Abstract In our adversarial system, parties are required to tender material evidence to establish the facts-in-issue upon which their claims, charges or defences are based. By giving evidence linking to the claim, charge or defence, the witness performs a duty of assisting the court to discover the truth of the matter. Generally, a competent witness may be adult, children or an old person. The thrust of this paper is to examine child evidence under the Evidence Act, 2011. The author adopted expository, analytical and comparative methods in conducting this research. The study found that under the Evidence Act, 2011, a child of fourteen years is permitted to give sworn evidence while children below fourteen years give unsworn evidence. The paper suggests that Section 209 (3) of the Evidence Act be amended to read "a child's evidence in crimi-nal proceedings shall be given unsworn, and such unsworn evidence may be taken as if that evidence had been given on oath", as it is presently the prac-tice in England and Wales.
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Beijing Law Review , 2019, 10, 1394-1408
https://www.scirp.org/journal/blr
ISSN Online: 2159-4635
ISSN Print: 2159-4627
10.4236/blr.2019.105075 Dec . 26, 2019 1394 Beijing Law Review
Children Evidence under the Nigerian Law:
The New Approach after the Evidence Act, 2011
Olarinde E. Smaranda1 , Udosen Jacob2
1Afe Babalola University, Ado Ekiti, Nigeria
2Department of Private and Business Law, College of Law, Afe Babalola University, Ado Ekiti, Nigeria
In our adversarial system, parties are
required to tender material evidence to
establish the facts-in-issue upon which their claims, charges or defences are
based. By giving evidence linking to the claim, charge or defence, the witness
performs a duty of assisting the court to discover the tru
Generally, a competent witness may be adult, children or an old person. The
thrust of this paper is to examine child evidence under the Evidence Act,
2011. The author adopted expository, analytical and comparative methods in
conducting this research. The study found that under the Evidence Act, 2011,
a child of fourteen years is permitted to give sworn evidence while children
below fourteen years give unsworn evidence. The paper suggests that Section
209 (3) of the Evidence Act be amended to read "a child's evidence in crimi-
nal proceedings shall be given unsworn, and such unsworn evidence may be
taken as if that evidence had been given on oath", as it is presently the prac-
tice in England and Wales.
Keywords
Court Trials, Children Witness, Admissible Evidence, Unsworn Evidence,
Corroboration
1. Introduction
Witnesses, through ages, have been key prayers in the pursuit of justice. There-
fore, fundamentals of Justice necessitate the fact that the truth of any matter
must be established on the basis of credible evidence tendered by the parties be-
fore the court. This brings the role of a witness as an important constituent of
the administration o f justice by giving evidence to prove or disprove the facts
that give rise to the subject matter of dispute between parties. A witness is one of
Smaranda , O. E., &
, U. (2019).
Children Evidence under
the Nigerian Law:
The New Approach after
the Evidence Act, 2011
.
Beijing Law R
, 10,
1394 -1408 .
https://doi.org/10.4236/blr.2019.105075
November 4, 2019
December 23, 2019
December 26, 2019
9 by author(s) and
Research Publishing Inc.
This work is licensed under the Creative
Commons Attribution International
4.0).
http://creativecommons.org/licenses/by/4.0/
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1395 Beijing Law
the most important sources of information in discovering the truth about the
case, but the pains and troubles he has to undergo to help the Court are as well.
Through witness testimony, the court gets to the bottom of the matter by
knowing the truth before exercising its discretion to give a correct judgement in
accordance with the defense of justice. The sanctity of the statements made by
the witness is considered to be inherent or intact as such statements are made
under oath, and the witness is considered present when the incident occurred.
Hence, the role of a witness has been of paramount importance in assisting the
court to discover the truth in the administration of justice. It is interesting to
note that winning or losing a case is dependent on the witness if the case is free
from any influence. It must be understood that evidence of a witness will only be
admissible if that witness is competent to testify. However, it may happen that
the crucial evidence to be relied upon for just determination of a case is that of a
child (Amusa, 2014) . With the increasing concern about the incidence of sexual
abuse of children (where the child is often the sole witness as well as the victim),
and about domestic violence (where a child is likely to be a principal witness),
the status accorded to children's evidence in our adversary judicial system is
coming under closer scrutiny (Thomson, 1958) . The status of children's evi-
dence is of crucial significance in our justice system. Therefore, to exclude chil-
dren's evidence may mean, in cases where the only witness is a child or children,
that an offender will not be prosecuted, because there is little or no other credi-
ble evidence available against the accused. This means that many criminal acts
can be committed with impunity and that children are victims of repeated
criminal acts. If, however, a child's evidence is inherently unreliable or a Judge
or a Magistrate is unable to assess the reliability of the evidence accurately, then
the admission of such evidence may well prejudice the outcome of the trial. It is
this concept of child evidence under the Evidence Act, 2011 that this article is set
to examine.
