The Supreme Court of Nigeria
Friday, the 6th day of July 1990
of the Court
On 19/4/90 I dismissed the appellant's appeal summarily. I indicated then that I would give my reasons for doing so today. I now proceed to do so.
The appellant, Ngwuta Mbele, was charged in an Abakaliki High Court of
the Anambra State of Nigeria with the murder on 18/3/84 at Inyima Amuzu Ezza in
the Abakaliki judicial Division of his wife, Onwushi Agwuta. The actual trial of
the case began before Offiah, J., on l7/4/85 and ended with the judgment the
learned trial Judge gave in it on 30/4/85 whereby he found the appellant guilty
as charged and sentenced him to death. In all five witnesses testified for the
prosecution. The appellant testified in his own behalf. He called no other
In his judgment the learned trial Judge held as follows:
l have carefully considered the evidence led by the prosecution and the defence. I believe the evidence of the prosecution witnesses and find that it was the accused who inflicted the machete cuts which resulted in the death of the deceased. The deceased sustained very serious injuries. From the nature of the injuries sustained and the instrument used it seems clear to me that the accused had the requisite intent for murder. From the totality of the evidence. I am satisfied that the prosecution has proved its case of murder. I find the accused guilty of murder and convict him accordingly.
With particular reference to the evidence of P.W.3 and P.W.4, the learned
trial Judge made the following findings:
P.W.3. Nworie Mbele. and Nwankwo Mbele, P.W.4, are obviously children of tender years. It was therefore urged on behalf of the accused that I should treat their evidence with caution as there can be lapses of memory. I agree. I think it is now settled law that the sworn evidence of a child need not be corroborated as a matter of law, but a jury should be warned not that they must find corroboration but that there is a risk in acting on the uncorroborated evidence of young boy or girls though they may do so if convinced that the witness is telling the truth. See Cross on Evidence, 4th Edition, p.182 and Anebamen V. The State (1972) 4 S.C. 35 at 38. Great caution is of course required in accepting their evidence because although children may be less likely to be acting from improper motives than adults, they are more susceptible to the influence of third persons and may allow their imaginations to run away with them - Cross on Evidence p.183. As I said, I watched P.W.3 and P.W.4 give evidence in the box. They were quite intelligent and gave rational answers to questions put to them by counsel. They were unshaken in cross-examination. They gave their evidence in a cool and assuring manner and were unruffled. There is also in my view sufficient evidence to corroborate their story. In the first place, the accused himself in his defence admitted seeing his wife lying dead in a pool of blood. He admitted that P.W.4, Nwankwo Mbele, came out of the house at the time. He also admitted that Stephen Mbele, P.W.2, came to the scene. Stephen Mbele saw the accused. The accused had a matchet at the time. When asked why he killed his wife, the deceased, accused threatened to kill him. There is also the accused's statement, Exhibit B. Although the accused denied most of the contents of the statement, I find from the evidence that the accused was the author of Exhibit B and that he made it voluntarily. There is again evidence to corroborate the statement. Accused was seen with a matchet by Stephen Mbele, P.W.2. This fact was admitted by the accused. P.W.3 and P.W.4 were at home when the incident took place. This fact was admitted by the accused in his statement.
Because of the main point urged in favour of the appellant in this appeal
it behoves me to reproduce here all what the record of proceedings says about
evidence of P.W.4 before it was taken on oath and the evidence itself in chief:-
P.W.4: Nwankwo Mbele was examined by me in accordance with Section 182 and 154 of the Evidence Act. She is aged about 10 years. She gave rational answers to my question and appears quite intelligent although she says she does not attend school.She understands the duty of speaking the truth and is possessed of sufficient intelligence as to justify reception of her evidence. She is now sworn on the gun and states in Ibo as follows: I live at Amuzu Ezza. I knew the deceased, Onwushi Ngwuta. I lived with her and the accused. On the day of incident and as I woke up I saw the accused inflicting matchet cuts on the deceased. I then ran to call Stephen Mbele, P.W.2. l went to P.W.3, Nworie. Stephen accompanied us back to the house. Stephen raised an alarm, people assembled and they used a stick in knocking off the matchet from the accused's hands. Witness is shown a matchet and says, this is the matchet accused used to inflict the cuts -matchet tendered for identification - matchet marked Identification 1.
