Introduction
Can your husband be forced to testify against you in court?
Can your wife be compelled to give evidence against you?
Many people assume that marriage automatically prevents one spouse from giving evidence against the other. That is not an entirely accurate statement of Nigerian law.
The Evidence Act 2011, as amended, makes important distinctions between the competence and compellability of spouses as witnesses and the protection given to communications made between spouses during marriage.
The answer can therefore depend on the type of proceeding, the offence involved and, importantly, whether the evidence concerns a communication made by one spouse to the other during the marriage.
Can a husband or wife testify against the other?
The short answer is: sometimes.
Section 182 of the Evidence Act) sets out circumstances in which a husband or wife may be a competent and compellable witness against the other.
Section 182(1) provides:
“When a person is charged-
(a) with an offence under sections 217, 218, 219, 221, 222, 223, 224, 225, 226, 231, 300, 301, 340, 341, 357 to 362, 369, 370 or 371 of the criminal Code;
(b) subject to section 36 of the Criminal Code with an offence against the property of his wife or her husband; or
(c) with inflicting violence on his wife or her husband, the wife or husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of the person charged.”
The effect is that in the categories of cases specified by the provision, the spouse can be compelled to testify without the consent of the spouse who is being prosecuted.
These include certain specified offences, offences against the property of the spouse, and cases involving violence against the spouse.
What happens in other criminal cases?
Section 182(2) deals with criminal offences outside those specified in section 182(1).
It provides:
“When a person is charged with an offence other than one of those mentioned in subsection (1) of this section, the husband or wife of such person is a competent and compellable witness but only upon the application of the person charged.”
This is significant.
It means that where the offence does not fall within section 182(1), the spouse is not simply treated as an ordinary compellable witness for the prosecution.
The person charged may apply for his or her spouse to testify.
But there is an important protection for marital communications
Even where a spouse is a competent and compellable witness, section 182(3) contains an important protection.
It provides:
“Nothing in this section shall make a husband compellable to disclose any communication made to him by his wife during the marriage or a wife compellable to disclose any communication made to her by her husband during the marriage.”
This is a crucial distinction.
The law may permit a spouse to testify in particular circumstances, but that does not automatically mean the spouse can be compelled to reveal private communications made by the other spouse during the marriage.
Section 187 provides a separate protection
Section 187 of the Evidence Act provides:
“No husband or wife shall be compelled to disclose any communication made to him or her during marriage by any person to whom he or she is or has been married nor shall he or she be permitted to disclose any such communication, unless the person who made it, or that person’s representative in interest, consents, except in suits between married persons, or proceeding in which one married person is prosecuted for an offence specified in section 182 (1) of this Act.”
This provision is particularly important when dealing with private communications between spouses.
The protection applies to communications made during the marriage.
The person who made the communication generally controls whether it may be disclosed, because the section requires the consent of the person who made it or that person’s representative in interest.
So, can your spouse testify against you?
The answer cannot simply be “yes” or “no.”
It depends on the circumstances.
For example, where a husband is charged with an offence covered by section 182(1), his wife may be a competent and compellable witness for the prosecution or defence without his consent.
But section 182(3)expressly preserves the protection against compelling her to disclose a communication made to her by her husband during the marriage.
This means that being compellable as a witness does not necessarily mean being compellable to reveal marital communications.
That distinction is one of the most important points in this area of Nigerian evidence law.
A murder case illustrates the point
The Court of Appeal considered this issue in AGWU v. STATE (2021) LPELR-54725(CA) (Pp. 56-60, Paras. B-D).
The appellant had objected to his wife’s testimony in a murder trial, relying on section 182 of the Evidence Act.
The Court examined the statutory provisions and noted that murder was not among the offences specifically listed in section 182(1).
The Court explained:
“I have taken the trouble of going through the said Sections and the offence of murder in not included in the enumerated Sections. The offence of murder under the Criminal Code of the Federation is punishable under Section 319(1) thereof; just as the same offence is punishable under Section 319(1) of the Criminal Code of Abia State.”
Per AYOBODE OLUJIMI LOKULO-SODIPE, JCA.
Applying the statutory provisions, the Court concluded:
“Guided by the canons of interpretation reproduced hereinbefore, I am therefore of the considered view that it is clear as crystal from the provisions of Sections 182 and 258 of the Evidence Act set out hereinbefore, that a husband and wife of a marriage of whatever form and which is duly recognised by the Marriage Act, cannot testify against his or her spouse for as long as the marriage subsists in a trial for the offence of murder as in the instant case except the Appellant being the person charged, has applied for his wife to testify in the case.”
Per AYOBODE OLUJIMI LOKULO-SODIPE, JCA.
This is an important authority because it demonstrates why the actual wording of the Evidence Act matters.
The common statement that “a wife can always testify against her husband” is therefore not an accurate statement of the law.
What if the spouse personally witnessed the event?
This is where we must distinguish between communication and personal knowledge or observation.
Suppose a wife personally sees her husband commit an act.
That is different from the husband telling his wife about the act.
Section 182(3)specifically refers to a communication made during the marriage.
Likewise, section 187deals with the disclosure of communications made during marriage.
Therefore, the mere fact that a spouse has personal knowledge of an event does not automatically mean that the information is a privileged marital communication.
The precise evidential issue must be identified.
What counts as a husband or wife under the Evidence Act?
The Evidence Act also defines the relevant relationship.
