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Lesson 5 Competence Compellability of Witnesses
Lesson 5 Competence Compellability of Witnesses
Lesson 5 Competence Compellability of Witnesses
COMPELLABILITY OF WITNESSES
MUMA ANDREW
LESSON 5—COMPETENCE & COMPELLABILITY
OF WITNESSES
• SCOPE OF THE LESSON:
1. Meaning of “Competence” and “Compellability”
2. General Rule as to Competence and Compellability;
3. Historical Development of the law on competence &
compellability of witnesses;
4. Exceptions to the general rule as to Competence and
Compellability:
¨ Accused persons;
¨ Spouses;
¨ Children;
¨ Persons of unsound mind
¨ Sovereigns and diplomats;
¨ Bankers.
Meanings: “Competence” & “Compellability”
2. Convicts:
¨ At common law, persons who had previously been
convicted and sentenced for certain infamous crimes
were not allowed to testify.
¨ The incompetence of convicts was modified by the Civil
Rights Act 1828 and abolished by the Evidence Act 1843.
3. Persons Interested in the Outcome of Proceedings:
¨ At common law, persons who had personal pecuniary or
proprietary interest in the outcome of legal proceedings
were incompetent to testify in such proceedings. The
incompetence was abolished by the Evidence Act 1828.
Historical Development of the Law
¨ In summary, today—
1. any party to civil proceedings may give evidence himself
and, if he wishes, compel any other party to those
proceedings to give evidence.
2. an accused person and his spouse are now competent,
but not compellable, witnesses for the defense (see
section 127 (2) of the Evidence Act).
3. an accused person’s spouse is generally not a competent
witness for the prosecution, save for cases where the
accused is charged with any of the offences listed in
section 127 (3) of the Evidence Act. For the cases listed
under section 127 (3), the accused’s spouse is both a
competent and compellable witness for the prosecution.
Modern Law: Parties & Spouses
⧫ NB:
1. paragraph (iii) of the proviso to section 127 (2) of the
Evidence Act states that the failure of the accused
person or his/her spouse to testify shall not be made
the subject of any comment by the prosecution
2. under Article 50 (2) (i) of the new Constitution, an
accused person has the right to remain silent and not
to give evidence at the trial.
3. Where a party or his spouse elects or is compelled to
give evidence, they are liable to be cross-examined by
the adversary just like any other ordinary witness.
Modern Law: Parties & Spouses