LAW OF EVIDENCE (CORROBORATION)



INTRODUCTION
There is no law that says the plaintiff or the prosecution must bring a million  witnesses or evidence to court before he can succeed in his case. A court can convict on a single witness. A case is not decided by the number of witnesses, single credible convincing evidence is enough to convict in a case but there are some exceptions some of  which are found in Section 200 of evidence Act, 2011.

            The exceptions refer to by this mean the circumstance where corroboration will be required before any judge can decide his case. Although a judge can convict upon the uncorroborated evidence of an accomplice but he must warn himself before given such conviction, infact he is advised to seek corroborating evidence before convicting an accused because failure to do so can lead to the setting aside his judgment on appeal. The general rule is that corroboration of evidence is not required except where the law demands it.

THE CONCEPT OF CORROBORATION
            Corroboration evidence could be defined as one which confirms or strengthens in material particular a piece of evidence. If it is a criminal proceeding, it must incriminate the accused person and ground his conviction. In a civil proceedings, corroborate evidence strengthen the case of the plaintiff to secure judgment in his favour.
Nwadialo F. defined it in his book “Modern Nigerian law Evidence” as “a confirmation of a witness’s evidence by independent testimony”.  Also, the supreme court has defined it in special case of corroboration evidence of an accomplice as “evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused”[1] such evidence in criminal cases in general must therefore show or tend to show the commission of the offence and the accused person’s implication in it. This was the position of the court in Francis Okpanefe v. the state[2].
            The evidence may be oral, documentary or real. It need not be direct but may even be purely circumstantial[3]. Hence, a witness cannot corroborate himself it must however be independent. However section 237 of Evidence Act the former evidence of a witness on same fact may be proven to show constancy in the witness’s testimony. The evidence stated in section 237  should not be regarded as corroborative evidence rather an evidence to prove constancy in the testimony of the witness[4]. In the case of R v. Falayi[5], it was held that in criminal cases corroboration of evidence against an accused may be found in his conduct and behaviour before or at the trial. The West African Court of Appeal also held in R v Kumi[6],  that silence by an accused after accusation may constitute corroboration. The supreme court re-affirmed this principle in Gira v. the state[7], where it likened it with the rule of admission by accused maybe corroboration against him. For examples, where a co-accused gave evidence implicating an accused in the forgery of a document purporting to have been executed by thumb-print of an illiterate, a false verification of that document was held to be corroboration of the co-accused evidence in the Queen v. Abuah[8]. Moreso, in Efobi and Anor v. COP[9], where the accused persons were charged with offering bribe to a police officer, a tape recording made by a hidden tape recorder during the interview at which the bribe was offered was held as corroboration of the evidence of the police officer.
            For an evidence to amount to corroboration, the evidence need not only show that the offence was committed but also implicates the accused in it[10]. This is so because the fact of the commission of the offence itself is invariably readily established.

1.3       CASES IN WHICH CORROBORATION IS REQUIRED
            We have already seen the concept of corroboration, in this unit, we shall be discussing cases in which corroboration is required.
            In criminal cases, the rule as to corroboration applies only to witnesses for the prosecution[11]. Therefore, the issue of corroboration can only arise if the evidence needed to be corroborated is given by the prosecution and not the defence.