The appellant appealed against his conviction and sentence to the Court
of Appeal, Enugu Division. The appellant's appeal was dismissed and the judgment
of the trial court was affirmed. However that court as per the lead judgment of
Uwaifo, J.C.A., held that the Exh. B, the confessional statement of the
appellant was inadmissible because it was not recorded in the Igho language in
which the appellant made it, but in English language, and the interpreter who
was used in the process could not be called to give evi- B dence because of his
death. For the latter reliance was placed on the dccisions in R v. Ogbuewu
12 WACA 482 and R V. Zakwakwa (1960)
5 F.S.C. 12 at 13; [l960] SCNLR 36.
This view of the Court of Appeal on Exh. B has not been challenged before
us by the prosecution.
Guided by the decision in Akpan V. The State (1967) NMLR 185 at 188; Arebamen V. State (1972) 4 S.C.35 and
Director of Public Prosecutions v. Hester (1973) A.C. 296 at 314, Uwaifo, J.C.A.
The sworn evidence of a child need not as a matter of law be corroborated
but the Judge must realise the possible danger in acting on such
And finally, the learned Justice of Court of Appeal held that the only
evidence in this case which could properly be used as corroborative evidence of
P.W.4's evidence is as follows:-
(1) The learned Judge believed the evidence of P.W.2. Part of his
evidence is that he saw the appellant holding a matchet. He asked him why he
killed his wife. The appellant threatened to kill him with the matchet.
(2) The doctor's evidence is that the injuries on the deceased were
consistent with matchet cuts.
(3) The appellant said in evidence that P.W.4 ran to P.W.2 crying and that IP.W.2 came back with her.
And he then came to the conclusion that the pieces of evidence indeed corroborated
the evidence of P.W.4 that it was the appellant who inflicted matchet cuts on
P.W.1, Dr. Eric Nzeakor, a registered medical practitioner, gave, and the
learned trial Judge believed him, the following evidence as to the cause of
death of the deceased:-
Cause of death was excessive bleeding from the injuries received. These were matchet cuts. The most obvious instrument which might have caused these injuries was a matchet.
The evidence was not challenged either in the Court of Appeal or before
As I have said above the Court of Appeal dismissed the appellant's appeal
in that court. This is a further appeal in this court by the appellant against
his conviction and sentence.
Briefs of arguments have been filed and served. According to
the appellant, Chief C.J. Okoli, the issues arising out of the appellant's
grounds of appeal for determination in this appeal are as follows:
Whether an infant aged 10 years is competent to give evidence OD oath without a disclosure of what questions if any, were asked by the
Court and what answers were given by the Court considers the child not prevented
by reason of tender years to be competent to testify.
If not, whether there has been a miscarriage of justice where the
Court forms the opinion that such child is possessed of sufficient intelligence
to justify the reception of the evidence without disclosing what questions
were asked by the Court and what answers were given by the child upon which said
opinion were formed, and there were no other corroborative evidence implicating
the appellant with the offence charged.
iii. Whether the concurrent findings of the Courts below that appellant
killed the deceased, relying on the sole evidence of a child of ten years were
not perverse, having regard to the prevailing circumstances in particular that
a child confronted with a frightful situation imagines many things.
Counsel for the respondent, L.O. Okolo Esq., Principal State Counsel,
Ministry of Justice, Enugu, for his part, states, in the respondent's brief, as
regards the issues arising for determination in this appeal:
1. Is the failure to write down the questions to and answers from
P.W.4 as part of the records fatal to the conviction of the appellant
notwithstanding the fact that the preliminary examination by way of questions
and answers was actually conducted by the learned trial Judge in the open court
and to the hearing of the appellant?
2. Depending on the answer to question 1 above, has the prosecution not proved its case beyond reasonable doubt on the basis of the evidence of P.W.4 corroborated as found by the court of appeal or without corroboration since this is not required as a matter of law and the learned trial Judge approached her evidence with great caution before accepting and relying on the same?
In my consideration of the issues for determination as formulated by
counsel for the appellant I must necessarily consider the issues formulated
counsel for the respondent. So I will stick to the issues formulated by counsel
for the appellant.