2. Clarification of Terms
It is to be noted that the Evidence Act is silent on who a child is (Cap E 14, LFN,
2004). This obvious lacuna may make us resort to the various foreign and local
legislations in order to ascertain the status of a child. In constitutional law, the
age of franchise in Nigeria is eighteen years (Section 77 (2) and 117 (2) CFRN,
1999 (as amended). In contract, the contractual capacity is the age of majority.
Under Common Law, the age of puberty differs. A child is one who has not at-
tained the age of fourteen in the case of a boy, while the age of puberty for a girl
is twelve years (http://www.yourdictionary.com/p uberty ).
The Oxford Advanced
Dictionary
defines a child as a person, boy or girl right from birth to the age of
full physical development (Hornby, 2004) , while
The Black
'
s Law Dictionary
de-
fines a child as a person under the age of majority (Garner, 2001) .
The Labour
Act defines a child as a young person under the age of twelve years and a young
person as one under the age of fourteen years (Garner, 2001) . The National
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1396 Beijing Law Review
Welfare Policy defines a child as anybody who is twelve years of age and below.
The Children and Young People Act define a child as a person who is under
twelve years old; however a young person according to the same Act means a
person who is twelve years or older, but not yet an adult. This Act also estab-
lishes the difference between a child and a young adult, stating that a child is any
person less than twelve years old, while a young person is any person that is
twelve years and above, although not yet an adult.
The Child's Right Act 2003 defines a child as a person who has not attained
the age of eighteen years which is in line with the United Nations Convention on
the Rights of the Child and the African Charter on the Rights and Welfare of the
Child of which Nigeria is a State Party (Cap 50, LFN, 2004). Section 277 of the
United Nation's Convention on the Rights of the Child establishes that a child is
a person below the age of eighteen years.
It is importance to note that the legislation on issues relating to children in
Nigeria is contained in the residuary legislative list and as such, depends on the
states (Iguh, 2011) . Individual states are meant to adopt and adapt to the Child
Rights Act. Most states of the Federation like Abia, Anambra, Bayelsa, Ebonyi,
Ekiti, Jigawa, Edo, Imo, Lagos, Kwara, Ogun, Ondo, Rivers, Taraba, Nasarawa
(Iguh, 2011) have adopted the Child Rights Act and are in the process of adapt-
ing the laws accordingly; some states have changed the definition of a child . In
some states, a child is a young person under the age of thirteen (Iguh, 2011) . In
other states like Akwa Ibom, he/she is a young person under the age of sixteen
years.
The Criminal Procedure Act, for example, regards any person below the age
of fourteen years as a child. In explaining what the age of a child is, the court in
the case of
Okoye v The State
stated
inter alias
, that: a boy or girl of thirteen
years is a child. In similar vein, in the case of
State v Njokwa Obia
,
the court held
that: a witness aged fifteen years is not a child. Another case worth mentioning
on this issue is the Supreme Court landmark case of
Okon v The State
where His
Lordship Nnaemeka-Agu J.S.C. (as he then was) stated that any person below
the age of fourteen years should be regarded as a child. The court went further to
state that:
in the absence of any general provision in either the Law (Miscellaneous
Provision) Act Cap 89 of 1958, and the interpretation Act of 1964 or any
definition of the Evidence Act (Cap 62) itself, I believe in the principles that
I have discussed I should adopt and apply the definition in section 2(1) of
the Criminal Procedure Act. An Act designed to make provision for the
procedure to be allowed in criminal cases under the Act, "child" means
anyone who has not attained the age of fourteen years (Dubai Bank Kenya
Ltd. V Insurance Company of East Africa Ltd 2004
http://kenyalaw.org/caselaw/cases/view/91860/)
Subsequent decisions also endorse the above namely that a person below the
age of fourteen years is a child. On this note, it is the opinions of the writers that
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1397 Beijing Law
the perception of age as a definition of a child in Nigeria varies and is also de-
pendent on the person who is defining and his/her cultural background.
3. Competency and Compellability
It must be understood from the onset that the evidential concepts of competency
and compellability have a universal feature of modern legal systems. Related lit-
erature on the competent of a witness to testify in court, in general, and compa-
rability in particular, is most challenging, thoughtful and insightful and at the
centre of scholarly discussions in the legal system of many countries including
Nigeria. This ranges from writings by scholars and eminent jurist to the case
laws. Despite the fact that much has been written on the subject, the debate on
the appropriateness of assessing the competency of child witnesses is far from
being over. For instance, in England by the 19th century new rules of evidence on
the competence of all persons to testify as witnesses had emerged. Thus, in the
case of
Ex P Femande
His Lordship Wiles J. (as he then was) succinctly stated
the rule thus:
Every person in the United Kingdom except the sovereign may be called
upon and is bound to give evidence to the best of his knowledge upon any
question of fact material and relevant to an issue in any of the Queen's
courts unless he can show some exceptions in his favour.
The above English court's decision finds written expression in Section 175(1)
of the Nigerian Evidence Act, which provides:
All persons shall be competent to testify unless the court considers that they
are prevented from understanding questions put to them or from giving ra-
tional answers to those questions by reason of tender years, extreme old
age, disease whether of body or mind or any other cause of the same kind.
