Sunday, 25 August 2019

ELIGIBILITY TO TESTIFY AND THE GIVING OF EVIDENCE IN COURT

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The importance of evidence in any judicial proceeding cannot be over-emphasised. The assertions of litigants must be proven sufficiently before judgment can be given in their favour; this can only be done through evidence.

Evidence generally refers to the means by which disputed facts are proven. Oral evidence is one of the recognised forms of evidence and one of the most common. This form of evidence is usually given in judicial proceedings by a witness.

WHO CAN GIVE ORAL EVIDENCE IN COURT
Every person is eligible to testify in court, provided they are able to understand the questions asked and are able to give rational answers to those questions. The evidence which a witness is required to give in court is direct evidence; that is evidence of what he personally saw, heard or perceived.
The law makes special provisions in relation to certain persons who could be called as witnesses. We would consider the provisions of the law in relation to children and dumb persons.

DUMB PERSONS
The requirement that a witness must understand the questions put to him and provide rational answers to them also applies to a witness who is unable to speak. The law permits such a witness to answer the questions put to him through any means by which he can make his answers intelligible, such as by writing down his answers or by making signs/using sign language. Whether he chooses to write or use signs, it must be done in open court. Evidence given by a witness who cannot speak would still be considered to be oral evidence.

EVIDENCE OF CHILDREN
The law makes a distinction between a child that has attained the age of fourteen and a child who is below fourteen.
If a child has attained the age of fourteen, he can testify in any judicial proceeding just like an adult. He would take an oath or make an affirmation and thereafter proceed to give his evidence; he can give sworn evidence.

A child who has not attained the age of fourteen can testify if two conditions are satisfied; the first is that he is possessed of sufficient intelligence to justify the reception of his evidence and the second that he understands the duty of speaking the truth.

The court will always satisfy itself that a child is intelligent enough to understand the questions asked and provide rational answers to them and that he understands what it means to tell the truth before the court would receive his testimony. The child witness who has not attained the age of fourteen cannot give sworn testimony, this means that such a witness would not swear an oath or affirm before he gives evidence.

The implication of giving an unsworn testimony is that while the court can act on the sworn testimony, which it believes to be credible, without such evidence being corroborated; it cannot act on the unsworn testimony of a child without such an unsworn testimony being corroborated by some other evidence. Corroboration means to confirm or support the evidence given.

OATH TAKING OR AFFIRMATION IN JUDICIAL PROCEEDINGS
It is a strict requirement of law that before any witness can testify in any judicial proceeding, such a witness must swear an oath or affirm.
‘Oath’ is defined as a solemn declaration, accompanied by a swearing to God or a revered person or thing, that one's statement is true or that one will be bound to a promise.’[1] It is used to declare in judicial proceedings that one would tell the truth.

‘Affirmation’ is similar to oath in that it is also a solemn declaration to tell the truth. The difference between oath and affirmation lies in the absence of any solemn swearing or declaration made in the name of God in the former, either because of the witness’s religious belief or the absence of such belief.

The testimony of a witness who took an oath and one who affirmed would both be treated in the same way; no one would be accorded a higher consideration.

The option to swear an oath or affirm is in recognition of a witness’ right to religion guaranteed by the constitution. This is because some religions may prohibit the swearing of oath while others may permit it.
 

[1] Chukwuma V. Nwoye & Ors (2009) LPELR-4997(CA)
 
 

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