Abstract

Much legal ink has flowed on the requirement of corroboration as a matter of law and practice on the prosecution of the offence of rape and other sexual offences.

Courts have followed divergent positions that first, an accused person cannot be convicted unless the evidence of the prosecutrix[1] is corroborated and that secondly, rape is not an offence in which corroboration is required by law and procedure. But the court should warn itself of the danger of convicting an accused on rape in uncorroborated evidence. However, the prevailing view among scholars prior to the amendment of Nigeria’s Evidence Act in 2011(hereinafter referred to as the act) is that they had greeted, with forceful disapprobation, the practice which required corroboration of the evidence of a rape victim. Nonetheless, that appears not to have helped issues even after the amendment of the evidence act. Therefore by reviewing Case law on the subject matter up to the present state of law, showing where the problem lies and offering a lasting solution, corroboration may or may not be required depending on the nature of the offence and circumstances of the case. Having in mind that the Prosecution must still prove his case beyond reasonable doubt.

1.0 Introduction

Several Reasons have propelled the drafters of the criminal code act applicable in the southern part of Nigeria and the Evidence act, 2011 that in some offences, it is unsafe to convict the defendant without a requirement of corroboration by the prosecution and as rightfully pointed out by a learned writer, some offences are, by virtue of their nature, committed in such a manner that it would be desirable to have at least some piece of evidence, apart from the evidence of the complaint[2]. Implicit in these offences are Rape and offences that are of sexual nature. At this juncture, it must be noted that for a better understanding of the topic, the two important sections of the criminal code act(hereinafter referred to as the code) viz sections 357 and 218 will be used juxtapositionally.

Firstly, it is imperative to note that Rape as defined in Section 357 of the code is an unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband, and under Section 218 of the code, Any person who has unlawful carnal knowledge of a girl under the age of thirteen years is guilty of a felony, and is liable to imprisonment for life, with or without caning. as expressly stated in section 218 of the code, a person cannot he convicted of either of the offences defined in this section upon the uncorroborated testimony of one witness. It needs to be stressed also that the Supreme Court per Bode Rhodes Vivour JSC has pointed out that Evidence of defilement as seen in section 218 of the code is the same as Rape except that in defilement as seen in section 218 , there is no requirement of Consent as a child cannot consent to sex[3].

Corroboration has been defined in Adonike v State[4] to mean confirming or giving support to a person, statement or faith. In R v Baskerville[5] Lord Reading CJ define what evidence constitutes corroborative evidence for the purpose of statutory and common law rules when he said: “We hold that evidence in corroborative must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus same whether the case falls within the rule of practice at common law or within that class of offence for which corroborative (Sic) is required by statute.

1.1. The Requirement of Corroboration on rape and the divergent positions

The law before the enactment of the new evidence act in third(3rd) June 2011 was that for sexual offences in chapter twenty one (21) of the code, the prosecution cannot succeed in its case if the requirement of corroboration was not satisfied, The repealed Evidence Act in section 179(5) provided thus: A person shall not be convicted of the offence mentioned in Sections 218, 221, 223, or 224 of the Code upon the uncorroborated testimony of one witness. This requirement was expunged in the new Evidence act following much critizms from writers and some jurists, but as we shall see, the issue appears not to have been totally solved. and This is a clearly a reform of the law but obviously not a repeal of the requirement of corroboration for sexual offences under Nigerian law.[6]

Even though it is a reform of the law, it needs to be stressed that in practice, attitude of the courts towards the subject matter has not been static even after the amendment of the act and most importantly the requirement of corroboration on sexual offences is still present in chapter 21 of the code. That having been stated, one wonders why the requirement was removed in the procedural law but not in the substantive law. But before addressing the issue, this article is conveniently divided into two, the first part dealt with highlighting the divergent decisions, and a rundown of both recent and past decioms on the subject with a view to ensuring a wide range and vivid understanding, the second and last part offered solutions and concluded the work.

In the recent court of appeal decision viz Lucky Jacob v Akpan[7] counsel to the appellant submitted that there was no rule of law requiring corroboration of the evidence of the prosecution before an accused could be convicted of the offence of rape. He noted, however, that as a matter of practice, courts, always, demand that the evidence of the prosecutrix must be corroborated in some material particular, citing Ibeakanma v Queen[8], IGP v Sumonu.[9]Surprisingly, the same counsel also came to the conclusion that there must be corroboration of any of the above ingredients in some material particular before an accused person could be convicted of rape, citing Upahar v State[10]

If this is so, one might be intrigued to ask, where the requirement of corroboration came from? Was collaboration expressly mentioned in section 357 of the code? Was it the intention of the lawmaker that collaboration must be required where the evidence of the prosecutrix is strong, compelling and irresistibly leading to the point that accused actually committed the offence?. If the lawmakers had wanted corroboration requirement to be met in section 357 of the code, they would have expressly provided for it as we have chapter 21 of the code. However the court in this case resolved thus: “We entertain no doubt that PW3’s unchallenged evidence, sufficiently, corroborated the evidence of the prosecutrix on the essential ingredients of the offence of rape.

The Court of Appeal, then cited a Supreme Court case, to wit- Habibu Musa v State[11] where the apex court noted, most perspicaciously, that:

…it has to be restated that in offences of a sexual nature it is very desirable that the evidence of the prosecutrix or complaint (sic, complainant) is buttressed by other pieces of evidence implicating the accused in a substantial way. Interestingly, the court of Appeal still pointed out in a subsequent paragraph that“

This does not detract from the fact that the court is not hindered from convicting an accused on the uncorroborated evidence of the complainant. In the use of corroborative evidence however little or slight it may be there is no rule as to what a corroborative piece of evidence is and how it can be applied. This is because the trial judge is best suited to make use of the evidence being well situated and having the opportunity and singular privilege of hearing firsthand the witnesses, considering their demeanor including that of the appellant. Also, where there was enough on ground from which the trial judge can reach a decision then there is no need to warn itself of the danger of acting on the uncorroborated evidence of the prosecutrix.”

Be that as it may, Professor Granville Williams has reasoned that a strict corroboration requirement should be imposed so that a person may not be convicted for any sexual offence without corroboration.[12]

Conversely in State v Ogwudiegwu[13], it was held that the offence of rape, in order to secure a conviction, corroboration of the evidence of the complaint implicating the accused is not essential, but a judge must warn himself of the risk of convicting on the uncorroborated evidence of the complaint. However, in Sambo v The State[14], the Supreme Court held to the contrary that it is the law that before the prosecution can secure the conviction of the offence of rape, the evidence of the prosecutrix must be corroborated in some material particular that sexual intercourse did take place, and that it was without her consent.[15]In Afor Lucky v State,[16] the Supreme court per Ngwuta JSC relying on Sunmonu v IG[17]; R v Graham[18]; R v Pitts[19]; Reckie v The Queen[20]; Ibeakanma v The Queen[21].” pointed out that it is not a rule of law but one of practice that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. In such a case, the trial Court is required to warn itself that it is unsafe to convict on the uncorroborated evidence of the prosecutrix and could convict after paying due attention to the warning if it is satisfied with the truth of her evidence. In Upahar & Anor v State [22]It was held that it Is a well established practice in England and in India that in cases of rape, the evidence of the complainant should be corroborated. Similarly, in Nigeria, a person cannot be convicted of rape of a girl under 14years of age upon the uncorroborated testimony of one witness. It is to be noted that cases decided before the enactment of the new evidence act, 2011 appear to have followed the old position in section 179(5) of the Evidence Act, Cap. 112 of the Laws of the Federation, 1990 and section 218 of the code ,irrespective of the fact that the requirement has been removed by the act, it is still part of our substantive law in that it has not been removed by code by virtue of chapter 21 in that evidence of minors must be corroborated. So that it cannot be stated that the requirement of corroboration is no longer required since sexual offences in relation to children are also rape.[23]

So also to say, there are circumstances where the only evidence available to the prosecutor is the Evidence of the prosecutrix who was actually raped together with the offender, the act provides for procedures with respect to where the prosecutrix is a minor and the prosecutor wants to call her to give testimony. Therefore with respect to testimony of a child in sexual offences, the provisions of the act requires that where the testimony of a minor who is below the age of fourteen is sworn, no corroboration is required, but it is required where it is unsworn[24]. This does not apply to section 357 of the code which has to do with adults.

The implication of this if given a literal interpretation, is that there can be no conviction for any of the offences without the requisite corroborative evidence required by the act with respect to unsworn evidence of a minor who can also depending on the circumstances of the case be the victim of the rape. In Olaleye v The State[25], the appellant was charged with an offence under section 282(1) (e) of the Penal Code which deals with defilement of a girl under 14 years. The only evidence against him was that of the complainant, a girl of 12-13 years of age, who had given unsworn evidence. It was held that in so far as the requirement was not met, the case of the prosecution must fail.

It is pertinent to note that under the Penal Code operative in northern Nigeria, there is no provision for corroboration, unlike the Criminal Code operative in southern Nigeria[26]. The Supreme Court however in Sambo v The State[27], per Omo JSC, treated the aforementioned section as curing the defect. In other words, because the Penal Code was silent on the issue, section 179(5) of the Evidence Act applies, so that corroboration is required. Olatawura JSC in explaining this requirement in this case held:

It is not disputed that at the time the offence was committed, the prosecutrix was only ten years old and therefore, she was a child. She cannot in law give her consent to sexual intercourse. Consequently, her evidence must be corroborated. The record shows that her evidence was not in conformity with section 182(1) of the Evidence act (now section 209 of the Evidence Act, 2011) as there was nothing to show how she was examined. The record merely shows a conclusion of what happened; it ought to have stated how the learned trial judge came to the conclusion that she knows the nature of an oath, but does not know the consequences of telling a lie. While the evidence of a child may be received, the court must be satisfied that the child is of sufficient intelligence, and understands the duty of speaking the truth. The section appears to be mandatory as to avoid a miscarriage of justice.

In Isa v The State[28], the point was appreciated by the Supreme Court where it stated that the law is settled that evidence of PW1 though a minor needed no corroboration since it has been sworn on oath, but the trial judge must first conduct proper investigation ensuring that the minor is intelligent enough to understand the proceeding and the implication of oath taking.[29]

2.0. Possible Solution: a repeal of the requirement of corroboration on sexual offences in the code.

So far, it has been pointed out that the issue bordering on the requirement of corroboration is not yet settled and that both the substantive and procedural law in this aspect appear to approach the issue of corroboration with respect to Adults and minors differently, having discussed the provisions, one may be left to wonder why Nigerian courts are generalizing the requirement. It is the author’s humble submission that the controversy surrounding the corroboration requirement will be resolved if the courts hold conclusively that for offences in sections 218, 221, 223 and 224 of the code, the judge must direct himself that corroboration is mandatory as a matter of law where the testimony of a minor in the case is not sworn, but not necessary where it is sworn as held by the Supreme Court in Isa v State[30] and that if the court fails to properly direct itself, the conviction of the accused will be set aside.

However, since section 357 of the code is silent on the issue, it should lie within the discretion of the court to make decisions where the evidence adduced is cogent, positive and irresistibly leading to the point that it was the accused who actually committed the offence charged against him.

It is opined that this would have a better outcome, rather than adopting a general view that rape requires corroboration, a view which may not wholly serve the ends of justice.

It is imperative to note that in Ogunbayo v. The State[31], the Supreme Court per Niki Tobi JSC (of blessed memory) stated that :

“I am not comfortable with the case law that corroboration is necessary to secure conviction of the offence of rape. This is because, I see no statute foisting on the prosecution, evidence of corroboration before convicting an accused. Section 350 of the Criminal Code Act, Cap. 77 Laws of the Federation of Nigeria, 1990, which is similar to the States Criminal Codes, does not provide that evidence of corroboration is necessary for conviction. And the Criminal Code specifically provides for offences where corroboration is necessary. Rape is not one of such. The above apart, neither the Evidence Act nor the Criminal Procedure Act or Code provides for corroboration in the offence of rape. I therefore ask, where did we get that law?

As a matter of requirement of law, since offences in sections 218, 221, 223 and 224 of the code requires corroboration; it is demanded of the court to satisfy itself that this requirement was met. It is the author’s opinion that the approach in England should be adopted in Nigeria and that if this approach is adopted, the criminal code should be amended.[32]

In England for instance where Nigeria copied the requirement of corroboration from, section 32(1) of the Criminal Justice Act 1994, has abolished the requirement that judges must warn juries of the dangers of convicting on the uncorroborated evidence of complaint in sexual cases or of accomplice. It is advised that this be adopted in Nigeria so as to allow for certainty, and victims of rape will be able to obtain justice.[33]

Cases like R v Makanjuola[34] and R v Easton[35], are very much apposite with respect to this proposal. In the instant cases, the English Court of Appeal, Criminal Division, held that it is a matter for the judge’s discretion what, if any, warning he considers appropriate in respect of such a witness. Whether he chooses to give a warning will depend on the circumstances of the case, the issues raised, the content and quality of the witness’s evidence, and whether there is an evidential basis for suggesting that the evidence of the witness may be unreliable. The above point indirectly suggests that a court of law can convict on an uncorroborated evidence since the court in this case noted the conditions he needs to warn himself of such[36].

It is further submitted that requiring corroboration in sexual offences may lead to hardship in cases where the only evidence available is the evidence of the prosecutrix. Justice cannot be said to have been done, where the courts are precluded as a matter of law and as a requirement of practice from convicting an accused person solely on the fact that the evidence of the prosecutrix must be corroborated.[37] The case of State v. