Witnesses in Civil proceedings: Generally speaking, you are able to have anyone you wish appear as a witness in a court proceeding. You are also free to determine the order in which these witnesses appear. In calling witnesses, however, you will need to bear in mind the requirement that any evidence they present must be relevant. You should also note the possibility that certain evidence cannot be presented on account of various exclusionary rules discussed above.
All witnesses you intend to rely upon to give evidence should be served with a court document known as a subpoena. A subpoena compels the person named in the subpoena to appear in court. This document must be filed in the court registry before you give it to your proposed witness. If a person fails to comply with a subpoena they may be held in contempt of court (an offence for which they could be imprisoned).
You may also need to give each witness you call some conduct money to ensure they have sufficient funds to travel to court and appear in court when required.
Parties to Civil proceedings and their spouses by S. 178, in all civil proceedings the parties to the suit and the husband or wife of any of them are competent witnesses. They are competent not only to testify for themselves but also as witness for the adverse party.
Competency in Criminal proceedings
Persons who are otherwise competent may become incompetent to give evidence either for the prosecution or defendant in criminal proceedings or cases. They are as follows:
- Accused persons and Co-accused persons as witnesses to the prosecution:
Such persons are not competent witnesses for the prosecution. They are not impaired because of mental ability but rather they are disqualified from testifying. See S. 180 EA and S. 36(5)(ii) of the Constitution. These sections limit the competency of an accused to testify in a criminal proceedings in which he is standing trial… he can only testify for the defence and not the prosecution. Also where two or more persons are standing trial jointly non of them is a competent witness of the prosecution. However, where two or more persons are accused of committing a particular crime and are being tried jointly, if one of them pleads guilty he will be a competent witness for the prosecution. In practice immediately he pleads guilty, such co-accused is convicted.
- An accusecd and co-accused as witnesses for the defence by Section 180 EA
The above persons are competent witnesses for the defence. However, such persons charged shall not be called as a witness except upon his own application.
- Spouse of Accused Person and of Co-accused persons as witness of the Prosecution. S. 179EA: says they are competent witnesses.
- Spouse of Accused person and Co-accused person as witness of Defence S. 175(1) and S.179 EA. By this sections the spouse of an accused and co-accused are competent witnesses for the defence. But before a spouse of an accused can testify for the defense it must be upon the application of the spouse on trial.
- Legal practitioners as witnesses: A legal practitioner cannot testify for his own client neither can he testify for the opposing side. As far as a particular proceeding in which he is appearing as solicitor are concerned. This is because it is professionally unethical to do so. Where evidence of the legal practitioner is crucial the appropriate thing for him to do is to withdraw his appearance as counsel. However, in Olabanjo V. Tijani, it was held that the fact that a legal practitioner fails to withdraw his appearance will not render his evidence in admissible.
- Judges: A judge is obviously not a competent to testify for either of the parties in a matter in which he presides as an adjudicator. See Olabanjo V. Tijani (supra).
Who is a competent witness? – Witnesses in Civil proceedings
By Section 174(1) all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by reasons of tender years, extreme old age, decease, whether of the body or mind, or any other cause of the same kind.
- Children: Every person including a child, who has a requisite mental capacity to understand the questions put to him and give intelligible answers thereto is a competent witness.
In Onyegbu V. State, the supreme Court held that competency is not a mater of age but understanding. In addition to this a child must understand the duty of speaking the truth. See Section 209 of the Evidence Act.
So if a child can understand the question put to him and give rationale answer but does not understand the duty of speaking the truth; he is not a competent witness and his evidence is not admissible.
- Old person & Persons suffering from disease whether of body or mind: these category of persons are also competent witnesses if they can understand the questions and give rational answers. However, the same preliminary investigation like that of a child will be conducted to determine the competent of such persons.
Such persons will only become incompetent, if by reason of the decease they lack the mental capacity to understand the question and furnish rational answers to. See Section 175(2) of EA and the case of Durhan V. Durhan. See also R. V. Hill were it was established without doubt that a lunatic who is able to understand the nature of an oath and give a material testimony is a competent witness if he, passes the test.
He can render his answers by way of signs, gestures or in writing and such answers will be considered as oral testimony. See Section 176 of the Evidence Act 2011.