By virtue of the above provision, it is clear that a competent person, therefore,
maybe described as a person who can lawfully be called upon to give evidence.
He is a person who suffers no disability on account of the law or is not exempted
by the provisions of the law from giving evidence (Amusa, 2014) .
A compellable witness is a person who can lawfully be compelled by the court
to testify (Amusa, 2014) . The refusal or neglect on the part of a compellable wi t-
ness to attend court when summoned may amount to contempt, for which he
may be punished. It is noteworthy that a person must be competent before being
compellable; in other words, all compellable persons are competent. A compe-
tent person may, however not be compellable if the person falls within the class
of persons who enjoy privilege or immunity from civil or criminal proceedings.
It flows from the above that a child is reputably presumed incompetent and
uncompellable to act as a witness in court (Amusa, 2014) . But generally, this
presumption can be rebutted if the child is able to overcome the legal hurdles of
passing preliminary tests to be conducted by the court to determine his compe-
tence (Amusa, 2014) . The first test is to investigate whether the child is possessed
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1398 Beijing Law Review
of sufficient intelligence to be able to understand the questions put to him or
answer such questions rationally (Amusa, 2014) . This can be ascertained by put-
ting questions which have no bearing on the matter in court across to the child.
If he scales this hurdle, he is
prima facie
a competent witness. The second test as
earlier stated is for the court to determine if he understands the nature of an
oath against the backdrop of speaking the truth. If he passes the second test, the
child will be placed on oath and his evidence will be on par with that of an adult
(Amusa, 2014) . But where he fails the second test but passed the first test, he is
nevertheless a competent witness who will be allowed to give unsworn testi-
mony. In
Mbele v
.
The State
, Nnaemeka -Agu (JSC) stated the position as fol-
lows:
It is thus clear that a judge faced with the testimony of a child witness has
two vital investigations to make, namely:
1) Is he or she possessed of sufficient intelligence to justify the retention of
his or her evidence, that is, does he or she understand the duty of speaking
the truth?
2) Does he understand the nature of an oath?
It is only after the above questions have been answered that an oath can be
lawfully administered to the child.
The issue of whether the above stated two basic tests should be conducted in
open court before the reception of evidence of a child is contentions. While the
case of
Omosivbe v
.
COP
support the view that the investigation must first be
made in court to justify the child's evidence on record, the cases of
Okoye v
.
The
State
and
Okoyomyo v
.
The State
stated that the trial judge is not bound under
Section 183 (1) of the Evidence Act, 2004 to hold and record a preliminary in-
quiry on the competence of a child to take an oath, if the court is of the opinion
that the child is capable of understanding the nature of an oath.
However it has been argued that competency of a child relies more on the
understanding and intellect of the child rather than the age of the child. In
On-
yebu v The State
, the Supreme Court held
interalia
that: "Competency is not a
matter of age but understanding …" In that case, one of the questions that arose
for determination was whether Prosecution Witness 5 (PW5), a four-
teen-year-old boy who witnessed the gruesome murder of his mother on the
farm for declining sexual advances made to her by the Appellant was a compe-
tent witness. In the circumstances of the case, he was held to be competent. Also,
in
Solola v State
, the Supreme Court held that competency to testify is not a
matter of age but of intellectual capacity. In 1895, the United States Supreme
Court, cited the English common law precedent in
Wheeler v United States
and
established the American Common Law Position that the competency of a child
witness "depends on the capacity and intelligence of the child, his appreciation
of the difference between the truth and falsehood, as well as his duty to tell the
former in making such a determination, Judges assessed whether children un-
derstood the spiritual consequences" of lying on oath. In 1861 in the English de-
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1399 Beijing Law
cision in
R v
.
Holmes
, the Judge was satisfied that a child had the capacity to give
sworn evidence when, after being asked what becomes of a person who tells lies
(under oath), the child responded if he tells lies he will go to the wicked fire of
hell. The common law perception that children were, not sufficiently trustwor-
thy to serve as witnesses, was a reflection of widespread contemporary beliefs
that children could easily be influenced by an adult, especially girls, were inher-
ently unreliable witnesses and prone to fantasy or fabrication, and that crimes
such as sexual abuse of children were a rare occurrence.
4. Evidence of Children: The New Approach after Evidence
Act, 2011
With regard to the competence of a child witness, Section 155 of the Evidence
Act, 2004 which is in
pari materia
with the new Section 175 of the Evidence Act,
2011 which deals with the first test of a child who may be competent to testify in
court has brought about some innovations regarding the admissibility of
unsworn evidence of a child and the requirement of corroboration. Section 183
of the Evidence Act 2004 provided for the admissibility of unsworn evidence of a
child witness in criminal proceedings. Section 209 of the Evidence Act 2011
brought about substantial innovations by not limiting it to criminal proceedings
but also civil proceedings. Section 209 provides thus:
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 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 understands the duty of speaking the truth (Onyekachi, 2016) .
