PROBONO LEGAL ADVICE ON WHETHER A SPOUSE CAN TESTIFY AGAINST HIS OR HER SPOUSE IN COURT IN A RAPE CASE
Dear Probono Partner,
I am Mrs.Stella Udoh married to Mr Stanley Udoh. We have been married for three years without kids. My husband is presently facing trial at the Ikeja High court for the rape of a fourteen (14) year old Maryam Adebayo. The truth is that I actually stumbled upon him during the act. I was on my way home from the market that fateful day when I heard muffled screams from what appeared to be a female’s voice. The sound was coming from an abandoned building adjacent our house. Curiosity got the better of me and I tiptoed in the direction of the sound. I was mortified to see my own husband forcefully bearing his weight down on a very young girl, who was struggling to let go of his grip. He had one of his hands firmly placed over the girl’s mouth. Quite naturally, he over-powered her and had his way.
In a daze, I tiptoed out of the place and headed home. I became very scared of the man I married. Quickly, I began a plot to secretly leave him as well as report what I‘d just witnessed to the police. However, before I could even think, the young girl and her mother with two police men stormed into our house at about 8:00pm that evening and arrested my husband much to my relief.
I intend to give evidence against him at the trial.
However, I remember once hearing a lawyer say that the spouse of an accused witness cannot give evidence for the accused person. Is this really true, please I need your Advice?
Dear Mrs Udoh,
I can imagine the trauma you are going through having witnessed such a heinous crime as rape. Moreover, considering that the rapist is your own husband! It is indeed very scary to realize that you lived with a man you never imagined possessed the basest of tendencies.
As to your question, of course, you can give and must give evidence for the prosecution in the interest of justice. Section 179 of the Evidence Act provides thus “subject to this part, in criminal cases, the defendant, his wife or her husband as the case may be, or any person jointly charged with such defendant and tried at the same time and the wife or husband of the person so jointly charged, is competent to testify.”
From the above provision, a spouse is a competent witness in criminal proceedings. However, the question is whether a spouse can be compelled to testify for or against the defendant in that criminal proceeding.
Generally, a spouse of a valid marriage is a competent witness but not a compellable witness for the prosecution where one of them is standing trial. The general rule is that every compellable witness is a competent witness but not all competent witnesses are compellable.
However, there are certain circumstances which make a spouse a competent and compellable witness for the prosecution or defence without consent of the defendant. These circumstances are:
- Where the husband is charged with indecent practice with another male
- Where the husband is charged with the defilement of young girls under 13 years
- Where the husband is charged with:
- Indecent act
- Indecent assault on female
- Abduction of a girl under 18 with intent to have carnal knowledge etc.
You can see from the above that your husband’s alleged crime falls under the circumstances where you can testify against him. Please go ahead and get justice for that under aged little girl.
NOTE: A compellable witness is one the court can force to come to court and testify against another person.
MOLINDO MARY NKOYO (PROBONO PARTNER)