An Overview Of The Competence And Compellability Of Spouse Sec. 161 Of The Evidence Act In View By Y.O Ajide – TheNigerialawyer

In civil cases, witness accounts are a crucial factor in the
outcome of the suit, thus it is of great importance to assess the
type of witness to be called and the weight or impact such witness
account will have on the matter.

Witnesses in civil cases may be classified into two forms, a
competent witness, and a compellable witness. A witness may be
competent, but not compellable, and a witness may be compellable
but not competent, and a witness can also be both compellable and
competent at the same time. A witness is said to be competent if he
is capable of being called to give evidence, that is, he is fit and
can be lawfully called to give evidence in a suit and such evidence
shall be considered where it is admissible. A witness can be said
to be compellable if he can be compelled to give evidence, that is,
he or she may be lawfully required to give evidence.

As a general rule, anyone is a competent witness, and may give
evidence in relation to a matter, as thus encapsulated in sec. 155
of the Evidence Act, similarly, sec. 178 of the act provides that,
the parties to a suit and the husband or wife of any party to such
suit shall be competent witnesses, this section provides for the
admissibility of testimony or evidence of a spouse in a proceeding.
By virtue of sec. 158, spouses are also generally competent to give
evidence in any suit, this section, however, fails to provide for
their compellability.

In criminal cases, it is a long held common law principle that
wives were not competent to give evidence against their husbands
but this does not extend to where the husband is accused of
personal violence against the wife (Stein v. Bowman), the evidence
act speaks differently on this matter, as it provides in sec. 159
of the act that, even in criminal proceedings, the spouse of an
accused, the spouse of persons jointly charged with the accused are
competent witnesses to testify.

The act does mention an instance where the spouse will be both a
competent and compellable witness, a careful scrutinization of the
provisions of sec. 161 of the act provides that, in cases of
defilement of girls under 13, homosexuality, or any of the
instances provided for in sections 217, 218, 218, 219, 221, 222,
223, 224, 225,226, 231, 300, 301, 340, 341, 357 to 362, 369, 370 or
371 of the Criminal code, also, subsection (c) of the section also
provides that a spouse shall be a competent and compellable witness
where charged with inflicting violence or injury on his wife or her
husband, the wife or husband of the person so charged shall be both
competent and compellable witness for the prosecution or defence
without the consent of the spouse charged (see R. v. Miller).

Section 161(2) provides that, in instances mentioned in 161(1),
the spouse shall be both competent and compellable only upon the
application of the person charged, this means such witness is only
a competent witness, but for such spouse to be compelled, there
must be an application to the court compelling the spouse to
testify, however, there seems to be a conundrum in this section as
to the compellability aspect, subsection 4 provides that the
failure of a spouse to give evidence shall not be made subject to
any comment by the prosecution, this would imply that a spouse may
refuse to give evidence even though compelled and will not be made
subject to comment by the prosecution, this would defeat the
purpose of compellability, as inability to infer guilt on failure
to give evidence even though compelled would work to defeat the
whole purpose of compelling a spouse to testify thus rendering
inert the purpose of subsection 1.

It could also be interpreted to mean that, the failure to give
evidence by a spouse as referred in this section only applies to
where such spouse is not compelled by an application. The use of
the phrase “an offence” in this section can be interpreted to also
include the instances mentioned in the provisions of subsection 1,
which will then mean regardless of the application in subsection 2,
the spouse may still refuse to give evidence, the situation
would’ve been different if subsection 1 had provided that
“nothwitstanding anything to the contrary in this act or section”,
then this phrase would’ve acted to clear up the confusion in
subsection 4.

Our submission is that, this section should be interpreted to
include all other offences to the exception of offences mentioned
in subsection 1, as the jurisprudence of compellability of the
spouse in instances so mentioned will be defeated by subsection 4
if it is interpreted to include the matters mentioned in subsection
1, and this is also the current position of the common law as
established in R. v. Lapworth.

Y.O AJIDE, 300L, Faculty of Law, University of Ilorin