209 (2): A child who has attained the age of fourteen years shall, subject to
Sections 175 and 208 of the Act give sworn evidence in all cases.
Directly comparing Section 183 of the Evidence Act 2004 and Section 209 of
the Evidence Act 2011, it is evident that the former dealt with the unsworn evi-
dence of a child in criminal cases, the latter distinguishes between the compe-
tence of a child below the age of fourteen years and that of a child who has at-
tained the age of fourteen years in both civil and criminal proceedings. This is a
sharp distinction between the two Evidence Acts. While Section 183 was re-
stricted to criminal cases, Section 209 (1) applies to both civil and criminal cases.
Flowing from this, one can say without contradictions that the 2011 Evidence
Act is a marked improvement of the previous law.
The new law has established that a child who has not attained the age of four-
teen years is not competent to give sworn evidence, unlike its 2004 counterpart.
By this section, it is also clear that if a child is below fourteen years of age his
evidence shall be unsworn provided he is possessed of sufficient intelligence to
justify the reception of his evidence and he understands the duty of speaking the
truth unlike former Section 183 of the Evidence Act 2004 which failed to state
the age range of who is a child; as such, a definition was sought in other laws,
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1400 Beijing Law Review
and only applied to criminal proceedings. The 2004 Act only applied strictly in
civil proceedings to the effect that a child witness, either or below the age of
fourteen years, must understand the questions put to him, giving rational an-
swers to those questions, and understands the nature of an oath. The criticism of
this provision under the 2004 Act emanated from the question whether a child
who is statutorily disqualified from giving evidence on oath will be required to
"possess of sufficient intelligenc e to justify the reception of his evidence and un-
derstand the duty of speaking the truth". This phrase is still rearing its ugly head
under the 2011 Act.
Also, Section 209 of the 2011 Act has resolved the conflict between the Child
Right Act 2003 and the Evidence Act 2004. The Child Rights Act provides:
1) In any proceedings, whether civil or criminal, the evidence of a child may
be given unsworn.
2) A deposition of a child's sworn evidence shall be taken for the purpose of
any proceedings, whether civil or criminal as if that evidence has been given on
oath.
It can be submitted that while the foregoing provisions conflicted with Section
183 (1) of the 2004 Act, which restricted the admissibility of unsworn evidence
of a child to criminal proceedings, the conflict has now been resolved by the use
of the words; "in any proceedings" in Section 209 (1) of the 2011 Act, thereby
allowing the unsworn evidence of a child in civil proceeding.
However, Section 209 (2) makes it explicit that a child who has attained the
age of fourteen years shall give sworn evidence in both civil and criminal pro-
ceedings. This provision is made subject to the provisions of Section 175 and 208
of the same Act. This means:
1) Even for a child, who has attained the age of fourteen years to give sworn
evidence, he must understand the questions put to him or give rational answers
to those questions and also understand the nature of an oath.
2) The court may discard with the requirement of administering evidence on
oath if it is of the opinion that taking of any oath whatsoever according to the re-
ligious belief of the child witness is unlawful or because of lack of religious belief,
the court is of the opinion that the child witness ought not to give evidence upon
oath.
There was no similar provision under the 2004 Act. It is an exceptional trend
brought by the 2011 Act.
Notably, in spite of these improvements, these changes do not go far enough
to improve children competency, as Section 209 (3) of the 2011 Act requires that
the unsworn evidence of a child below the age of 13years must be corroborated
by some other material evidence in support of such testimony:
209 (3): A person shall not be liable to be convicted for an offence unless
the testimony admitted by virtue of subsection (1) of this section and given
on behalf of the prosecution is corroborated by some other material evi-
dence in support of such testimony implicating the defendant.
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1401 Beijing Law
The legal consequences of these provisions are that under Section 209 of the
2011 Act, nothing establishes the provision that even in criminal cases, the
unsworn evidence of a child who has attained the age of fourteen years requires
corroborative evidence implicating the accused person. On the contrary, the
2004 counterpart established that the unsworn evidence of a child of whatsoever
age required corroborative evidence in criminal proceedings, implicating the
accused person. This trend in the 2011 Act seems like the incorporation of the
views of some Nigerian scholars. For example, Professor Amupitan was of the
opinion that:
In order to remove the controversy created by the need for preliminary in-
quiry or not, a person of fourteen years and above should be treated like an
adult who could give sworn evidence in the court while a person below the
age of fourteen years should be considered as a child whose evidence re-
quires special treatment, alt hough the new Evidence Act was patterned
along the suggestion of Professor Amupitan, the legislature limited the ex-
ception (special treatment) to only criminal cases, thereby compounding
the criteria for determining the competence of a child witness in civil cases.
Also worthy of note in this regard is that there is nothing under the provision
of Section 209 (3) to show that the unsworn evidence of a child below the age of
fourteen years in civil cases requires corroboration (Roger, 1997) . Therefore, the
provision of Section 209 (1) of the 2011 Act with regard to a child giving
unsworn evidence only applies to criminal cases.
