The general rule in civil cases is
that all persons including the parties are competent and compellable witnesses
– Morrison Industries Plc v Makonde
(2006) All FLR (Pt. 321) at 352. By section 178 of the Evidence Act 2011,
in all civil proceedings the parties to the suit, and the husband or wife of
any party to the suit, shall be competent witnesses. Also, in a civil action, a
party is a competent witness not only on his own application but also for his
opponent: Elias v Disu & Ors (1962)
1 All NLR 214. The fact that a subpoena
had not been issued is immaterial to the question of competency.
In Elias v Disu & Ors (supra), after some of the plaintiffs had
testified, the defence on opening its case applied to call one of the
plaintiffs who did not give evidence. No objection was raised by the
plaintiff’s counsel; but the trial judge ruled that the plaintiff was not a
competent witness for the defence and rested his ruling on the absence of any
precedent for such and on the fact that no subpoena
had been issued. On appeal, the
Federal Supreme Court, in holding that the judge was wrong in his ruling,
enunciated the foregoing principles.
In Obolo v Aluko & Ors (1976) 3 SC 105, the Supreme Court held
further that a defendant is both competent and compellable to testify on behalf
of plaintiff especially if the defendant has already been served with subpoena for the purpose. It may be
pertinent to add here that a person who testified for one of the parties in a
civil case can also be later called on to testify for the other in the same
case: Barclays Bank of Nigeria Ltd. v
Maiwa (1977) 10 SC 13 @ 15.
The parties to any proceedings
instituted in consequence of adultery and their husbands and wives are
competent to give evidence in the proceedings. However, no witness in any such
proceedings, whether a party or not, is liable to be asked or bound to answer
any question tending to show that he or she has been guilty of adultery, unless
he or she has already given evidence in the same proceedings in disproof of the
alleged adultery.
Note that, when a potential witness
has heard part or all of the evidence of the other witnesses, this in itself
does not make him incompetent. In the case of Akpan Ekerete v Eke (1926) 7 NLR 73, a witness who had been
in court throughout the proceedings was held to be competent to give evidence
in the proceedings. The court however, pointed out that the question of the
weight to be attached to his evidence was a different matter altogether.
© Onyekachi Duru Esq and www.legalemperors.com, 2016. (All Rights Reserved) Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Onyekachi Duru Esq and www.legalemperors.com with appropriate and specific direction to the original content.
© Onyekachi Duru Esq and www.legalemperors.com, 2016. (All Rights Reserved) Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Onyekachi Duru Esq and www.legalemperors.com with appropriate and specific direction to the original content.