I will start with issue 1, which raises the quest ion of the competence
of .4, an infant aged 10 years, to give evidence on oath in the circumstances
surrounding the taking of her evidence on oath as revealed by the record of
proceedings. Counsel for the appellant, Chief Okoli, directed us to the record
proceedings where the following appeared as to all what the learned Judge did
before he started taking the evidence of P.W.4:-
Nwankwo Mbele was examined by me in accordance with Section 182 and 154 of the Evidence Act. She is aged about 10 years. She gave rational answers to my question and appears quite intelligent although she says she does not attend school. She understands the duty of speaking the truth and is possessed of sufficient intelligence as to justify reception of her evidence.
Counsel then submits that because of the absence from the record of
proceeding of (1) the very questions which the learned trial Judge put in his enquiry
under sections 154 and 182 of the Evidence Act to P.W.4 and (2) her 10 them, it
cannot be said that there was sufficient compliance by the trial Judge with the
said provisions. This being the case, counsel continues, the whole of the
evidence of P.W.4 has been wrongly admitted in these proceedings and should
therefore be expunged from the record of this case. Counsel rounded up his
submissions on this issue by saying that since the evidence of P.W.4 was the
mainstay of the case of prosecution against the appellant, there was no evidence
besides it on the printed evidence on which the conviction of the appellant
could be sustained.
Sect ion 154 of the Evidence Act which deals with competence of
(1) All persons shall be 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 reason of tender years, extreme old age,
disease, whether of body or mind. or any other cause the same kind.
(2) A person of unsound mind is not incompetent to testify unless he is
prevented by his mental infirmity from understanding the questions put to him
and giving rational answers to them.
Sections 179 and 182 of the Evidence Act and some of the other provisions of Part X of the Act, with which we are not here concerned, deal with the
taking oral evidence in court.
Section 179 provides thus:
Save as otherwise provided in sections 18l and 182 all oral evidence given in any proceedings must be given upon oath or affirmation administered in accordance with the provisions of Oaths and Affirmations Ordinance.
Section 182 which provides for the taking of unsworn evidence of a child
(1) In any proceeding for any offence the evidence of any child who
is tendered as a witness and does not, in the opinion of the understand the
nature of an oath, may be received, though not given upon oath.
if, in the opinion of the court, such child is possessed of sufficient
intelligence to justify the reception of the evidence. and understands the duty
of speaking the truth.
(2) If the court is of opinion as stated in subsection (1) the deposition
of a child may be taken though not on oath and shall be admissible in evidence
in all proceedings where such deposition if made by an adult would be
(3) A person shall not be liable to be convicted of the offence the
testimony admitted by virtue of this section and give half of the prosecution is
corroborated by some other rr evidence in support thereof implicating the
(4) (Not relevant).
I am satisfied that Aguda's Law and Practice relating to evidence in
Nigeria in paragraph 23-05 page 299 sub-title “Children" correctly in.,
the provisions of sections 154,179 and 182 of the Evidence Act is so far as they
relate to the taking of the evidence of a child to which class of person P.W.4
belongs. The said paragraph 23-05 says:-
A child who is prevented from understanding the questions put to him or from giving rational answers to those questions by reason of tender years, is not a competent witness. The first point to note is that there is no age stated and it is therefore the duty of each court before which a child appears for the purpose of giving evidence, to determine first of all whether the child is sufficiently intelligent to be able to understand questions put to him or to be able to answer questions put to him rationally. The court does this by putting preliminary questions to the child which may have nothing to do with the matter before the court. If as a result of this investigation the court comes to the conclusion that the child is unable to understand questions or to answer them rationally, then the child cannot be a witness at all in the case. But if the child passes this test, he is submitted to a further test for the determination of a further question whether he is in the opinion of the court able to understand the nature of an oath. This question is also determined by the court putting questions to the child as to the nature of an oath. He is asked about God and what will happen to one who tells lies after being sworn, etc. If he fails in this respect he will nevertheless be able to give his evidence but will not be sworn, provided he has passed the first test under section 154(1), and understands the duty of speaking the truth (s.182(1)). Such unsworn testimony is admissible evidence as in the case of the sworn testimony of adults (s.182(2)).
On this same point I will also quote with approval the following passages
from the judgment of Kester, Ag. J., as he then was, in William Omosivbe V.
