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Monday 5 February 2018

ADMISSIBILITY OF EVIDENCE OF A CHILD UNDER NIGERIAN LAW: A CASE OF REVIEW





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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[1] Black H.O,Blacks Law Dictionary(6th ed.Paul Minn West Publishing Co,1979)689.
[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”;.  
[6] Per Aderemi J.S.C, Akinduro v. Alaya (2007) 6 S.C (pt. 11) 137  
[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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