generally not a compellable witness. However, where an
accused is charged with an offence against the property of his
spouse, or with inflicting violence on his spouse, or with sex-related
offences, the other spouse shall be a competent and compellable
witness for the prosecution or defence without the consent of the
accused spouse, Section 182(1). Where an accused is charged with
any other offence, the spouse is a competent and compellable
witness only upon the application of the accused spouse, Section
182(2). Notwithstanding, spouses may not be compelled to give
evidence of privileged communications, Section 182(3). The failure of
a spouse to give evidence in defence of an accused spouse shall not
be made a subject of any comment by the prosecution, Section
182(4).
iv. WITNESSES GENERALLY – a witness may not be compelled to answer
any question, which in the opinion of the Court, the answer is likely to
criminally incriminate the witness or the spouse of the witness,
Section 183. However, an accused person called as a witness for his
defence may be asked and is bound to answer any question during
cross-examination notwithstanding that such answer would
incriminate him, Section 183(a). Similarly, a party in a proceeding
instituted in consequence of adultery, standing as a witness in that
proceeding, shall not be compelled to answer any question tending to
show that he has been guilty of adultery unless he has already given
evidence in the same proceeding in disproof of the alleged adultery,
Section 186.
v. PRESIDENTS, GOVERNORS AND THEIR DEPUTIES - though competent,
these executive heads are privileged and cannot be compelled by any
Court process to appear before any Court while in office, Section 308
(1) CFRN. However, this privilege does not apply to civil proceedings
 against persons occupying such offices in their official capacity, or to
a civil or criminal proceeding where they are only nominal parties.
vi. JUDGES – as a matter of public policy, a Judge is precluded from
acting both as an adjudicator and a witness in the same case. A judge
is therefore an incompetent witness in a trial over which he presides,
ELEBANJO v. TIJANI (1986) 5 NWLR 982. However, a Judge may be a
competent witness but may not be compelled to give evidence, in
any other trial, of a case over which he presides or has presided,
whether as to his conduct in Court or as to anything which came to
his knowledge in Court while acting in the capacity of a Judge, Section
188.
vii. DIPLOMATS – diplomats and members of diplomatic missions such as
foreign envoys, consular officers, etc., and members of their families
are immune from legal processes in any Court making them
competent but not compellable witnesses, Section 1, Diplomatic
Immunities and Privileges Act.
viii. LEGAL PRACTITIONERS – the rules of professional ethics and morals
frowns at a legal practitioner standing as both a counsel and a
witness for his client in a proceeding. The Rules of Professional
Conduct for Legal Practitioners 2007 stipulate that except where the
role of a lawyer in a suit in respect of his client is indispensable, a
lawyer shall not accept to act in any litigation if he knows or should
know that he or a lawyer in his service may be called as a witness in
the litigation, Rule 20(1). On this issue, the Court in FEDERAL
REPUBLIC OF NIGERIA v. MARTINS & ORS (2012) 14 NWLR (Pt. 1320)
287, observed that even where a lawyer represents himself and
testifies for himself in a personal case, the same cannot be said of a
matter not personal to a lawyer. The reason according to the Court is
that it is tardy and not in tandem with the rules of practice for a
lawyer to prosecute a matter and then proceed to the witness box for
cross-examination at the same time.