Commissioner of Police (1959)
W.N.L.R. 209 at 211 - 212:-
Section 182 is identical with the provisions of the Children and Young Persons Act, 1933, in England. The law in this respect is explicitly made clear by Lord Goddard, C.J., in R V. Reynolds 34 Cr.A.R. 63 …………………………………………………………………………………….....................
From the foregoing it is clear that before a child of tender years is
allowed to give evidence, it is the duty of the presiding Judge to satisfy
himself as to whether or not the child is in a position to be sworn: R V.
Surgenor 27 Cr.A. R. 175. In
order to form this opinion preliminary questions must be put to the child in
open Court in the presence of the accused and the jury. In R V. Dunne
21 Cr.A.R. 176 it was held that the examination of the Judge out of Court
of a child to determine competency to take an oath was illegal and sufficient to
invalidate a conviction. In the present case the learned trial Magistrate in his
judgment admit-ted that the first prosecution witness was a girl of tender age.
The notes of evidence
Anumamu: (aged under seven years) sworn on the matchet …”
There is nothing on the record to show that an investigation was first made in
Court to justify admitting the child's evidence on oath. This is a serious
omission. It is more serious than in Dunne's case where the investigation took
place but not in open Court before the accused and the jury. The fact that in
his judgment the learned Magistrate said that after hearing the evidence of the
child in the witness box he came to the conclusion that she was mentally capable
of understanding and giving an intelligent account of the case to his
satisfaction, cannot satisfy this condition precedent nor cure the
irregularity. The next question to decide is whether the irregularity
occasioned a miscarriage of justice as would invalidate the conviction of the
appellant. The evidence of a child of tender age on oath does not require
corroboration although if uncorroborated it is customary to warn juries not to
convict on such evidence of a child except after weighing it with extreme care.
The learned trial Magistrate failed as a condition precedent to satisfy himself that the first prosecution witness was aware of the responsibility of speaking the truth and of the obligations of an oath, before proceeding to record her evidence on which he principally acted in convicting the appellant. There was no material corroboration of the first prosecution witness's evidence, by an independent witness which might have helped to abate the irregularity. I hold that there is a miscarriage of justice here, and that the appeal should he allowed.
Once there are clear indications in the record of proceedings that a
trial Judge carried out the preliminary investigation envisaged by sections 154
and 182 of the Evidence Act before taking the evidence of a child or an infant,
that, in my view, would mean, at least
prima facie, that the said inquiry was carried out even though the actual
questions and answers in the course of the investigations are not recorded. It
will then be up to counsel for the appellant to rebut this prima facie
opinion by showing either that there was no investigation at all or that
what the trial Judge called an investigation under sections 154 and 182 was a
parody or travesty of the investigation envisaged.
In coming to the conclusion I have just reached 1 am persuaded by the
following passage in the judgment of Hurley, C.J., in Olawoym V. C. 0. P. (1962)
N.N.L.R. 29 at 33:-
To paraphrase the words of the Federal Supreme Court in. judgment
in Kano Native Authority V. Raphael Obiora N.R.N.L.R. 42 at page 47;  SCNLR 577 we think that
question whether there has been a fair hearing is one of substance, not of form,
and must always be decided in the light of realities of any particular case.
I also bear in mind what the Lord Chief Justice said in
Regma v. Langham (The
Times April 25. 1972), as regards the maxim justice must be seen to be done,
that it was easy to reply on the hallowed phrase justice must be seen to be done
in order to raise a com plaint over a very
wide field. But in order that justice was not seen to be done it was necessary
to point to some factors on which the doing of justice depended and then to show
that that factor was not visible to those present in court.
Counsel for the appellant has not by evidence rebutted the clear
indications in the record of proceedings as to the learned trial Judge having
carried out the preliminary inquiry pursuant to Sections 154 and l82 of the
Evidence Act before taking the evidence of P.W.4. So I reject the submission
of counsel for the appellant that the learned trial Judge did not carry out
the investigation. This however is not the end of the matter.