EVIDENCE OF ACCOMPLICE
Section 198 (1) of Evidence Act, provides that “an accomplice shall be a competent witness against a defendant, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice”.
            The question now is who is an accomplice? The Act did not define who an accomplice is.  It therefore follows that whether a person is an accomplice depends on the circumstance(s) of a particular case. In Idahosa and ors v. the Queen[12], the Supreme Court adopted the definition in Halsbury Laws of England[13] to the effect that “persons are accomplices who are participes criminis in respect of the actual crime charged whether as principals or accessories before or after fact in the case of felonies and misdemeanours”.
            Persons who are to be regarded as participants or parties to a crime are classified in section 7 of the Criminal Code (principal offenders). Here, a person who aids or able an offender to accomplish a crime but with an intent different (without mens rea) from that of the offender is not, by virtue of this provision a party to the offence and consequently not an accomplice[14].
            A witness may rank as an accomplice on the ground that he assisted the culprit to escape punishment and was an accessory after the fact in that way[15]. However, a person may be connected with the commission of an offence by being an agent provocateur to it, that is, one usually a police officer secretly engaged as a spy to join in the perpetration of a crime by inducing or inciting offender(s) to commit it. The real purpose being to procure evidence against the offender(s) through him. Such a person is not an accomplice[16].
            Furthermore, a person who lacks the capacity for criminal responsibility cannot be an accomplice. It had been held that a child under the age of criminal responsibility who assists in a crime is not an accomplice[17]. Also, it was held in Osidola v. Commissioner of police[18], that the giver of a bribe may be a victim or an accomplice depending on the circumstances of the case.
            Section 198 of the Evidence Act, does not really make corroboration of an accomplice evidence indispensable for conviction. The accomplice is a competent witness against an accused person and a conviction is not illegal because it proceeds upon the uncorroborated testimony of an accomplice[19]. The statutory warning is however imperative. It is not safe to convict on the evidence of an accomplice unless such evidence has been corroborated in a material particular. The reason is because an accomplice, through his complicity in a crime is a “corrupt person” who may invent an offence and accuse someone of committing it or be falsely accusing someone of an offence that was committed[20].
            It suffices to note in this juncture that before corroboration is looked for the evidence of the accomplice must be believed on its own to begin with; if it is not then the evidence of the honest witness does not help[21]. The position is that the trial judge must ask himself whether or not he believes the accomplice. If the judge believes him, he must warn himself that it is unsafe to convict on his evidence alone: he then looks for some additional evidence (not that of another accomplice) which corroborates the accomplice story[22]. In R v. Modam[23], the court held that the corroboration must be by an independent witness and not by another accomplice. Where a judge fails to give the required  warning, a conviction will be quashed unless it appears to the appeal court that no substantial miscarriage of justice has occurred[24].
            As we have discussed earlier, Section 200 of the Evidence Act, which provides that no particular number of witnesses, shall, in any case, be required for the proof of any. Thus, the section and also the Act provides for the exceptions of this general rule, which are as follows:
(i)                Evidence of co-accused: This type of evidence is provided under section 198(2) of the Evidence Act, which provides as follows “where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused, the accused who gives such evidence shall not be considered an accomplice” until the decision of the supreme court in Ukut and others v. The State[25] and subsequently in Malayi and Sokoto v. The State[26], the interpretations of this subsection in earlier judicial decision left some doubt as to whether or not the evidence of a co-accused against another accused required corroboration. The correct position, following by these are; firstly that subsection (2) of section 198 cannot be read independently but must be read with section 1. Also, the person who fall within section 198 (2) are only those being tried jointly and not witness called by the prosecution, even if such a witness was originally one of those charged jointly but pleaded guilty and then called by the prosecution as a witness. The section only means that a defendant who, testifying on his own behalf in a joint trial incriminates a co-defendant shall not be considered to be an accomplice for the purpose of the statutory duty imposed on the court by section 198 (1) to warn itself  that it is unsafe to convict solely on the uncorroborated evidence of an accomplice.
(ii)             Treason and Treasonable Offences: Section 200 of the Evidence Act, as earlier mention provides treason and treasonable offences as an exception to the general rule that no particular number of witnesses shall, in any be required for the proof of any fact, under section 201 (1). This section 201 (1) Evidence  Act, which provides “A person charged with treason or with any of the felonies mentioned in sections 40, 41 and 42 of the Criminal Code Act cannot be convicted, except on his own plea of guilty or on the evidence in open court of two witnesses at least to one overt act or the kind of treason or felony alleged, or the evidence of one witness to one overt act and one other witness to another overt act of the same kind of reason of felony”. The section 201 (1) provides for corroboration evidence in treason and treasonable offences, and also an exception (derogation) to that effect. Thus, there would be no need for corroboration if the accused pleads guilty and also in subsection (2), if “the overt act of treason alleged is the killing of the president or a direct attempt to endanger the life or injure the person of the president.
