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

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