CORROBORATION OF EVIDENCE OF CHILDREN: THE NEW TESTS

 Categories of Evidence of Children

  1. Section 180 of the Evidence Act 2011 requires that all oral evidence in any proceedings must be given on oath but the exemption in section 209 of the Evidence Act permits trial courts to accept the unsworn evidence of children. Section 209 of the Evidence Act has changed the law on the reception of the evidence of children and now makes a clear distinction between the evidence of children under 14 years of age and children who are 14 years old and above.
  2. The first category is children who are 14 years old and above and such children must give evidence on oath. Section 209(2) of the Evidence Act states that, “A child who has attained the age of 14 years shall, subject to sections 175 and 208 of this Act give sworn evidence in all cases.” The sworn evidence of a child witness is placed on the same pedestal with the sworn evidence of an adult witness and the Evidence Act does not require corroboration of the sworn evidence of children. [1] This means that except in cases where corroboration is required by statue or practice the sworn evidence of a child is sufficient to prove an offence against a defendant.
  3. The second category is children who are under 14 years old and such children cannot give evidence on oath. Section 209(1) of the Evidence Act states that where, “In any proceeding in which a child who has not attained the age of 14 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, such child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.”

Evidence of Children before 2011: The Two Tests

  1. The previous judicial authorities held that, under the provisions of the repealed Evidence Act, there were two tests; (i) the test of competence; and (ii) the oaths test. In Okon v The State,[2] Nnaemeka-Agu JSC said,

“It is my view that once a witness is a child, by the combined effect of sections 154 and 182(1) and 182(2) of the Evidence Act, the first duty of the court is to determine first of all whether the child is sufficiently intelligent to understand the question he may be asked in the course of his testimony and to be able to answer rationally. This is tested by the court putting to him preliminary questions which may have nothing to do with the matter before the court. If as a result of these preliminary questions, the court comes to the conclusion that the child is unable to  understand the questions or to answer them intelligently then that child is not a competent witness within the meaning of section 154(1). But  if the child passes this preliminary test then the court must proceed to the next test as to whether in the opinion of the court, the child is able to understand the nature and implications of an oath. If after passing the first test he fails this second test, then being a competent witness he will give evidence that is admissible under section 182(2) though not on oath. If on the other hand he passes the second test so that, in the  opinion the court, he understands the nature of an oath, he will of give           evidence on oath.”

Evidence of Children after 2011: The Three Tests

  1. The Evidence Act 2011 has now abolished the oaths test. There is no longer a duty on courts to determine whether or not any child understands the nature of an oath since a child of 14 years old is deemed to understand the nature of an oath and permitted to give sworn evidence while all other children under 14 years of age can only give unsworn evidence. See section 209(2) of the Act. However, there are now three tests involved in the reception of evidence of children; (i) the test of competence which may be administered to any child if required; (ii) the test of intelligence; and (ii) the test of truth; both of which must always be administered to children under 14 years of age.
  2. The test of competence is the primary test and applies to all witnesses including children, irrespective of age. There is a presumption of competence of witnesses and therefore, all persons, including children, shall be competent to testify, unless they cannot understand the questions put to them or give rational answers to those questions. See section 175 of the Evidence Act. The second and third tests are that, the court must be satisfied that the child is possessed of sufficient intelligence to justify the reception of the evidence and the child understands the duty of speaking the truth. Section 209(1) of the Evidence Act permits courts to receive the unsworn evidence of children, “if in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.”

The Preliminary Inquiry

  1. The preliminary inquiry is now standard procedure in Nigeria for administering the tests to determine whether or not a child can give evidence on oath but there is no specific procedure for the preliminary inquiry required to be conducted by the trial Judge. The preliminary inquiry is conducted by the trial judge putting questions to the child and not by taking evidence from any witness. It is important to point out that the test of competence is not mandatory because a trial Judge is not under an obligation to determine the competence of a child unless it is challenged by the other party. In Okon v The State,[3] Agbaje JSC said,

“Since all persons are competent to testify, until the competence of a   witness to testify is challenged for any of the reasons states in the section there is in my view no obligation on the court to determine the competence of a witness to testify.”

  1. It is important that a trial Judge must make a record of the fact that an inquiry was conducted 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 reasonable opinion and conclusion. In Mbele v The State,[4] 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 carried out even thought the actual questions and answers in the course of the investigation are not recorded. It will then be up to counsel for the appellant to rebut this prima facie opinion by showing either that there was no investigation at all or that what the trial judge called an investigation.”