Although it is best that an objection to the competence of a witness be taken at
the beginning of the trial so that it can be argued by both parties and determined
by the Judge. Previously, it was the law that such objection should be taken while
the witness was being examined in chief (
Wallaston v Hakewill
(1841) 3 Scott
N.R. 593); the new trend in practice is to consider it during the final address or
even on appeal, as was done in Sambo, Peter and a whole number of other cases
decided by superior courts of record of children in Nigeria.
5. The Preliminary Inquiry of Child Evidence b efore 2011,
Act
At common law, there are two conditions that determine the competence of a
child as a witness. First, he must not be prevented from understanding the ques-
tions put to him or from giving rational answers to those questions by reason of
tender age. The court does this by putting preliminary questions to the child
which may have nothing to do with the matter before the court (
Mbele v The
State
(1990) 4. N.W.L.R. (Pt. 145)). If as a result of this investigation the court
comes to the conclusion that the child is unable to understand questions or to
answer them rationally, then the child cannot be a witness at all in the case. But
if the child passes this test, he is subjected to the second test for the determina-
tion of a further question whether he is the opinion of the court is able to under-
stand the nature of an oath. This question is also determined by the court pu t-
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1402 Beijing Law Review
ting questions to the child, such as: "Do you go to Sunday School?" "Is the Bible
a special book?", "Do you understand the importance of God and what will
happen to one who tells lies after being sworn on the Holy Bible?" If he fails in
this respect he will nevertheless be able to give his evidence but will not take the
oath, provided he has passed the first test (
Mbele v The State
(1990) 4. N.W.L.R.
(Pt. 145)). It follows from the principle that, as a general rule, oral evidence shall
be on oath or affirmation.
It is important to point out that the test of competence is not mandatory be-
cause a trial Judge or Magistrate is not under an obligation to determine the
competence of a child unless it is challenged by the other party (Admin, 2017) .
This was the reasoning of the Supreme Court per Agbaje JSC (as he then was) in
the case of
Okon v
.
The State
((1988) ANLR 173 at 186). where he said:
Since all persons are competent to testify, until the competence of a witness
to testify is challenged for any of the reasons stated in the section there is in
my view no obligation on the court to determine the competence of a wit-
ness to testify (Admin, 2017) .
It is important that a trial Judge must record the fact that an inquiry was con-
ducted to determine the competence of the child to give rational answers to
questions, the sufficiency of intelligence of the child, and whether or not the
child understands the duty of speaking the truth. However, a trial judge is not
bound to record the specific or actual questions and answers put to the child,
and he is only required to state his conclusions. Therefore, failure to record the
specific questions and answers put to the child witness will not be fatal to a rea-
sonable opinion and conclusion. In
Mbele v The State
((1990) NWLR pt. 145
p484 at 498) appellant contended that the trial judge ought to have recorded the
specific questions and answers during the inquiry. Agbaje JSC said:
Once there are clear indications in the record of proceedings that trial Judge
carried out the preliminary investigation envisaged by sections 154 and 182
of the Evidence Act before taking the evidence of a child or an infant, that
in my view, would mean, at least
prima facie
,
that the said inquiry was car-
ried out even though the actual questions and answers in the course of the
investigation are not recorded. It will then be up to counsel for the appel-
lant to rebut this
prima facie
opinion by showing either there was no inves-
tigation at all or that what the trial judge called an investigation.
In the case of
Mbele v The State
((1990) (Part 145) 4 NWLR 484-488). The
Supreme Court stated the two investigations to be conducted by a court faced
with the testimony of a child witness, namely:
1) Whether the child is possessed of sufficient intelligence to be able to un-
derstand questions put to him rationally to justify the reception of his evi-
dence; that is, does he understand the duty of speaking the truth? The court
does this by putting preliminary questions to the child which may have
nothing to do with the matter before the court. If the answer to the first in-
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1403 Beijing Law
vestigation is in the negative, then the child cannot be a witness at all in the
case. If the answer is in the affirmative then,
2) Whether the child understands the nature of an oath. This second inve s-
tigation is also determined by the putting of questions to the child as to the
nature of an oath such as asking him 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 evidence, but will not be sworn.
The Supreme Court's decision in the above case was in line with the former
Section 183(1) now Section 209(1) of the Evidence Act. This section provides:
In any proceedings in which a child who has not attained the age of four-
teen years is tendered as a witness, such a child shall not be sworn and shall
give evidence otherwise than on oath affirmation, if in the opinion of the
court, he is possessed of sufficient intelligence to justify the reception of the
evidence, and understands the duty of speaking the truth (Scharticle.com,
2018).
Commentators on Phipson appear to be skeptical about the efficacy of such
investigation as they argue that:
"The conduct of an inquiry by the Judge as to whether a child should be
sworn or not may well present problems today" (Phipson, 1983)
Cross and Willins are opposed to the belief in divine sanctions as the basis of a
child's competency to testify on oath. Rather, they suggest that what a Judge
should consider, is whether the child appreciates the solemnity of the occasion.
