EYE WITNESS: WHETHER A CHILD SERVES AS A COMPETENT WITNESS

A child is a competent witness to testify, unless the court considers that he is prevented from understanding the questions put to him or the court considers that he is prevented from giving rational answers to questions put to him.


By Sections 175(1) and 209(1) of the Evidence Act, 2011, a child is a competent witness to testify, unless the court considers that he is prevented from understanding the questions put to him or from giving rational answers to questions. In any proceedings in which a child who has not attained the age of fourteen 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, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth. Thus, before receiving the evidence of a child under the age of fourteen years, the trial court must first satisfy itself that the child has sufficient intelligence to give evidence and understands the duty of speaking the truth. Where, in the opinion of the trial court, the child meets the requirements the child will give unsworn testimony.


Who is an eye witness?


An eye witness denotes a person who can testify as to what he has seen from personal observation. Hence, an eye witness testifies to what he has seen personally from any of his senses. The evidence of an eyewitness constitutes one of the ways to prove the commission of a crime. The Supreme Court Justices explained who is to be considered an eyewitness in the case of AJA V. STATE (2025) 19 NWLR (PT. 2021) 433


The simple summary of the complex fact leading to the institution of the criminal proceeding against the Appellant ( Defendant at the trial court) and the Appellant’s further appeal to the Supreme Court against the concurrent findings of the trial court and the court of appeal is that:


The Appellant and his co – accused person were arraigned at the High Court of Gombe State on a two count charge of conspiracy to commit culpable homicide punishable with death. Nevertheless, they pleaded not guilty to the charge. The Respondent claims that the Appellant, his co – accused person, and five other persons at large on or around 25th April, 2017 conspired to attack one Muhammed Usman and thus attacked him on this way from the mosque by hitting him with a pistol on his head and various parts of his body causing his death with knowledge that death was the probable consequence of their actions. 


During the trial the Respondent called six witnesses to prove its case against the Appellants. PW4 was the thirteen years old daughter of the deceased who gave an eye witness account of the killing of her father. But prior to her giving evidence before the Honourable Court the Court made inquiries into her ability to understand the duty of speaking the truth and found that she possessed sufficient intelligence to give evidence before the court then proceeded to take her evidence. The trial Court had the witness take her affirmations before giving her evidence. 


PW4 made her affirmations before giving her evidence in chief whilst in the presence of the Appellant and Respondent and no objection was raised regarding her competence to give such evidence before the Court. The Counsel proceeded to cross examine the witness thereafter without any protest.


The Appellant’s counsel objected when the Respondent thereafter sought to tender the Hausa and English version of the Appellant’s confessional statement to the Court. The Appellant’s Counsel claimed that the Appellant was the not the maker of the statement. Nevertheless, the trial Court admitted the statement as exhibits “BU” and “BU1” . In the confessional statement, the Appellant narrated the circumstances surrounding the death of the deceased. The Respondent also tendered the medical evidence of the cause of death through PW5. 


The Appellant and his co – accused called six witnesses in asserting their defence to the charge. The Appellant testified as the DW6. In his evidence-in-chief the Appellant admitted that he signed the confessional statement but testified that it was done under extreme torture.


At the conclusion of the trial, in it’s judgement, the trial Court placed reliance on the eye witness account of PW4, the Appellant’s confessional statement, the medical evidence of cause of death and the evidence of the other prosecution witnesses in making a finding of guilt against the Appellant. 

The Court held that the Respondent led sufficient credible and cogent evidence to prove beyond a reasonable doubt, the Appellant’s guilt of the two offences charged. It accordingly convicted and sentenced the Appellant.


The Trial Court and the Court of Appeal relied on the sufficient, credible, and cogent evidence led by the Respondent to prove beyond a reasonable doubt the Appellant’s guilt for the two offences charged, and the two offences charged were corroborated by the evidence led on record and dismissed the appeal accordingly. Still dissatisfied the Appellant appealed to the Supreme Court. 