Some Decided Cases

  1. A few cases will demonstrate the practical application of the tests and the procedure for the inquiry. In Dagayya v The State,[5] the record showed thus; “Prosecutor: My first witness PW1 is an under aged girl of 14 years old. We are not sure whether she can give evidence on oath or not. Court: That being the case some questions will be put to the witness to find out if she can give evidence on oath or not.” The record showed further; “Court: What is your name? PW1: My name is Gambo Muhammed. I know God and I live at Ubba village. But I do not know what God will do to me if I tell lies. I do not know what an oath is. Court: That being the answer the witness gave in response to the questions asked by the court, I am satisfied that she cannot give evidence on oath since she does not appreciate the usefulness of taking an oath. She is therefore to give unsworn evidence.” The Supreme Court held that the trial Judge complied with the statutory procedural requirements as explained in the case of Okon v The State (supra) and followed in Mbele v The State (supra).
  2. However, it is instructive that if this case were decided today applying the current provisions of section 209(1) of the Evidence Act 2011, the trial Judge would be obliged to direct the witness to be sworn and give evidence on oath since she was 14 years old. Furthermore, the trial Judge did not conduct the test of truth because it appears from the record that the witness did not appreciate the consequences of telling lies and did not understand the duty of speaking the truth.
  3. Now compare the inquiry and record of the trial Judge in Sambo v The State.[6] In that case, before taking the evidence of the complainant, the trial Judge examined the witness and made the following note in the record, “Muslim, a child of eleven years old who knows the nature of an oath but does not know the consequences of telling a lie, affirmed to speak the truth.” The Supreme Court acquitted the appellant and held that the examination and record did not satisfy the requirements of the Evidence Act. The record of the court only stated the conclusion but did not show that any inquiry was conducted to determine the competence of the child to give evidence. Wali JSC said,

“It will be desirable, if not necessary for the Judge after examining a child to write whether he is satisfied that the child:- (1) knows the nature of an oath; (2) the duty of telling the truth; (3) is possessed of intelligence to give rational answers to questions put to him, before taking his evidence under either section 182(1) or 182(2) of the Evidence Act.”

  1. Here we see judicial confirmation of the requirement of the test of truth, the test of intelligence and the now abolished oath test. The witness in this case clearly failed the test of truth as she did not know the consequences of telling a lie. It is therefore surprising that the trial judge in this case, permitted the witness to give unsworn evidence even when she did not understand the duty of speaking the truth.
  2. Another case is Mbele v The State, (supra) where the appellant was charged with the murder of his wife. The record of the court stated thus; “Nwankwo Mbele was examined by me in accordance with section 182 and 154 of the Evidence Act. She is aged about 10 years. She gave rational answers to my questions and appears quite intelligent although she says she does not attend school. She understands the duty of speaking the truth and is possessed of sufficient intelligence as to justify reception of her evidence.” On appeal the Supreme Court held that the trial Judge complied with the procedural requirements for the preliminary inquiry despite the fact that he failed to record the specific questions and answers put to the child. It is noteworthy that the record in this case clearly shows that the trial Judge conducted the three tests because the witness gave rational answers (the test of competence), the witness was sufficiently intelligent (the test of intelligence) and the witness understood the duty of speaking the truth (the test of truth).

Evidential Value of Unsworn Evidence

  1. The evidential value of the unsworn evidence of a child can be found in section 209(3) of the Evidence Act which states that, “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 evidence in support thereof implicating the defendant.” Therefore, the law remains unchanged that the unsworn evidence of a child cannot support the conviction of a defendant for any offence without corroboration.
  2. Finally, it must be noted that the evidence of a child under 14 years of age wrongly admitted on oath is not altogether inadmissible but it will be treated as unsworn evidence which must be corroborated before it can be acted upon. In Okon v The State,[7] Nnaemeka-Agu JSC said,

“From all these decisions, it appears to me to be the law that where, as in this case, an irregularity has occurred in the taking of the  evidence of a child, the correct approach to such evidence is not expunge it but to see whether it has been corroborated by other  evidence implicating the defendant.”

Conclusion

  1. The Evidence Act 2011 has abolished the oaths test and there is no longer a duty on trial courts to determine whether or not a child understands the nature of an oath. After 2011, a child who is 14 years old is deemed to understand the nature of an oath and permitted to give sworn evidence while all other children under 14 years of age can only give unsworn evidence.

[1] Arebamen v The State (1972) NSCC 194,

[2] (1988) ANLR 173 at 181.  See also, Okoye v The State (1972) ANLR 938,

 

[3] (1988) ANLR 173 at 186

[4] (1990) NWLR (pt.145) 484 at 498.  See also, Sambo v The State (1993) NWLR (pt.300) 399 at 421, Okoye v The State (1972) ANLR 938 at 943, Onyegbu v The State (1995) NWLR (pt.391) 510 at 529,

[5] (2006) NWLR (pt.980) 637.

[6] (1993) NWLR (pt.300) 399 at 421. See also, Peters v The State (1997) NWLR (pt.531) 1.

 

[7] (1988) ANLR 173 at 182.  See also, Onyegbu v The State (1995) NWLR (pt.391) 510, Mbele v The State (1988) NWLR (pt.145) 484 at 499, Siwobi v COP (1997) NWLR (pt.482) 411, Sambo v The State (1993) NWLR (pt.300) 399 at 419, Okoyomon v The State (1973) NSCC 9, Ogunsi v The State (1994) NWLR (pt.322) 583 at 590, Solola v The State (2005) NWLR (Pt.937) 460.