CHAPTER TWO

2.1 THEORETICAL FRAMEWORK

2.1.1 Natural Law Theory

Natural law theory posits that certain principles of justice and morality are universal, deriving
from human nature and discoverable through reason. These principles include the right to be
heard and the duty to protect the vulnerable in society — particularly children. According to
Finnis, human beings possess inherent dignity which legal systems must recognize and
uphold (1. Finnis, J. Natural Law and Natural Rights (Oxford University Press, 1980) p.
23)1.

In the context of evidence law, natural law supports the idea that even a child, being human
and capable of truth-telling, deserves a fair opportunity to be heard. Courts recognizing a
child’s unsworn testimony under Section 183 of the Evidence Act (2. Evidence Act 2011,
s.183)2 reflects a moral commitment to justice, consistent with natural law principles. Natural
law also aligns with international frameworks like the United Nations Convention on the
Rights of the Child (UNCRC), which affirms that children capable of forming views have the
right to express them in all judicial matters affecting them (3. United Nations Convention on
the Rights of the Child, Article 12)3.

2.1.2 Positive Law Theory

Positive law refers to rules formally enacted by a legitimate authority, such as the legislature,
and it prioritizes legal certainty and structure. Under this theory, the admissibility of a child’s
evidence is governed strictly by statutory provisions, especially Sections 175 to 183 of the
Evidence Act 2011 (4. Evidence Act 2011, ss.175–183)4.

Positive law views competency and compellability as legal qualifications based on criteria
such as mental capacity and understanding of the nature of an oath. For example, Section 175
states that all persons are competent to testify unless incapable of understanding questions or
giving rational answers due to age or mental incapacity (5. Evidence Act 2011, s.175(1)5).

This theory justifies judicial discretion through voir dire examinations, where the trial judge
assesses whether the child understands the duty to speak the truth — a condition for
admitting unsworn evidence (6. Evidence Act 2011, s.183)6. Unlike natural law, which leans

1
. Finnis, J. Natural Law and Natural Rights (Oxford University Press, 1980) p. 23).
2
Evidence Act 2011, s.183)
3
. United Nations Convention on the Rights of the Child, Article 12).

6
on morality, positive law ensures that the use of child evidence adheres to legally set
standards and safeguards.

2.2 CONCEPTUAL FRAMEWORK

2.2.1 Child

A child is generally defined in Nigerian law as a person under the age of 18. This is affirmed
by both domestic and international legal instruments. According to the Child’s Rights Act
2003, a child is a person below the age of eighteen years Child’s Rights Act 2003, Section
277. This definition aligns with international standards such as the United Nations
Convention on the Rights of the Child (2. UNCRC, Article 1)7. In the context of evidence
law, the classification of a person as a child is significant because it affects how their
testimony is received, especially in terms of competency and compellability.

2.2.2 Evidence

Evidence refers to any material or testimony presented in court to establish the truth of a
matter. According to Black’s Law Dictionary, evidence is “something (including testimony,
documents, and tangible objects) that tends to prove or disprove the existence of an alleged
fact” (3. Black’s Law Dictionary, 11th ed., 2019)8. Under Nigerian law, the Evidence Act
2011 governs what constitutes admissible evidence and lays down rules regarding witnesses,
including children (4. Evidence Act 2011, Part IX)9.

2.2.3 Child Evidence

Child evidence refers to testimony given by individuals classified legally as children. The
Nigerian Evidence Act permits both sworn and unsworn testimony of children, provided
the child is competent to testify. Section 183 of the Evidence Act 2011 allows a child who
does not understand the nature of an oath to give unsworn evidence, so long as the child
possesses sufficient intelligence and understands the duty of speaking the truth (5. Evidence
Act 2011, s.183(1)10). In Okoye v. The State, the Supreme Court emphasized the need for
caution and corroboration when relying solely on the testimony of a child witness (6. Okoye
v. The State (1972) All NLR 500)11.

2.2.4 Competency

Competence refers to the legal fitness of a person to testify as a witness in court. Section 175
of the Evidence Act 2011 provides that all persons shall be competent to testify unless they
are incapable of understanding questions or giving rational answers due to tender years,

10

11
disease of mind, or any other cause (7. Evidence Act 2011, s.175(1)12). For children,
competency is determined through a voir dire test conducted by the judge to assess the
child's understanding of truth and the proceedings (8. Olayinka v. The State (2007) 9 NWLR
(Pt 1040) 561)13. Competency is a threshold requirement, and failure to establish it can render
the evidence inadmissible.

2.2.5 Compellability

Compellability concerns whether a competent witness can be legally required to give

evidence. While most competent witnesses are also compellable, courts exercise discretion
when it comes to children, particularly in sensitive or traumatic cases. Compellability is not
expressly defined for children in the Evidence Act, but judicial discretion is exercised in line
with the principle of the best interest of the child, as provided under the Child’s Rights Act
2003 (9. Child’s Rights Act 2003, Section 1)14. In practice, a child witness may not be
compelled to testify if doing so would cause harm or trauma, and this principle is supported
by both domestic and international human rights instruments (10. United Nations Convention
on the Rights of the Child, Article 3)15.

2.3 SUMMARY OF REVIEW

This chapter explored the theoretical and conceptual basis for understanding competency and
compellability of a child’s evidence. Natural Law theory supports the inclusion of child
testimony on moral grounds, recognizing the child's inherent dignity and the importance of
truth in justice delivery. Positive Law theory focuses on statutory provisions, particularly the
Evidence Act 2011, which outlines the legal framework for admitting and evaluating child
evidence. Conceptually, key terms such as child, evidence, child evidence, competency, and
compellability were defined using statutory and case authorities. The court’s power to admit
or reject child testimony based on competence, and the limits of compellability in protecting
child welfare, were emphasized. Additionally, the role of voir dire in determining a child’s
understanding was discussed with reference to Nigerian case law.

2.4 GAP IN KNOWLEDGE

While Nigerian courts have established guidelines for the admissibility of child evidence,
practical inconsistencies remain in the application of these rules. Many courts lack child-
sensitive procedures and environments, which can affect the willingness and ability of
children to testify. Furthermore, there is insufficient empirical research on how children
experience court proceedings in Nigeria and how their rights are affected during criminal
trials. This project addresses the gap by critically evaluating the effectiveness of statutory
provisions on competency and compellability in actual practice, using judicial decisions and
legal analysis to assess how well children are protected and heard in the justice system.

12

13

14

15
2.5 HISTORICAL EVOLUTION

Historically, under English common law which influenced Nigerian law children were often
deemed incompetent to testify, especially if they could not comprehend the nature of an
oath. Over time, judicial attitudes shifted towards recognizing that children, though young,
can be credible witnesses. The shift began with reforms in England and continued in Nigeria
with progressive legislation.

The Nigerian Evidence Act 2011 marked a significant evolution from earlier laws by
codifying the admissibility of unsworn child evidence (11. Evidence Act 2011, s.183)16.
The judiciary has also contributed to this evolution. In Okoye v. The State, the Supreme
Court laid the foundation for the cautious but necessary use of child testimony (12. Okoye v.
The State (1972) All NLR 500)17. In Olayinka v. The State, the Supreme Court clarified the
role

of voir dire in determining a child's competence to testify (13. Olayinka v. The State (2007)
9 NWLR (Pt 1040) 561)18.

Internationally, the UN Convention on the Rights of the Child influenced local reform by
promoting the child’s right to express views freely in judicial settings (14. UNCRC, Article
12)19. This international perspective, along with domestic legal and judicial reforms, has
shaped Nigeria’s evolving approach to child evidence.

16

17

18

19