It still remains to be seen, whether the result of the investigation
which the learned trial Judge carried out entitled him to take the evidence of
P.W.4 on oath under Section 179 of the Evidence Act. I have said earlier on in
this judgment that Section 182. provides for the taking of unsworn evidence of a
child subject to certain conditions or safeguards. The record of proceedings
shows that the learned trial Judge as a result of his investigation was
satisfied that P.W.4 understood the duty of speaking the truth and was possessed
of sufficient intelligence to justify the reception of her evidence. This
result would entitle the learned trial Judge to take the unsworn evidence of
P.W.4 under Section 182 of the Evidence Act. But that result without anything
more will not entitle the learned trial Judge to take the evidence of P.W.4
under Section 179 of the Act. That something more will be investigated showing
that P.W.4 understood the nature of an oath. There is no indication at all that
the learned trial Judge appreciated this aspect of the point at issue let alone
that he carried out any test at all with a view to determining whether in his
opinion P.W.4 was able to understand the nature of an oath. In the absence of
any indication in the latter regard I must hold and I do hold that the learned
trial Judge was wrong to take the evidence of P.W.4 on oath. The evidence of
P.W.4 is not altogether inadmissible in this case. It only means that it is only
admissible as unsworn evidence of a child under section 182(1) of the Evidence
Act. The implication of this is that, because of section 182(3) of the same Act,
the appellant cannot properly be convicted on the uncorroborated evidence of
The question now is whether there is sufficient corroborative evidence of
that of P.W.4 in Law to warrant the conviction of the appellant for the offence
of the murder of his wife for which he stood trial.
Both the trial court and the Court of Appeal found that there was. So re
are faced with concurrent findings of fact of the two courts below on the point.
I am limiting the concurrent findings of fact on corroboration to those found by
the Court of Appeal. I do not countenance the argument in the respondent’s
brief to the effect that the Court of Appeal was wrong to have red the
findings of the trial court in respect of certain pieces of evidence which the
trial Court held to be corroborative evidence of the evidence of W.4. I do this
because the prosecution has not filed a cross appeal challenging the decision of
the Court of Appeal on the point.
The authorities are clear that this court will not interfere with the concurrent
findings of fact of the two courts below unless there is a miscarriage justice.
A significant finding of fact on the question of corroboration of the evidence
of P.W.4 is the fact that the learned trial Judge believed the evidence of
P.W.2. The Court of Appeal did not disturb the finding and in fact endorsed it.
P.W.2 in his
Stephen Mbele sworn on gun, states in Ibo. I live at Inyima Amuzu, Ezza. I am a farmer. I know the accused. I knew Onwushi Ngwuta as deceased. She was the accused's wife. I know Nworie Mbele and Nwankwo Ngwuta came to my house on the day of the incident. They were crying when they came to my house. They told me something concerning the accused and his wife. I accompanied them to their house. There I saw the deceased, Onwushi Ngwuta, lying dead in a pool of blood. I saw the accused also. He was holding a matchet. I asked him why he killed the deceased. He said I should wait and that he would tell me why he killed her. He threatened to kill me with the matchet. I raised an alarm. Some villagers responded to the alarm. They assisted me to remove the matchet from him. We used a stick in knocking off the matchet from him. We apprehended him tied him up. We sent for our chief who later reported the matter to the Police. The Police then received the body. The deceased had matchet cuts on the neck and other parts of the body. The accused is my half brother. I have known him for years and he has never behaved abnormally.
The evidence of P.W.4 was damning against the
appellant. It shows that it was the appellant who inflicted the matchet cuts on
the deceased, his wife, as a result of which the latter died. So corroborative
evidence of the evidence of P.W.4 must be evidence outside of that given by
P.W.4 which renders it probable that the evidence of P.W.4 to the effect that it
was the appellant who inflicted the fatal injuries on the deceased was true and
that it was reasonably safe to act on it. See R. V. Baskerville (1916) 2 K.B.D. 658 at 665 and R
v. Ornisade & 17 Ors. (1964) NMLR 67.
Before I consider the significant evidence of
P.W.2 on the issue of corroboration, I should mention the following evidence
which the Court of Appeal regarded as corroborative evidence of that of P.W.4,
The doctor's evidence is that the injuries
on the deceased were consistent with matchet cuts.
(3) The appellant said in evidence that P.W.4 ran to P.W.2 crying and that P.W.2 came back with her.
