Competency of a Witness in a Criminal Case

To be considered here are persons who are competent or incompetent for either side to a criminal trial. Separate treatment will be given to the prosecution and defence in this respect. Nevertheless, the general principle of law as contained in section 179 of the Evidence Act 2011 is that, in criminal cases, the defendant, his wife or her husband, as the case may be, or any person jointly charged with such defendant and tried at the same time, and the wife or husband of the person so jointly charged, is competent to testify.

However, although the accused and any person jointly charged with him and their spouses are competent to testify, they are mainly competent as witnesses for the defence. Again, A person convicted of murder is a competent witness. This was the positions adopted in R. v Felix Onyiuke (1941) 7 WACA 31, where it was held by references to English Common Law and the English Forfeiture Act, that a person under a sentence of death was a competent witness.

Competency of Witnesses for the Prosecution

Witnesses for the prosecution, other than the accused person, his wife or her husband in certain cases, and persons jointly charged and tried with him or her, anyone generally competent as a witness, may testify for the prosecution. To render a co-accused competent as a witness for the prosecution, he must be tried separately or have been acquitted or have obtained a nolle prosequi or have pleaded guilty.

A co-accused tried jointly with another is not a competent witness for the prosecution in that trial except in any of these circumstances: Umole v Commissioner of Police (1957) NRNLR 8. If the co-accused pleads guilty in such a trial and is to be called as a prosecution witness, then the proper course to be followed is for him to be sentenced at once and not after his testimony so that there should be no suspicion that the evidence he gives is influenced by any hope of receiving lighter punishment: Commissioner of Police v Kemavor (1941) 7 WACA 198. Where this procedure of passing sentence is not followed the co-accused nonetheless remains a competent witness for the prosecution so long as he has pleaded guilty and has been convicted: R v Akpan (1940) 6 WACA 188.

If two persons are indicted jointly and an order is made that they be tried separately, the evidence of one of them may be given against the other, although the witness has not been tried nor acquitted or pleaded guilty: The Queen v Omisade & Ors (1964) NMLR 67. In a joint trial, a co-accused while testifying in his own defence, may incriminate the other accused. Although such incriminating evidence is not given on behalf of the prosecution, yet it could be utilized by the court in convicting the incriminated accused.

An accomplice is a competent witness against an accused person. But his evidence generally requires corroboration. Even if an accomplice is standing trial but in a different court for an offence related to the one with which the accused is charged, he is still a competent witness for the prosecution: The Queen v Omisade & Ors. The fact that a person is an accomplice does not prevent him from being a competent witness. In IGP v Sunday Edosomwan (1957) WRNLR 161, it was held that an accomplice who is not charged with the offence along with the accused person was a competent witness for the prosecution.

Again, it was held in The Queen v Omisade & Ors. (1964) NMLR 67; (1964) 1 All NLR 233, that a witness who was not on trial in the case, but facing court trials in other cases or charges which were related to the charges for which the accused persons were being tried was a competent witness. The accused persons in the case were indicated for conspiracy to commit treason and for treasonable felonies. Two of the witnesses were facing charges for being in illegal possession of arms alleged to have been imported into the country in pursuance of the conspiracy and for the purpose of committing treason, that is, to levy war against the country. The Federal Supreme Court held that the two witnesses were competent witnesses.

Spouse of accused person and of co-accused which are spouses of monogamous marriage are competent in criminal cases. This statement is fully correct where they are called by the defence. Where a spouse of the accused is called by the prosecution, there are two different situations to be considered.

First, if the offence is an offence against the other spouse, the injured spouse is a competent and compellable witness for the prosecution without the consent of the accused. Secondly, for any other offence, the spouse can testify for the prosecution; but only, on the application of the accused.

Competency of Witnesses for the Defence

An accused is at liberty to call any witness he feels would assist his case and the mere fact that a witness has been called at one stage by the prosecution will not diminish from his right to call the same witness for his defence. The accused and anybody jointly charged with him are competent as witnesses by virtue of section 179 of Evidence Act, 2011, which states as a general rule that, in criminal cases, the defendant, his wife or her husband, as the case may be, or any person jointly charged with such defendant and tried at the same time, and the wife or husband of the person so jointly charged, is competent to testify.

Lastly, the spouse of the accused with whatever offence is always a competent witness for the defence. Even, where the spouse is compelled to testify for the prosecution because the offence charged affected the other spouse, the defence could still call him or her as a witness, for the reason that the fact that someone has testified for the prosecution does not prevent the defence from calling him also. In any other case, the spouse is competent for the defence whether the accused is charged alone or jointly with another person. Where a person is charged jointly with another, the wife or husband of that person is competent to testify for the co-accused with that person’s consent.

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