CHAPTER ONE
GENERAL
INTRODUCTION
1.0.0 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 attention[1].
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[2].
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[3].
Also worthy of addressing is
who child is in law? And the conditions which such child must satisfy before he
or she 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[4].
1.1.0 Background
to the Study
Nigeria’s judicial process which adopts the adversarial system will be
incomplete without the common practice of calling witnesses. The burden of
proof as to any particular fact lies on that person who wishes the court to
believe in its existence[5] unless the law provides otherwise.
The court does not make a practice of granting a relief not sought.[6] In any event, it is trite that
wrongful admission of inadmissible evidence is not of itself a ground for the
reversal of any decision. Similarly, the wrongful exclusion of admissible
evidence is not of itself a ground for the reversal of any decision.
The
Evidence Act 2011 is a legislative bomb wiping out the clan of earlier
decisions of the apex court[7] and learned jurists who have written on this
subject, upholding the reviewed positions on the admissibility of the evidence
of a child witness. However, this blast deserves acclamation as doing otherwise
might be tantamount to academic masturbation as functus officio. The provisions
of Evidence Act No. 18 of 2011 as it concern the testimony of a child witness
-this Act which is procedurally the ‘index’ of all other laws in Nigeria came into effect on the 3rd
day of June 2011[8]. It extensively outlines how the onus
of proof on the relevant party in a suit is to be discharged.
The law governing the admissibility of evidence is found in the Nigerian
law of Evidence[9]. Issues relating to competence and
compellability of child evidence have been accorded much attention by the
judiciary in making sure that children in given evidence in court is not
misled. The idea of competency and compellability as it relates to the evidence
of children allows the court to ensure that a child gives rational answers to
questions put to him.
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[2] Chinwe
.J., Admissibility of Documentary/ Electronic Evidence Issues,
Challenges and Options, (Ibadan,
University
Press, 2009), p. 15.
[3]
Okojie D. ”Affidavit Evidence & Electronically Generated Evidence in
Nigerian courts” p. 169-177.
[4]
Yusuf O. A, “The Nigerian Evidence Act and Electronically Generated Evidence: A
Need to Fast Track the System, UK, FCIArb, p. 45
[5] Evidence Act 2011 s .134– “The burden of proof shall
be discharged on the balance of probabilities in all civil proceedings”;.
[7] C.F.R.N 1999 s. 235 provides for the finality of the
decisions of the Supreme Court.
[8] 12see Evidence Act 2011 s. 257 - “The Evidence Act
cap E14 Laws of the Federation of Nigeria 2004 is repealed”.
[9] Cap. P10,L.F.N.2004
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