They exhorted thus:
It used to be said that the Judge had to be satisfied that the proposed wit-
ness appreciated the nature and consequences of an oath, and the context
made it plain that the court had the divine sanction in mind. The Court of
Appeal had recently adopted a more secular approach. The important thing
is for the Judge to be satisfied that the child appreciates the solemnity of the
occasion and is sufficiently responsible to understand that the taking of an
oath involves an obligation, to tell the truth over and over the ordinary duty
of doing so. It is unnecessary for the child to believe in anything in the na-
ture of a divine sanction for the majority of the adult population probably
does not believe in it (Cross and Wilins, 1981) .
On our part, we are in total agreement with the view expressed by Cross and
Willins, which agreed with the biblical injunction which states:
Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths
(Matthew 5:37 KJV biblehub.com). But I say unto you, swear not at all; neither
by heaven, for it is God's throne Nor by the earth; for it is His footstool: neither
by Jerusalem, for it is the city of the great King (Matthew 5:33 KJV bible-
hub.com). Neither shalt thou swears by thy head, because thou canst not make
one hair white or black. But let your communication be, Yea, yea; nay, nay: for
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1404 Beijing Law Review
whatsoever is more than this cometh of e vil (Matthew 5:37 KJV: bibble-
hub.com).
6. Reform to the Child Witness in England and Wales
In 1988, England and Wales enacted a new set of laws regarding child witnesses
in criminal trials (U. K. Criminal Justice Act, 1988 amendments). The 1988 re-
forms eliminated the need for corroboration in order to secure a conviction on
the unsworn testimony of a child. The reforms also changed the competency
inquiry, eliminating the requirement that a child demonstrates an understanding
of the "oath," the "truth" or a "promise" to tell the truth. Section 33A of the
Criminal Justice Act 1988 provides:
1) A child's evidence in criminal proceedings shall be given unsworn
2) A deposition of a child's unsworn evidence may be taken for the purpose of
criminal proceedings as if that evidence had been given on oath.
2a) A child's evidence shall be received unless it appears to the court that the
child is incapable of giving intelligible testimony (http://www.legislation.gov.uk ).
3) In this law, a "child" means a person less than fourteen years of age.
Thus, in
D
.
P
.
P
.
v M
. (1997) 2 All E.R. 755) the respondent was convicted of
indecently assaulting a four-year-old girl based on the child's unsworn testi-
mony. The respondent appealed, arg uing that by reason of her age the child was
too young to testify. The English Divisional Court held that it was not open to
the Judge to exclude the evidence of the child based on her age alone (per Lord
Justice Phillips) The court further stated:
The words of (the new provision) are mandatory. Care must always be
taken where a question is raised as to whether a young child is capable of
giving intelligible testimony. But where the child is so capable the court
does not enjoy some wider discretion to refuse to permit the child's evi-
dence to be given. A child will be capable of giving intelligible testimony if
he or she is able to understand questions and to answer them in a manner
which is coherent and comprehensible.
In
D
.
P
.
P
.
v
.
G
(1998) Q.B. 919) the trial court allowed two young children
aged six and eight respectively to give evidence -in-chief and refused to hear tes-
timony from a proposed defence expert that the children were incompetent to
testify. The Divisional Court held that the trial court was right to refuse to hear
the expert evidence, as the competency inquir y is a simple test well within the
capacity of a Judge or Magistrate. The statutory requirement for "intelligible tes-
timony" from the child was held by Lord Justice Phillips to be evidence that is
capable of being understood.
In 1999, England and Wales further reformed the law governing child witness
competency inquiries in criminal proceedings. The Youth Justice and Criminal
Evidence Act 1999 (Stephen, 2015) now provides that children under 14 will tes-
tify unsworn (Section 55 (2) (9) and that unsworn evidence should not be given
any less weight than sworn testimony: "A deposition of unsworn evidence …
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1405 Beijing Law
maybe taken for the purposes of criminal proceedings as if that evidence had
been given on oath" (Section 56 (3)). Section 53 of the same Act states that the
sole test for determining the competence of a child to testify is whether the child
is "able to understand questions put to him as a witness, and give answers to
them which can be understood" Section 53 (3)) (Youth Justice and Criminal
Evidence Act 1999 (U.K.) 1999, c 23, s 53(3))
Also, in the case of
R v
.
MacPherson
, (1997 2 All E.R. 749 at 753) the English
Court of Appeal held that once the issue of competence is raised, there is an
onus on the party calling the witness, usually the prosecution, to establish that
the child is competent to answer questions. However, the trial judge was permit-
ted to satisfy himself that a girl, aged about five years at the time of trial, was
competent to testify by viewing the video-record of an investigative interview
and engaging the child in a "general conversation… in the form of questions and
answers of a most general nature" (Other jurisdictions have legislati on very
similar to that of England regarding child witness competency assessment).
There is no requirement for the Judge to ask the child questions about the dif-
ference between truth and falsehood.
