1. Statutory provisions
Section 209 of the Evidence Act 2011 states as follows;
(1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, 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) A child who has attained the age of 14 years shall, subject to sections 175 and 208 of this Act give sworn evidence in all cases.
(3) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of subsection (1) of this section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.
(4) If a child whose evidence is received under this section, willfully gives false evidence in such circumstances that he would, if the evidence had been given on oath have been guilty of perjury, he shall be guilty of an offence against Section 191 of the Criminal Code and on conviction, shall be dealt with accordingly.

2. Categories of Children
2.1 Section 180 of the Evidence Act requires that all oral evidence in any proceedings must be given on oath except as provided in sections 208 and 209 of the Act. The exemption in section 209 of the Act permits trial courts to accept the unsworn evidence of children. Section 209 of the Evidence Act 2011 has changed the law on the reception of the evidence of children and now makes a clear distinction between the evidence of children under 14 years of age and children who are 14 years old and above. The choice of 14 years is probably due to the provisions of the repealed Children and Young Persons Act which stated that persons under 14 years of age are children. The Child Rights Act now defines a child as a person who has not attained the age of 18 years.

2.2 There are now two categories of children for the purposes of examination in court. The first category is children who are 14 years old and above and such children must give evidence on oath. Section 209(2) of the Act states that, “A child who has attained the age of 14 years shall, subject to sections 175 and 208 of this Act give sworn evidence in all cases.” The second category is children who are under 14 years of age and such children are not permitted to give evidence on oath. See section 209(1) of the Act states that where, “a child who has not attained the age of 14 years is tendered as a witness, such a child shall not be sworn and shall give evidence otherwise than on oath or affirmation.” See, Kiwo v The State (2020) LPELR 53900-SC, per Odili JSC.

2.3 The sworn evidence of a competent child witness is placed on the same pedestal with the sworn evidence of a competent adult witness and the Evidence Act does not require corroboration of the sworn evidence of children. This means that except in cases where corroboration is required by statue or practice the sworn evidence of a single child witness is sufficient to prove an offence against a defendant. See, Arebamen v The State (1972) NSCC 194, Isa v Kano State (2016) LPELR-40011(SC), Solola v The State (2005) NWLR (Pt.937) 460.

3. Reception of Evidence of Children: The Tests
3.1 Children under 14 years of age must pass two tests before they can give unsworn evidence. The two tests are; (i) the test of intelligence; and (ii) the test of truth. Section 209(1) of the Evidence Act permits courts to receive the unsworn evidence of children, “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 test is that the court must be satisfied that the child is possessed of sufficient intelligence to justify the reception of the evidence. The second test is that the court must be satisfied that the child understands the duty of speaking the truth.

3.2 There is also the test of competence which is in fact the primary test and applies to all witnesses including children, irrespective of age. There is a presumption of competence of witnesses and all persons, including children, shall be competent to testify, unless they cannot understand the questions put to them or give rational answers to those questions. See section 175 of the Evidence Act. However, a trial Judge may conduct the test of competence on a child under 14 years old only where the circumstances of the case require.

3.3 The previous judicial authorities held that, under the provisions of the repealed Evidence Act, there were two tests; the test of competence and the oaths test. In Asuquo Okon v The State, Nnaemeka-Agu JSC said,
“It is my view that once a witness is a child, by the combined effect of Sections 154 and 182(1) and 182(2) of the Evidence Act, the first duty of the court is to determine first of all whether the child is sufficiently intelligent to understand the question he may be asked in the course of his testimony and to be able to answer rationally. This is tested be 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 that 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 the court, he understands the nature of an oath, he will of give evidence on oath.”

3.4 The Evidence Act 2011 has now abolished the oaths test. There is no longer a duty on courts to determine whether or not any child understands the nature of an oath since a child of 14 years old is deemed to understand the nature of an oath and permitted to give sworn evidence while all other children under 14 years of age can only give unsworn evidence. See section 209(2) of the Act. To reiterate, there are three tests involved in the reception of evidence of children; the test of intelligence and the test of truth which must always be administered to children under 14 years of age and the test of competence which may be administered to any child if required.

4. The Preliminary Inquiry
4.1 It is clear that a preliminary inquiry must be conducted before any child under 14 years old can give evidence. A few cases will demonstrate the practical application of the tests and the procedure for the inquiry. In Gambo Idi v The State, Ogunbiyi JSC said,
“The correct position of the law on proof as relating to a minor has been well stated and agreed upon by both counsels. In other words, where a minor is called upon as a witness to give evidence in a case (as it this case), the law under the express provision of Section 209(1) & (3) of the Evidence Act, 2011, stipulates that the Court, is duty bound to conduct a preliminary enquiry to ascertain whether or not the minor possessed sufficient intelligence to answer the questions that will be put to her, also that she understands the duty of speaking the truth.”

4.2 In Gambo Idi v The State, (supra) where the appellant was convicted of rape of a 7 year old girl under section 283 of the Penal Code. The record of the trial Judge read as follows; Yargaya: My first witness is a 10 years old girl, the victim. Court: I have asked the witness as to her age, her school, her family life, the existence of bad and the consequence of speaking the truth and I am satisfied that she can give evidence on oath.” On appeal counsel argued that the trial judge did not record the specific questions and answers of the preliminary enquiry. The Supreme Court affirmed the conviction and held that section 209(1) of the Evidence Act only required the trial Judge to form an opinion that the child was possessed of sufficient intelligence to justify the reception of her evidence and understood the duty of speaking the truth.