Section 258 provides, in part, that:
“wife and husband” means respectively the wife and husband of a marriage validly contracted under the Marriage Act, or under Islamic law or a Customary law applicable in Nigeria, and includes any marriage recognised as valid under the Marriage Act.
This is important because the statutory provisions are not based simply on the fact that two people describe themselves socially as husband and wife.
The nature and validity of the marriage matter.
The Court of Appeal considered this issue in Agwu v. State (supra) when interpreting sections 182 and 258.
The Court recognised that the statutory protection applies to a marriage duly recognised under the relevant law.
What if the offence is against the spouse?
Section 182(1)(b)specifically addresses offences against the property of a spouse.
Where a person is charged, subject to the statutory qualification, with an offence against the property of his wife or her husband, the spouse is a competent and compellable witness for the prosecution or defence without the consent of the person charged.
This is one of the situations in which the law expressly allows the spouse to be compelled to testify.
What if the spouse has suffered violence?
Section 182(1)(c)similarly provides for cases involving violence against the spouse.
Where a person is charged with inflicting violence on his wife or her husband, the spouse is a competent and compellable witness for the prosecution or defence without the consent of the person charged.
This reflects an important policy consideration.
The law does not allow the marital relationship to become an automatic shield against testimony in circumstances where the spouse is the alleged victim of violence.
What if it is an offence that is not listed?
Section 182(2) becomes relevant.
For offences outside the categories specified in section 182(1), the husband or wife remains a competent and compellable witness, but only upon the application of the person charged.
The distinction between subsections (1)and (2)is therefore significant.
The statutory scheme does not treat every criminal charge involving a married person in exactly the same way.
The law also protects the spouse from being forced to reveal marital communications
Even where the spouse is otherwise required to testify, section 182(3)must not be overlooked.
It expressly provides that nothing in section 182 makes a husband compellable to disclose a communication made to him by his wife during the marriage or a wife compellable to disclose a communication made to her by her husband during the marriage.
This means that spousal compellability and marital communication privilege are separate questions.
A court considering evidence from a spouse must therefore examine not only whether the spouse is competent or compellable, but also whether the particular evidence sought consists of a protected communication.
What about civil proceedings between husband and wife?
Section 187 contains an express exception for suits between married persons.
Therefore, a spouse cannot simply invoke section 187without considering whether the proceedings fall within this exception.
This is particularly relevant in matrimonial disputes and other litigation in which husband and wife are directly opposing parties.
The fact that the communication was made during marriage does not, by itself, end the inquiry.
What about criminal proceedings involving specified offences?
Section 187 also contains an exception where one married person is prosecuted for an offence specified in section 182(1).
This means that sections 182 and 187 must be read together.
It would be misleading to consider section 187 in isolation and conclude that every communication between spouses is absolutely protected regardless of the nature of the proceedings.
The statutory exceptions matter.
Does the protection mean spouses can never testify against each other?
No.
That is too broad.
The Evidence Act creates a statutory framework under which spouses can, in certain circumstances, be competent and compellable witnesses against each other.
At the same time, it protects marital communications in specific circumstances.
The better question is therefore:
What is the proceeding, what is the offence, is the spouse competent and compellable, and is the evidence sought to be disclosed a communication made during the marriage?
Those questions are much more useful than simply asking whether spouses can testify against each other.
The position under the Administration of Criminal Justice Act
The Administration of Criminal Justice Act 2015 also addresses the issue.
Section 192provides:
“In any proceeding taken under the provisions of section 191 of this Act the husband and wife shall be competent and compellable witnesses in accordance with the provisions of the Evidence Act, 2011.”
The provision therefore reinforces the application of the Evidence Act’s rules concerning spouses in the relevant proceedings.
Why does Nigerian law protect marital communications?
There is an obvious policy reason for protecting communications between spouses.
Marriage is ordinarily a relationship in which spouses should be able to communicate privately and candidly.
If every private communication between spouses could automatically be demanded in court, the law could undermine the confidence that ordinarily exists within marriage.
At the same time, the law recognises that the interests of justice sometimes require a spouse to testify.
That is why the Evidence Act does not create an absolute rule against spouses giving evidence against each other.
Instead, it establishes specific rules and exceptions.
What you should not assume
There are several common statements about spousal evidence that should be treated with caution.
“A wife can never testify against her husband.”
Not correct.
“A husband can always be forced to testify against his wife.”
Also not correct.
“Anything you tell your spouse is absolutely privileged.”
Again, not correct.
The correct position requires the relevant provisions of the Evidence Act to be considered together.
Conclusion
The law governing evidence between husband and wife in Nigeria is more nuanced than the popular belief that marriage automatically prevents spouses from testifying against one another.
Sections 182 and 187 of the Evidence Act 2011, as amended, establish important protections and exceptions.
The Court of Appeal’s decision in Agwu v. State (2021) LPELR-54725(CA) (Pp. 56-60, Paras. B-D) demonstrates the importance of reading the statutory provisions carefully rather than relying on broad statements about spouses and evidence.
Ultimately, whether a spouse can be compelled to testify, and what exactly the spouse can be compelled to disclose, depends on the nature of the proceeding, the offence involved, the status of the marriage and the nature of the evidence being sought.
Disclaimer
This article is provided for general information and educational purposes only and does not constitute legal advice. The application of the law depends on the facts and circumstances of each case. For advice on a specific matter, consult a qualified Nigerian legal practitioner.
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