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Published online by Cambridge University Press: 28 July 2009
The aspects of child evidence addressed by this article relate first to the age of competence, that is, in what circumstances a court should apply the provisions of sections 154(1) and 182(1) of the Evidence Act to a witness; and secondly, what consequences attach to a wrongful application, or non-application, of these provisions in any proceedings before a court.
1 Cap. 62 Laws of the Federation of Nigeria and Lagos, 1958. See now ss, 155(1) and 183(1) of Cap. 112 Revised Laws of the Federation of Nigeria (LFN), 1990.
2 See for example para. 1.11 Report of the Advisory Group On Video Evidence 1989, (Home Office) (Pigot Committee Report): McEwan, J., “Child evidence; more proposals for reform,” [1989] Crim. L.R. 813Google Scholar, and Glaser, D. and Spencer, J. R., “Sentencing, children's evidence and children' s trauma,” [1990] Crim. L.R. 371.Google Scholar
3 See Ohm v. The State (1988) 1 N.W.L.R. 172.Google Scholar
4 Or on affirmation, for which see s. 179 Cap. 62 and s. 180 Cap. 112 of the 1990 Revised Laws.
5 E.g. the former s. 38 Children and Young Persons Act, 1933 (England) and s. 122 Juveniles Act (Zambia).
6 See Birch, D., “Childrens evidence”, [1992] Crim. L.R. 267 at 268.Google Scholar
7 See generally Omosivbe v. Commissioner of Police (1959) W.R.N.L.R. 209 and Okoyomon v. The State (1973) 1 S.C. 21.Google Scholar See also Aguda, T. A., Law and Practice Relating to Evidence In Nigeria (1980) para. 23–05 at 299.Google Scholar
8 However, it is not necessary in Nigeria that the records should set out the actual questions asked and answers given to them. See Mbele v. The State (1990) 7 Supreme Court of E Nigeria Judgments (S.C.N.J.) 12. Contrast the Zambian case of Sakala v. People [1972] Z.R. 150.Google Scholar
9 See R. v. Khan (1981) 73 Cr.App.R. 190 at 192Google Scholar and R. v. Campbell [1956] 2 Q.B. 432 at 436.Google Scholar
10 Op. cit.; see also (1988) S.C.N.J. 45.
11 In support of this contention, counsel cited R. v. Reynolds (1950) 34 Cr.App.R. 60 at 63—a decision based on s. 38(1) of the C.Y.P.A.Google Scholar
12 Cap. 80 L.F.N. 1990. This was also enacted as law in the various states that formerly constituted the Western, Mid-Western and Eastern Regions of Nigeria. The Criminal Procedure Code (Cap. 30 Laws of Northern Nigeria, 1963) was re-enacted in states that formerly constituted the Northern Region.
13 See below for a full discussion.
14 Op. cit., at 182.
15 See n. 12 above.
16 See Cap. 89 Laws of Northern Nigeria (1963). This was also re-enacted as state law in the states that formerly constituted the Northern Region.
17 See Adesanya, S. A., “The child as a witness in civil and criminal proceedings” in Women and Children Under Nigerian Law, 6 Federal Ministry of Justice Law Review Series, 175 at 179.Google Scholar
18 It did not seem to have prevented the Supreme Court in Okon as well as the earlier one of Okoye from making copious reference to state legislation concerning children.
19 Certainly if a proper case were to originate from the Northern part of Nigeria, the Supreme Court would be minded to distinguish Okon v. The State in so far as the C.P.A. is inapplicable.
20 Cf. s. 229 C.P.C. which refers to a person who is unable to understand the nature of an oath by reason of youth. Indeed the Supreme Court emphasized in Okon (at p. 180) that the words “child” and “child of tender years” were quite different in meaning. Contrast the view of Adesanya, op. cit. at 182.
21 (1988) 1 N.W.L.R. 172 at 182Google Scholar but see also judgment of Agbaje, , J.S.C., at 187.Google Scholar
22 See Okoye v. The State 1972 All N.L.R. 500 at 503 where the learned justice doubted whether the definition of “child” in s. 2(1) C.P.A. could be used in relation to 182 of the Evidence Act.
23 Further, under s. 33A of the Criminal Justice Act, 1988 (England) such evidence does not require corroboration; a direction to the jury to be careful suffices.
24 See 11th Report of the Criminal Law Revision Committee an d para. 5. 12 of the Pigot Committee Report op. cit.
25 [1983] Crim. L.R. 174.
26 [1977] 2 All E.R. 288.
27 Ibid, at 291.
28 See S. A. Adesanya op. cit., 183. On the other hand it has never been doubted that in Nigeria a “shango” or idol convert can give evidence on oath to his god; indeed such witnesses are more likely to appreciate the divine sanction for falsehood.
29 And indeed under s. 38 of the English Act, see commentary to R. v. Campbell [1983] Crim. L.R. 174 at 175.
30 Under the Criminal Justice Act, 1988, for instance, by virtue of the live television link procedure it has been possible for a child complainant to testify without physically being in court; also the Criminal Justice Act, 1991 has removed the presumption of incompetence and provides that the evidence of a child under 14 years shall be given unsworn.
31 It is impossible to be dogmatic but generally religion, whether traditional, Christianity or Islam, plays a major role in the Nigerian child's life, thus there is little or no inclination for such child to treat with levity any question relating to God or any other deity.
32 At 183.
33 (1990) 7 S.C.N.J. 12.Google Scholar
34 See Aguda op. cit. para. 23–05 at 299, and generally Muhammadu Duriminya v. C.O.P. 1962 N.N.L.R. 70. See also R. v. Dunne (1930) 21 Cr.App.R. 176 where the enquiry as to competence was conducted in the absence of the jury.Google Scholar
35 Otherwise the court may be acting on the testimony of an intelligent liar; see also S. A. Adesanya op. cit. at 186–189.
36 A conviction can be based solely on the sworn testimony of a child although corroboration is desirable. See Orosunlemi v. The State [1967] N.M.L.R. 278 and Shazali v. The State (1988) 12 S.C.N.J. 145.Google Scholar
37 (1940) 27 Cr.App.R. 175.Google Scholar
38 (1959) W.R.N.L.R. 209.
39 Ibid., at 212.
40 See Aguda op. cit. para. 29–07, 407–408.
41 The Supreme Court's approach would also complicate issues by introducing rules as to the nature of corroborative evidence.
42 (1981) 73 Cr.App.R. 190. See note in [1981] Crim. L.R. 330.Google Scholar
43 Cf. s. 226 of the Evidence Act. cap. 62 (see s. 227 of cap. 112 L.F.N. 1990).
44 (1972) Z.R. 150. See also Zulu v. People (1973) Z.R. 326.
45 [1960] E.A. 159.
46 At 161. cf. R. v. Surgenor op. cit.