4.3 There is no specific procedure for the preliminary inquiry required to be conducted by the trial Judge for the test of competence under section 175 of the Evidence Act or the test of intelligence and the test of truth under section 209 of the Evidence Act. In fact only one preliminary inquiry is required to conduct both tests for children and the same set of questions can be asked to determine sufficiency of intelligence and the duty of speaking the truth. See, Agenu v The State (1992) NWLR (pt.256) 749 at 765.

4.4 It is important that a trial Judge must make a record of the inquiry to determine the sufficiency of intelligence of the child and whether or not the child understands the duty of speaking the truth. However, it is not a statutory requirement and a trial Judge is not bound to record the questions and answers put to the child and he is only required to state his conclusion and the reasons for his opinion. Therefore, failure to record the specific questions and answers put to the child witness will not be fatal to a reasonable opinion and conclusion. In Mbele v The State, appellant contended that the trial Judge ought to have recorded the specific questions and answers during the inquiry. Agbaje JSC said,
“Once there are clear indications in the record of proceedings that 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 investigation 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.”

4.5 In Mbele v The State, (supra) where the appellant was charged with the murder of his wife. The record of the court stated thus; “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 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.” On appeal the Supreme Court held that the trial Judge complied with the procedural requirements for the preliminary inquiry despite the fact that he failed to record the specific questions and answers put to the child. It is noteworthy that the record in this case clearly shows that the trial Judge conducted the three tests because the witness gave rational answers (the test of competence), the witness was sufficiently intelligent (the test of intelligence) and the witness understood the duty of speaking the truth (the test of truth).

4.6 In Dagayya v The State, the record showed thus; “Prosecutor: My first witness PW1 is an under aged girl of 14 years old. We are not sure whether she can give evidence on oath or not. Court: That being the case some questions will be put to the witness to find out if she can give evidence on oath or not.” The record showed further; “Court: What is your name? PW1: My name is Gambo Muhammed. I know God and I live at Ubba village. But I do not know what God will do to me if I tell lies. I do not know what an oath is. Court: That being the answer the witness gave in response to the questions asked by the court, I am satisfied that she cannot give evidence on oath since she does not appreciate the usefulness of taking an oath. She is therefore to give unsworn evidence.” The Supreme Court held that the trial Judge complied with the statutory procedural requirements. However, it is instructive that if this case were decided today applying the current provisions of section 209(1) of the Evidence Act 2011, the trial Judge would be obliged to direct the witness to be sworn and give evidence on oath since she was 14 years old. Furthermore, the trial Judge did not conduct the test of truth because it appears from the record that the witness did not appreciate the consequences of telling lies and did not understand the duty of speaking the truth.

4.7 Now compare the inquiry and record of the trial Judge in Sambo v The State. In that case, before taking the evidence of the complainant, the trial Judge examined the witness and made the following note in the record, “Muslim, a child of eleven years old who knows the nature of an oath but does not know the consequences of telling a lie, affirmed to speak the truth.” The Supreme Court acquitted the appellant and held that the examination and record did not satisfy the requirements of the Evidence Act. The record of the court only stated the conclusion but did not show that any inquiry was conducted to determine the competence of the child to give evidence. Wali JSC said,
“It will be desirable, if not necessary for the Judge after examining a child to write whether he is satisfied that the child:- (1) knows the nature of an oath; (2) the duty of telling the truth; (3) is possessed of intelligence to give rational answers to questions put to him, before taking his evidence under either section 182(1) or 182(2) of the Evidence Act.”
Here we see judicial confirmation of the requirement of the test of truth, the test of intelligence and the now abolished oath test. The witness in this case clearly failed the test of truth as she did not know the consequences of telling a lie. It is therefore surprising that the trial judge in this case, permitted the witness to give unsworn evidence even when she did not understand the duty of speaking the truth.

5. Evidential Value of Unsworn Evidence
5.1 The evidential value of the unsworn evidence of a child can be found in section 209(3) of the Evidence Act which states that, “A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of subsection (1) of this section and given on behalf of the prosecution is corroborated by some other material evidence in support thereof implicating the defendant.” Therefore, the law remains unchanged that the unsworn evidence of a child cannot support the conviction of a defendant for any offence without corroboration.

5.2 The evidence of a child erroneously taken on oath is not altogether inadmissible but it will be treated as unsworn evidence which must be corroborated before it can be acted upon. In Asuquo Okon v The State, Nnaemeka-Agu JSC said,
“From all these decisions, it appears to me to be the law that where, as in this case, an irregularity has occurred in the taking of the evidence of a child, the correct approach to such evidence is not to expunge it but to see whether it has been corroborated by other evidence implicating the defendant.”

6. Conclusion
6.1 The law on the corroboration of the evidence of children was revised by the Evidence Act 2011 and the oaths test was abolished but children who are 14 years old and above must now give sworn evidence on oath without any tests.

6.2 Children under 14 years of age must pass the tests of sufficiency of intelligence and the duty of speaking the truth before they can be permitted to give evidence.

6.3 Trial judges must conduct a preliminary inquiry of the children to determine if they have passed the tests but there is no specific procedure required for the conduct of the preliminary inquiry.

Jide Bodede. Author of Criminal Evidence in Nigeria. 2nd Ed. 2022