7. Agenda for Reform in Nigeria
The developed jurisprudence that a child's unsworn evidence may be taken for
the purpose of criminal proceedings as if that evidence had been given on oath
does not find a place in the Nigerian statutes since a child's competency to testify
in our courts today still depends on competency rules inherited from the com-
mon law, namely, whether the child has sufficient intelligence to be able to un-
derstand questions put to him and whether in the opinion of the court he is able
to understand the nature of an oath. Moreover, Section 209 (3) of the Evidence
Act still ties down unsworn evidence of a child to corroboration by some other
material evidence in support of such testimony before the Accused could be
convicted. There is, therefore, an urgent need for the National Assembly to step
in and amend Sections 175, 205, 208 and 209 of Evidence Act, 2011 (as
amended) in the light of recent law reforms that have taken place in England and
Wales as stated above.
In the alternative, we maintain that a separate law relating to children's com-
petency rules be enacted. This is to be known as "The Youth Justice and Crimi-
nal Evidence Act" similar to the 1999 England and Wales Youth Justice and
Criminal Evidence Act, with some clear provisions that:
1) Child evidence in criminal proceedings shall be given unsworn.
2) A deposition of a child's unsworn evidence may be taken for the purpose of
criminal proceedings as if that evidence had been given on oath (Criminal Jus-
tice Act 1988, legislation.gov.uk).
3) Evidence of a child less than 14 years of age if received by the Court, shall
have effect as if it were taken under Oath.
3) A person under fourteen years of age is presumed to have the capacity to
testify.
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1406 Beijing Law Review
4) The evidence of proposed witness under fourteen years of age shall be re-
ceived if he is able to understand and respond to questions without corrobora-
tion.
It is the humble belief of the writers that if our Evidence Act is amended or a
separate law relating to child competency rules is enacted in line with the recent
law reforms that have taken place in England and Wales put forward in this pa-
per, this will have the advantage of increasing the number of young children eli-
gible to testify in criminal trials in our courts particularly where children are vic-
tims or the only eyewitness to the crime.
8. Conclusion
In this paper, we have ma de efforts to show while every person is a competent
witness, not every person is a compellable witness. This paper further finds that
once a person is a compellable witness
afortiori
, such a person is presumed a
competent witness, because one cannot be compellable if one is first and fore-
most not competent though one can be competent without being compellable.
For instance, children occupy a special position; the law of evidence has specified
cases where children are competent, but not compellable or where they are both
competent and compellable. This paper also reveals that the competency of a
child to give evidence is determined by a test of intellect. This is so because, in a
Criminal trial a child will be competent to testify provided he or she can under-
stand the question he is asked and can give understandable answers to them. But
in civil trials, a child will be component if he or she satisfies the test for taking an
oath or the test as contained under the children's and Young Persons' Act (Sec-
tion 96 of the CYPA, Cap. C 24 LFN, 2004) for giving unsworn evidence and
Section 209 (3) of the Evidence Act, 2011. The article further establishes the fact
that the new Evidence Act, 2011 has brought about some positive changes such
as abolition of oaths test before a child can testify in court and permit a child
who is fourteen years old to give sworn evidence. These improvements are
commendable but they have further created the problem of competence and
compellability of children's testimony by providing that all other children below
fourteen years of age can only give unsworn evidence which unsworn evidence
cannot be acted upon by the court unless it is corroborated, and no person can
be convicted upon uncorroborated and unsworn evidence of a child.
The study finally finds that the contr oversial question on the definition of who
is a child or a person of tender years in Nigeria has not been resolved under the
new Evidence Act. The authors' view in this paper is that until the National As-
sembly or the Law Reform Commission amends our Evidence Act to provide for
the definition of who is a child, our courts will continue to give different inter-
pretations as to who a child is for the purpose of children witness or testimony
in our courts particularly on criminal trials.
Conflicts of Interest
The authors declare no conflicts of interest regarding the publication of this paper.
O. E. Smaranda, U. Jacob
10.4236/blr.2019.105075 1407 Beijing Law
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Appendix
Statutes
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Section 77(2) and 117(2) of the 1999 Constitution of Nigeria (as amended).
Evidence Act, 2011, Cap. 112 Laws of the Federation of Nigeria, 2004.
Administration of Criminal Justice Act, 2015
Criminal Procedure Act of Nigeria
Children and Young Persons Act, Cap C 24. LFN 2004.
Child's Right Act, Cap C50 LFN, 2004
Convention on the Rights of a Child, 1989
U. K. Criminal Justice Act, 1988 amendments.
The U.K, Criminal Justice Act of 1988.
Criminal Justice Act, 1991 (U.K)(Amendment)
Criminal Justice Act 1988 by the Criminal Justice and Public Order Act 1994
(U.K) 1994.
Youth Justice and Criminal Evidence Act 1999 (U.K.) 1999, c 23.
Youth Justice and Criminal Evidence Act 1999 (U.K.) 1999.
Cases
1) Barlett v Smith (1842) 12 LJ Ex 287.