(iii)           Evidence on Charge of Perjury: By virtue section 202 of the Evidence Act. “A person shall not be convicted of committing perjury or for counseling or procuring the commission of perjury, upon the uncorroborated testimony of one witness contradicting the oath on which perjury is assigned, unless circumstance are proved which corroborated such witness”. This is also provided in section 119 of the criminal code.
(iv)           Exceeding speed limit: Section 203 (1) provides that “A person charged under any road traffic legislation with driving at a speed higher than the allowed maximum shall not be convicted solely on the evidence of one witness that in the opinion of that witness he was driving at such speed”. The exception to this is evidence given by a duly authorized officer of the relevant authority who was at the time of the commission of the offence, recorded the speed of the vehicle with any mechanical, electronical or other device. Subsection (2) provides for the meaning or people meant by “relevant authority” under subsection (1).
(v)              Sedition: section 204 of the Evidence Act, provides that “A person shall not be convicted of the offence of uttering seditions words under section 51 (1) (b) of the Criminal Code Act” upon the uncorroborated testimony of one witness.
(vi)           Sexual Offences: A person shall not be convicted of the offences in sections 218[27], 221,[28] 223[29] and 224[30] of the Criminal Code upon the uncorroborated testimony of one witness.
(vii)         Unsworn Evidence of Children: A child is a competent witness unless the Court considers that by reason of his tender years he is prevented from understanding the questions before him or from giving rational answers to those questions or to immature person to appreciate the significance of taking an oath which is a preliminary prerequisite to giving evidence. Section 209 (1) of the evidence Act provides that “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, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth” subsection (3) states that a person shall not be liable to conviction for an offence unless such evidence given by child is corroborated by some other material evidence thereof. It suffices to note here that evidence of a child cannot amount to corroboration of the unsworn testimony of another child[31]. But the sworn evidence of a child may corroborate the unsworn testimony of another child, the Court should warn himself of the risk involved.
(viii)      Breach of promise of marriage: All the cases in which corroboration is needed so far considered are criminal matters. Action for breach of promise of marriage is the only civil matter which the Act made provision for corroboration. Section 197 of the Evidence Act, no plaintiff in any such action can recover a verdict, unless his or her testimony is corroborated by some material evidence in support of the promise. The section further states that the fact the defendant did not answer letters affirming that he had promised to marry the plaintiff is no such corroboration.
Corroboration in this section may be found in the defendant’s conduct towards the plaintiff such as making gifts to her or referring to her as his fiancĂ©[32]. Also, letters which may be interpreted as admission[33].
Nonetheless, there are other cases where corroboration is required as a matter of practice, they are:
(i)                Matrimonial Causes: Although this is not a rule of law, rather a rule of practice, that the courts are reluctant to grant divorce on the sole and unsupported testimony of the petition[34]. As the supreme court put it in Etim v. Etim[35], that “The requirement of corroboration of cruelty in a divorce case is merely a matter of practice and not a rule of law”.
(ii)             Witness with interests to serve in criminal cases: Tainted witness: This is a prosecution witness, who in the strict sense may not be an accomplice because he is not a participes criminis in respect of actual crime charged but may be interested in it in such a way that the court out to be very wary or sceptical in reaching a decision on the basis of his evidence alone. A tainted witness was best described by the Supreme Court in Idahosa and other v. The State[36], where the court held that since the (tainted) witnesses testifying against the appellants were also charged separately for the same murder of the deceased they are interested persons who might have some purposes of their own to serve and the court should always be wary in relying on their evidence solely to give judgment[37].
(iii)           Conviction based solely on deposition of an absent witness: In certain circumstances, the record of evidence of a witness in former proceedings may be used to prove the facts contained therein in subsequent proceedings. Where the only evidence  for conviction is such a record, the court may look for corroboration of it. In Doka and others v. The State[38], in the admission in evidence of the deposition absent witness under section 239 (1) of the Criminal Procedure Code of Northern Nigeria which provides for such admission. The trial judge held inter alia, since he cannot see the deponent’s (absent witness) demeanour, he could not convict on his deposition without being corroborated.
(iv)           Confessional statements by accused:  a free and voluntary confession which is positive and is properly proved made by a person alone even without corroboration can convict person so long as the court is satisfied of the truth. But whenever the person retracts from this confession or whenever there is a slight change of testimony, then there should be corroboration.
(v)              Evidence of Agent Provocation: Although an agent provocateur is not an accomplice, the courts as a matter of practice look for corroboration of evidence by him. This was the ratio of the court in the Queen v. Israel David and two others[39].

