An Analysis of the Number of Witnesses Under Conventional and Sharia Laws.

Indisputably, a witness plays a crucial role in the administration of justice in Nigeria. A witness(es) is most times the conduit through which evidence is given to prove or disprove a fact in dispute between the parties to a case.

Thus, It is pertinent to note that in criminal cases, the prosecution must prove a case beyond reasonable doubt. Whereas in civil cases the burden of proof is founded on the balance of probabilities. See sections 137 and 138 Evidence Act 2011.

It is the law that a witness must be competent and compellable before his evidence may be admissible.

However, the number of witnesses required under the  Evidence Act and Sharia law differs. Under the Evidence Act, no specific number of witnesses is required in establishing a case.

The Nigerian legal system always emphasized the weight, quality and probative value of evidence rather than quantity or plurality (Number).

Therefore,  it is completely at the discretion of the court to convict the Accused/Defendant based on the single testimony of a witness. In many cases, the court may even acquit the Accused/Defendant when it is not satisfied by the testimony of several witnesses.

In other words, one witness may be sufficient to prove a case.  Section 179 of the Evidence Act states: except as provided in this section, no particular number of witnesses shall, in any case, be required for the proof of any fact’’(exceptions in sub-sections (2)Evidence Act).

This significantly implies that a case can be won with a single witness. This was the holding of the court in the case of Anthony Itu v. the State (2013) LCN/649 2 (CA)

That is not the number that the prosecution called that matters… Rather it is the quality of the evidence that is given by the witness or witnesses that matters. One witness alone may be enough to prove a case or even a Murder case.

Moreover, In Samuel Addoo v. The State CA/AK/146 223, the court held that… the defence cannot dictate to the prosecution the number of persons to be fielded as witness or witnesses (emphasis mine).

The same view was held In Ijiefor v. the State (2001) 6 NCCQR 209, and Mahmud Buba v. the State (1994) NWLR 195 at 203.

However, under Islamic Law, the number of witnesses is a legal requirement and same is categorically attached to the nature of the case before the court.

Thus, Qur’an says in Chapter 2 v.252 ‘ get two witnesses out of your men, and if there are not two men (available) then one man and two women such as you agree for witness so that if one of two women) errs the other can remind her, and the witness shall not refuse when they are called  for evidence…’’

The above Qur’anic verse stipulates that the minimum number of witnesses in civil cases of pecuniary interest, financial transactions or any matter related to money is two men or one man and two women.

All the Maliki School jurist hold same view, and Sheikh Yahuza in his book Fathul Jawaad Fi Sharhil Irshaad page 400 had this to say, where the case is civil and related to money one man and two female witnesses are competent ‘’.

A similar view is held by Abul Hasan Al’andalusi as he holds as one witness and two witnesses are competent in monetary causes or what turns to out to be monetary in nature’’_ see Tuhfatul Hukkam page 6  stanza no 140.

Two female witnesses is required only in the case that women have exclusive monopoly of knowledge to a particular fact, like  child-birth, born alive or dead,  menstrual circle, impotency, breast suckling etc (one female witness not competent).

Be that as it may, the position in English Law remains both in civil and criminal cases.

See the case of Abdul razaq Musa v. Mamuda Abdullahi Mafia Anor where the court held that in a civil suit, a plaintiff can establish his claim on the evidence of a single witness. (the position does not change even in criminal case)_ see Anthony Itu v. the State supra.

Contrary to this, under Islamic Law, the position is different except where the witness is an expert i.e Expert Opinion. see Tuhfatul Hukkam page 6  stanza no. 142 However, most of the Jurists of the Maliki School disagree with him. See Bahjat fi  Sharhil Tuhfa vol. 1 page 23

Under Islamic Law, in the case of adultery or fornication, four credible witnesses are only competent and compellable. Qur’an says…and those who accused chaste woman, and produce not four witnesses, flog them with eighty stripes. And reject their testimony forever..’’ see Chapter 34. v. 4.

Sadiq Uthman bn Husain’s opinion is in tandem with the above-cited verse in relation to criminal cases of adultery or fornication. In adultery or fornication, four credible witnesses only suffice’’ page 205 of  Misbahul Saleek  Sharhu ashalul masaleek by Sheikh uthman bn Husain Almaliki

In a nutshell, as a general principle under Islamic Law, two witnesses are always allowed, with one exception that goes to the extent that one man alone, one man plus two females, two females alone, or four male witnesses are allowed respectively.

About the Author 

Yakubu Shehu Dalib Esq

Email: [email protected]

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