The doctor's evidence shows no doubt that there
was a felonious killing. But nothing in the evidence linked or tried to link the
appellant with the crime. Corroborative evidence must be evidence which confirms
in some material particular not only that the crime has been committed but also
that it was the appellant who committed it. See again R.
v. Baskerville (supra) at page 667. So the doctor’s evidence cannot in
law be corroborative evidence of the appellant that P.W.4 ran to P.W.2 crying
and that P.W.2 came with her. This evidence from the appellant did not show that
an offence has been committed let alone that he committed it.
So, I am now left with the evidence of P.W.2 on
the issue of corroboration. In assessing the evidential value of the evidence in
this regard I will permit myself to be guided by the following passage in the
opinion of the Privy Council in Hall V.
Reginam (1971)1 All E.R. 322 at 324:-
It is a clear and widely known principle of
the common law Jamaica, as in England, that a person is entitled to refrain from
answering a question put to him for the purpose of discovering whether he has
committed a criminal offence. A fortiori
he is under no obligation to comment when he is informed that someone else has
accused him of an offence. it may be that in very exceptional circumstances an
inference may be drawn from failure to give an explanation or disclaimer, but in
their Lordships' view silence alone on being informed by a police officer that
someone else has made an accusation against him cannot give rise to an inference
that the person to whom this information is communicated accepts the truth of
the accusation. (Italics mine).
The gist of the evidence of P.W.2 is that
following what P.W.4 told him he went immediately thereafter to the scene of the
crime; when he got there he found the deceased lying dead in a pool of blood;
the appellant was there too, holding a matchet in his hand; P.W.2 then accused
the appellant of killing the deceased and demanded an explanation for the act;
the appellant neither gave an explanation nor a disclaimer; instead the
appellant threatened P.W.2 with the matchet he, the appellant, was holding,
after telling P.W.2 to wait and he, the appellant, would tell P.W.2 why he,
the appellant, killed his wife.
It appears very clear to me from the analysis
of the evidence of P.W.2 I have just made that the evidence of P.W.2 does not
consist only of the failure of the appellant to give an explanation or a
disclaimation after having been accused of the crime in question. In other words
the evidence of P.W.2 does not rest on this alone. In addition. P.W.2 found the
appellant at the scene of the crime with the dead body of the deceased in a pool
of blood and with the instrument, according to the evidence of P.W.4, with which
the deceased was killed in his hands. The appellant showed aggression on the day
by threatening P.W.2 with the weapon. All these facts from the evidence of P.W.2
taken along with the failure of the appellant to give an explanation or a
disclaimer when he was accused of having killed his wife and the insinuation
of his having admitted the same when he told P.W.2 to wait and he would tell him
why he killed the deceased. leave me in no doubt that they render it probable
that the evidence of P.W.4 was true and that it was reasonably safe to act on
In effect I am satisfied that in fact and in
law the evidence of P.W.2 was corroborative of that of
All what I have regarded above as corroborative
evidence was circumstantial evidence. Nevertheless, it has been said in R
v. Baskerville (supra) at 667 that the corroboration need not be direct
evidence that the accused committed the crime and it is sufficient if it is
merely circumstantial evidence of his connection with the crime.
The conclusion I reach therefore is that I can
find no justifiable reason disturb the concurrent findings of the two lower
courts as to the guilt of the This disposes of issues 2 and 3 raised in the
appellant's brief of arguments. For I can find no miscarriage of justice in the
finding of the two lower court that the evidence of P.W.2 corroborated that of
It is for the above reasons that I dismissed on
19/4/90 the appellant's appeal and affirmed his conviction and sentence.
Judgment delivered by
I dismissed this appeal on the 19th day of April,
1990 after reading the record of proceedings and judgment in the court below,
the briefs of argument in the appeal filed by counsel to the parties, and
hearing counsel at the oral hearing, and reserved my reasons for the judgment
till today. I now proceed to give my reasons for the judgment.
The appellant was tried and convicted of the offence of the murder of his
wife, Onwushi Ngwuta, on 18/3/84 at Inyima Amuzu, Ezza, in the Abakaliki
Judicial Division of the High Court of Anambra State. The case against the
appellant is that he inflicted serious matchet cuts on the deceased and these
injuries caused her death. The appellant denied being responsible for the
injuries although he admitted seeing the deceased in a pool of blood. The only
eye witness was Nwankwo Mbele, P.W.4, a girl of 10 years of age. She gave
evidence on oath after the learned trial Judge, Offiah, J., examined her in
accordance with sections 182 and 154 of the Evidence Act to satisfy himself that
she understood the duty of testifying on oath - to speak the truth
and that she possessed sufficient intelligence to justify reception of
In her testimony, she said she woke up that morning and saw
accused/appellant inflicting matchet cuts on the deceased. The appellants appeal
to the Court of Appeal was unsuccessful and the appellant has now appealed to
this court against the sentence. The appellant's contention that:
(1) a child of 10 years of age is too young to understand the an oath and
the duty of speaking the truth; and
(2) accordingly there is danger of acting on the uncorroborated evidence
given by such a child.
