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 fiancé[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