CONCLUSION
           Corroboration generally cuts a niche for itself, it is used both in criminal and civil cases. In law, corroboration, though popular yet controversial virtually under all legal system. This is due to the influence and interpretation of the provisions of the evidence Act and Criminal and penal Codes (no corroboration) by Judges. In any case in which corroboration is required as a matter of law, that is, under the Act or any other statute, conviction recorded without the requisite corroborative evidence will be quashed on appeal[40]. Also, where matters found by the judge as corroboration are in fact not and there is actually no corroboration at all, a conviction may also be quashed[41]. Where corroboration is required as a matter of practices an accused may be convicted without any corroborative evidence, provided that the court warned itself of the danger of convicting in a circumstance. It is desirable that the warning should be given[42], although the Appeal Court will not interfere if there be clear and convincing evidence apart from the inculpatory evidence requiring corroboration, to such an extent that it is satisfied that no miscarriage of justice has arisen by reason of the failure of the trial court to warn itself[43].


[1] Omisade v. the Queen (1964) 1 All N.L.R 233.
[2] (1969) 1All N.L.R 420.
[3] Okachi v. state (1975), Mbele v. state (1990) 4 NWLR 484.
[4] Breff Mclean 2nd Ed. Para 1074, R v. White head (1929) 1 RB 99.
[5] (1949) 12 W.A.C.A 492, Oke v. the Republic (1964) N.M.L.R 69.
[6] (1949) 12 WACA 338 Utteh v. the state (1992) 2 NWLR 257, per Nnaemeka Agu JSC
[7] (1996) 4 SCNJ 95 at 106 per Adio
[8] (1961) 1 All NLR 635
[9] (1963) NNLR 1
[10] The Queen v. Ekpata (1957) 2 FSC 1; R v. Grillopouloups and ors (1953) 20 N.L.R 114; Idumo v. IGP (1957) 2 FSC 2
[11]Davics v. DPP (1954) AC 378 at 401
[12] (1965) NMLR
[13] Vol. 10 3rd  Edition 549 at 844
[14] Ededey v. the state (1972) 1 All NLR (part 1) 15.
[15] Ekpo and Anor v. the state (1964) 1 All NLR 375.
[16] R v. mullins (1848) 3 cox 526: sneeddon v. Stephenson (1967) crim. L.R. 476
[17] R v. cratchley (1913) 9 cr. App. R. 232
[18] (1958) N.R.N.LR 42
[19] The Queen v. Ezekpe (1962) All N.L.R 637
[20] Bello v. the state (1967) N.M.L.R. 1
[21] R v. Grilliopoulas (1953) 20 N.L.R. 114
[22] Omisade v. the Queen (1964) 1 All N.L.R 233
[23] (1938) 4 WACA 39
[24] R v. Ezechi (1962) 1 All NLR 113
[25] (1965) 1 All N.L.R 306
[26] (1968) 1 All NLR 116
[27] Defilement of girls under thirteen
[28] Defilement of girls under sixteen and above thirteen, and of idiots
[29] Procuration 
[30] Procuring defilement of woman
[31] Jos Native  Authority police v.  Allah Gani (1968) N.M.L.R 8
[32] Wilcox v. Godfrey (1872) 26 L.T. 481
[33] Hanson v.  Dixon (1906) 23 T.L.R 56
[34] Sowande v. sowande (1960) L.L.R 58
[35] (1968) N.M.LR 35
[36] Supra.
[37] Enachoro v. the Queen (1965) 1 All NLR 125
[38] (1968) N.M.L.R 487
[39] (1960) W.N.L.R 170 at 174
[40] The Queen v. Okagbue (1958) 3 F.S.C. 27
[41] R v. madam (1938) 4 WACA 39
[42] R v. Prater 44 CAR. 83
[43] Mumuni and Ors v. the state (1973) NSCC
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