A child who is prevented from understanding the questions put to him or from giving rational answers to those questions by reason of tender years is not a competent witness.
Noteworthy however, is the fact that no age is specifically stated or contemplated in the Evidence Act, thus it is the duty of the court before which a child appears for the purpose of giving evidence to determine first of all whether the child is sufficiently intelligent to be able to understand questions put to him or to be able to answer questions put to him rationally. The court does this by putting preliminary questions to the child which may have nothing to do with the matter before it.
This work examines first who a child is under law and the role of the court in admitting the evidence of a child.
A CHILD UNDER NIGERIAN LAW
The concept of a child under Nigerian law is based exclusively on calendar and young age. By the provisions of the Children and Young Persons Act, a clear distinction is made between a child and a young person. A child can be said to be any person who has not attained the age of 14 years. The implication of this position is that he is incapable of understanding anything as he is immature in both mind and will.
The Children and Young Persons Act has however provided a generally accepted legal definition of a child and it is captured in the provisions of section 2(1) where it is stated that – “any body or girl under 14 years of age is considered a child “. This provision is judicially strengthened by the authority of STATE v. NJOKU OBIA 4 ESCLR 67, where ARAKA J. (as he then was) held that a person of 15 years of age is no longer of tender years or a child who cannot understand the nature of an oath or the duty of speaking the truth.
A child has been furthered defined in the provisions of section 2 of the Criminal Procedure Act where it is stated that – “a child means any person who has not attained the age of fourteen years”.
THE ROLE OF THE COURT IN ADMITTING THE EVIDENCE OF A CHILD
The court is, by virtue of the combined provisions of section 175, 205 and 209 of the Evidence Act, expected to investigate whether the child who intends to give or tender evidence before it is possessed of sufficient intelligence to be able to understand the questions put to him and as well answer such questions rationally. This is to say that such child must have an understanding of the duty of speaking the truth and the nature of oath taking.
Worthy of note is the fact that whether a child will testify at all, under oath or give unsworn testimony will depend on the result of the above tests. Judicial guidance on this position exists in the decision of the Court of Appeal and the Supreme Court on the obligation of a trial judge when faced with a child witness.
According to Muktar JCA in NASIRU OGUNSI v. STATE (1994) 12 NWLR (pt.66);
“Before a child of tender years evidence is taken, the judge must ask certain questions like her age or whether she understands the questions put to her. If the Judge is satisfied that she understands the questions put to her then he can proceed to enquire from her whether she understands the essence or implication of oath taking. If she understands, she will be sworn and her evidence will be taken on oath. And if the Judge is satisfied with the child’s answer, that she quite understands the reason why she’s in court and is intelligent enough to answer the questions put to her brilliantly and rationally, then she becomes a competent witness and her evidence is admissible and can be recorded”.
It should be noted importantly that when the child gives evidence on oath, such evidence is treated as that of an adult and except the fact in issue is one that expressly requires corroboration. It is clear, from the above position that a Judge faced with the testimony of a child witness has two vital investigations or preliminary tests to make. The Supreme Court in MBELE v. THE STATE (1990) 4 NWLR (pt. 145), 484-488 restated these two tests thus;
1. Whether the child is possessed of sufficient intelligence to be able to understand questions put to him rationally to justify the reception of his evidence; 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- estigation 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 investigation 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 fourteen 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 “.
It is important to point out here however that the test of competence is not mandatory because 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.
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 witness to testify”.
Conclusively, a court would be wrong to exclude the evidence of a child merely because the child does not understand the nature of an oath. Before the court can properly do so, it must be satisfied that the child as a result of tender age is unable to understand the questions or answer them rationally.
ABOUT THE AUTHOR
ASANAM, GEORGE OBONG IS A LAW STUDENT OF UNIVERSITY OF CALABAR, HE IS INTERESTED IN ENVIRONMENTAL LAW, ENERGY LAW, CORPORATE LAW AMONGST OTHER TRENDING AND EMERGING AREAS OF LAW AND HAS A PENCHANT AND HUNGER FOR SERVICE TO HUMANITY.
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