There can be no doubt that as a matter of law the sworn evidence of a
child need not be corroborated. See Akpan
v. The State (1967) NMLR 185 at 188;
Arabamien v. The State (1972)4 S.C.35 and Director of Public
Prosecutions v. Hester (1973) A.C.296 at 314.
Before today, I have had the advantage of reading the draft reasons for
judgment just delivered by my learned brother, Agbaje,J.S.C. He has considered
in detail all the issues raised in this appeal in issue of corroboration of the
sworn evidence of a child of the tender age of 10 years and the danger of acting
on such evidence without corroboration.
I find myself in agreement with the opinions expressed by brother, Aghaje,
J.S.C., on all the issues raised in this appeal. I adc as my own. It was for the
above reasons and the fuller reasons set ot reasons for judgment delivered by my
learned brother, Agbaje, J.S.C., I dismissed the appeal.
Judgment delivered by
I summarily dismissed the appeal of the appellant on 19/4/90 and I indicated then that I will give my reasons today.
I have read
the reasons given by my learned brother, Agbaje for dismissing this appeal. I am
satisfied that he has dealt with the issues involved which are already well
settled and so completely that I consider it unnecessary to add my own opinion
which could not be different. 1 agree entirely with them and adopt them as
Judgment delivered by
I read in draft form the reasons for judgment by Agbaje, J.S.C., and I
am in full agreement with him. It was for the same reasons I dismissed this
appeal on 19th day of April, 1990.
Judgment delivered by
On the 19th of April, 1990, the appellant's appeal was dismissed
summarily. After reading the record of proceedings and the brief of the
appellant and listening to the arguments of counsel, I dismissed the appeal
and adjourned the matter till today to give my reasons for the dismissal of the
appeal. I now proceed to do so.
I have had the privilege of a preview of the reasons for judgment just delivered
by my learned brother, Agbaje, J.S.C., and I agree with his reasoning and
conclusions. I only wish to underscore a few points.
One principal complaint on behalf of the appellant is that the learned
trial Judge failed to comply with the provisions of sections 154 and 182 of the
Evidence Act. Now part of the record of the learned trial Judge runs as
Nwankwo Mbele was examined by me in accordance with sections 182 and 154 of the Evidence Act. She is aged about 10 years. She gave rational answers to my questions and appears quite intelligent although she says she does not attend school. She understands the duty of speaking the truth and is possessed of sufficient intelligence as to justify reception of her evidence.
Learned counsel for the appellant has attacked this procedure. The gist
of his submission is that the learned trial Judge ought to have recorded the
specific questions he put to the child of tender years and the answers he got
therefrom, from which he drew the inferences that she was possessed of
sufficient intelligence to understand the importance of speaking the truth and
the nature and consequences of an oath. The learned Principal State Counsel
for the respondent on the other hand submitted that the above record shows that
the sections of the law have been substantially complied with and that, in any
event, there has been no miscarriage of justice.
To some extent, I think the learned Principal State Counsel is right. To
begin with none of the cases which the learned counsel relied upon appears to
support the proposition he has advanced. The case of William Omosivbe v. Commissioner of Police ( l959)
was one where the learned Magistrate did not at all advert his mind to the
requirement of the law. The record
did not show that he asked any question at all. The present case in which the
record clearly shows that the learned trial Judge put the necessary and
questions and came to the correct conclusions on them, although those questions
were not clearly spelt out is different. In the case of Rex V. Dunne
A.R. 176, the Judge held the preliminary examination of the small child
the court. In the instant case. the record clearly shows that the
was done inside the court as a part of the proceedings and it has not been
disputed that the questions
were asked as recorded. In the case of William John Surgenor (1940) 27 Cr. A.R. 175, the learned trial Judge merely accepted
the opinion of the committing justices on the point without any further
investigation. It is clear, therefore, from all these that the cases which the
learned counsel for the appellant relies upon for his propositions do not
support his submission.