2) D.P.P. v M., (1997) 2 All E. R. 755
3) D.P.P. v. G, (1998) Q.B. 919
4) Egbe v. Adefarasin (1985) 1 NWLR pt. 3, 519
5) Ex P Fernandez (1861) 10 CBNS 3
6) Hoskyn v Commissioner of Police for Metropolis (1979) A.C. 474
7) Mbele v The State (1990) 4. N.W.L.R. (Pt. 145) p. 484
8) Ogunsi v The State (1994) 1N.W.L.R. (Pt. 322)10
9) Okoye v The State (1972) 1 All NLR p.500
10) Okon v The State (1998) 1 N.S.C.C. p. 157
11) Onagoruwa v. IGP (1991) 5 NWLR pt 193, 593
12) Okon v The State (1988) 1 N.W.L.R. (Pt. 69) p. 172
13) Onyegbu v The State (1995) 4 N.W.L.R. (Pt. 391) 510
14) Okoyomyo v. The State (1973) NMLR 292
15) R v. Holmes (1861) 175 ER 1286
16) R v Yaccob (1981) Crim L 508
17) R v. MacPherson (1997) 2 All E.R 749 at 753
18) State v Njokwa Obia Vol. 4 ECS LR p.67
19) Solola v State (2005) ALL FWLR (Pt. 269) 1751 S.C
20) Sambo v The State (1993) NWLR (pt. 300) 399
21) Wheeler v United States, 159 US. 523, 525 (1895)
22) Wollaston v Hakewill (1841) 3 Scott N.R. 593
ResearchGate has not been able to resolve any citations for this publication.
-
![Nwamaka Iguh]()
There is a saying that cuts across the nation that " children are the future. " They are the future of any family, country etc. To this extent, it is the duty of every government and society to ensure that children are given every care, help, protection, training and education, they may need, in order to grow into useful citizens and members of society. All legal instruments made for protecting the rights of children come under one banner, " the best interest of the child ". When children break the law, it is pertinent to remember that the essence of justice administration is to mould and not to break; to correct and not to punish. The goal is to ensure that such child is healed enough to be successfully reintegrated into society as useful individuals, to themselves, and to society at large. The question is: How can a child be corrected, if the Biblical " rod of correction " is withheld from him? Is it in the best interest of the child to ban corporal punishment? The writers in this work examine the legal concept of a child and the provision of the law, geared towards protection of the child. And make an assessment/examination as to whether those provisions are adequate or not. The writers also assess the provision of the Child Rights Act which prohibits corporal punishment.
In contemporary youth justice in England and Wales, there is too much emphasis on offence- and offender- focused approaches and an insufficient focus on promoting positive outcomes for children in conflict with the law. What is more, since the Crime and Disorder Act 1998, the voices of children embroiled in the Youth Justice System have been marginalised and their participatory rights rendered invalid. Both children and Youth Offending Team workers are finding involvement in the Youth Justice System (e.g. assessment, planning, intervention, supervision and review) to be a disempowering and disengaging experience. In this paper, we outline a number of contemporary tensions and conflicts in relation to youth justice law, policy and practice: the highly political context of youth justice, the criminalising risk, prevention and early intervention agendas and the unique and specialised nature of youth justice services. We also introduce a focus for future developments and 'creative possibilities' for youth justice. Specifically, we advocate for Children First, Offenders Second (CFOS), a progressive and principled model of youth justice that advocates for child sensitive, child appropriate services, diversion and the promotion of positive behaviours and outcomes for children, underpinned by evidence-based partnership working and the engagement of children (and parents) at all stages of the youth justice process.
Corroboration of Evidence of Children: The New Tests
- Admin
Admin (2017). Corroboration of Evidence of Children: The New Tests. https://www.google.com/search?rlz=1C1CHBD_enNG829NG829&q=Admin( 2017).Corroboration+of+Evidence+of+Children:+The+New+Tests.&tbm=isc h&source=univ&sa=X&ved=2ahUKEwigg-Wm-7fmAhVNrxoKHTRZCPIQ7
An Introduction to Evidence
- Wilins Cross
Cross and Wilins (1981). An Introduction to Evidence (5th Edition). London: Butterworths.
- B Garner
Garner, B. (2001). Black's Law Dictionary (8th Edition, p. 254). St. Paul, MN: West Group.
Oxford Advanced Dictionary (6th Edition
- A Hornby
Hornby, A. (2004). Oxford Advanced Dictionary (6th Edition, p. 1072). Oxford: Oxford University Press.
Oaths and Affirmations Legal
- D Onyekachi
Onyekachi, D. (2016). Oaths and Affirmations Legal.
The Principle of the Law of Evidence
- Phipson
Phipson (1983). The Principle of the Law of Evidence (13th Edition). Scotland: Sweet & Maxwell.
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Source: https://www.researchgate.net/publication/338175343_Children_Evidence_under_the_Nigerian_Law_The_New_Approach_after_the_Evidence_Act_2011