The Supreme Court iterated that: the provision of Sections 175(1) and 209(1) of the Evidence Act, 2011 have been interpreted by the Supreme Court to mean that before receiving the evidence of a child under the age of fourteen years, the trial court must first satisfy itself that the child has sufficient intelligence to give evidence and understand the duty of speaking the truth and that where, in the opinion of the trial court, the child meets these requirements, the child will give unsworn testimony. 


The Supreme Court further stated that: under the erstwhile Evidence Act, Section 183 of the Evidence Act, Cap. 112, Laws of the Federation 1990, where a child of any age understood the nature of an oath and gave sworn testimony, the evidence was treated as and accorded the status of the evidence of an adult and it was sufficient to support a conviction without need for corroboration.


Furthermore, the Supreme Court reiterated that the purpose and essence of Section 209 of the current Evidence Act is to remove the possibility of the conviction of an accused person being based on the evidence of a child under fourteen years of age alone, under any circumstances. Hence, it provides in its Section 209(3) that a person shall not be liable to be convicted of an offence unless the testimony of a child under fourteen years, and admitted under Section 209(1), given on behalf of the prosecution, is corroborated by some other material evidence in support of such testimony implicating the defendant. In other words, the prohibition in Section 209(1) that a child under the age of fourteen years should not give sworn testimony is to prevent a situation where the evidence of the child under the age of fourteen years will be accorded the status of the evidence of an adult and used to support a conviction without the need for corroboration. Therefore, where a trial court, after ascertaining the ability of a child witness to understand the duty of speaking the truth and his sufficiency of intelligence to give evidence, mistakenly or inadvertently causes a child to be sworn before taking his evidence, it cannot be held to have derogated from the essence of Section 209 of the Evidence Act, so long as the trial court does not convict solely based on that evidence and finds adequate corroborative evidence in support thereof. Such mistake or inadvertence will qualify as a mere irregularity, without any substance, and cannot vitiate the sworn evidence of the child. 


Thus, the Appellant was in Court and was duly represented by Counsel when PW4 gave her testimony, and neither the Appellant nor his Counsel raised any form of objection to the effect of the witness making an affirmation before giving her evidence in chief and the Counsel procedure to cross-examine the witness thereafter without any objections or protestations. 


It is a settled position of the law that an accused person who acquiesces to an irregular procedure without any objection that did not lead to a miscarriage of justice cannot complain or try to capitalise on the said irregular procedure in an appeal. 


Consequently, a child under the age of 14 years may give evidence if, based on the opinion of the court, he (the child) possesses sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth. Thus, such evidence will however not be given either on oath of affirmation, by virtue of Section 209(1) of the Evidence Act, 2011 (as amended). 


The overriding purpose of Sections 175(1) and 209(1) of the Evidence Act, 2011 is that a child’s evidence may only be received if the court is satisfied that he is possessed of sufficient intelligence to justify the reception and reliance of his evidence thereon.


The Appellant’s counsel nevertheless contended that the fact that the evidence of PW4, a child, was taken on affirmation, renders the evidence inadmissible. The learned trial Judge, though conducted a preliminary examination and was satisfied that PW4 possessed the requisite requirements as stated by the provisions cited earlier. 


In addition, the fact that the trial court allowed the child to give evidence on affirmation will not render the evidence inadmissible. Furthermore, the irregular mode by which the evidence of PW4 was received amounts to a procedural irregularity, which the appellant ought to have objected to then and there. It is a settled principle of law that the proper time to object to a procedural irregularity is at the time when the irregularity arises or occurs. However, neither the appellant nor his counsel raised any objection at the relevant time. A party may only be allowed to complain of a procedural irregularity after the occurrence of the irregularity where he has suffered a miscarriage of justice. 


By way of conclusion, a child can be considered a competent witness who can testify after the court has conducted a preliminary examination that shows that the child has sufficient intelligence, understands the fact and procedure of the issue and can give rational answers to the questions put before him. When a child that is less than fourteen years wants to give a testimony according to the provisions of Sections 175(1) and 209(1) of the Evidence Act, 2011, the child must not be sworn and must not give evidence by oath or affirmation. 





About the Author: 

Aisha Abdulhamid is a member of Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. She can be reached via +2349038146810.