This brings me to the true interpretation of section l82(I) of the
Act. That section says:
S.182 (1) In any proceedings for any offence the evidence of any child who is tendered as a witness and does not, in opinion of the court, understand the nature of an oath, may be received, though not given upon oath, if, in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.
The first important observation that must be made is that the sub-section
says if “any child who is tendered as a witness…does not, in the opinion
of the court, understand the
nature of an oath", or does not show that he is possessed of sufficient
intelligence and understands the duty of speaking the truth to justify the
reception of his evidence on oath, then his evidence may be received by the
courts even though it has not been given on oath. It does not state that there
must be a mini-trial before the opinion of the court is reached on the point.
Indeed, there is no prescribed procedure under section 182(1) for that. All
that is necessary is that before the full view of all in open court, the Judge
puts the necessary preliminary questions to enable him reach a decision on the
point, and that that he has done so is borne out by the record, and that the
manner he puts the questions complies with the rules of natural justice. Ideally
a Judge may, ex abundantia
down in his record what questions he asked and what answers he got which enabled
him to reach his conclusions on the point. But in my opinion, that he has failed
to record them is not fatal to his conclusions once his record that he put the
necessary questions and got the proper answers. In the instant case, I am
satisfied that as far as the procedure adopted goes there ha~ been a sufficient
compliance with the law.
But that is not the end of the problem with respect to the reception the
evidence of P.W.4. In this respect, I must once more reiterate the function of a court faced with the testimony of a witness who appears to be a child
within the meaning of the law. I can do no better here than repeat what stated
in this court in the case of Asuquo Eyo Okon and 2 Ors. v. The State
S.C.N.J. (Part 1)45 at p.53 (l988) I NWLR (Pt.69) 172,, said:
It is my view that once a witness is a child, by the combine effect of sections 154 and 182(1) and (2) of the evidence Act, the child is sufficiently intelligent to understand the questions he may be asked in the course of his testimony and to be able to answer rationally. This is tested by the court putting to him preliminary questions which may have nothing to do with the matter before the court. If, as a result of these preliminary questions, the court comes to the conclusion that the child is unable to understand the questions or to answer them intelligently, then that child is not a competent witness within the meaning of section 154(1). But if the child passes this preliminary test then the court must proceed to the next test as to whether, in the opinion of the court, the child is able to understand the nature and implications of an oath. If after passing the first test he fails this second test, then being a competent witness he will give evidence which is admissible under section 182(2), though not on oath. If. on the other hand, he passes the second test so that, in the opinion of the court, he understands the nature of an oath, he will give evidence on oath.His evidence thus given will be admissible and be admitted.
It is thus clear that a Judge faced with the testimony of a child witness
has two vital investigations to make, namely:
1. Is he or she possessed of sufficient intelligence to justify the reception
of his/her evidence, that is: does he/she understand the duty of speaking the
If the answer is in the affirmative, then to the second question:
2. Does he understand the nature of an oath?
It is only after the above two questions have been answered in the
affirmative that an oath can lawfully be administered to the child.
Applying the above principles to the case in hand. it appears tome from
the extract of the learned trial Judge's record set out above. that he adverted
to the first of the above questions but not the second. As it is so. it appears
to me that the positive answer to the first question entitled him to receive her
evidence. But as the second question was not adverted to. she ought not to have
been sworn. So, the evidence of P.\V.4 must be treated as an unsworn testimony
of a child under the section. It would require corroboration by reason of
As for evidence in corroboration of the evidence of P. W.4, I agree with
the two lower courts that it is to be found in the evidence of P.W.2. It was
Wrong. however. to have treated the medical evidence of Dr. Eric Nzeako (P.W.1)
as corroborative evidence. For, corroboration requires that such evidence must
be of a material particular implicating the accused. Although evidence of P.W.1 is maternal, it does not in anyway
implicate the appellant.
For the above reasons and the fuller ones contained in the Reasons for
Judgment just delivered by my learned brother, Agbaje, J.S.C., I dismissed the
appellant's appeal on 19/4/90 and postponed the reasons for my judgment till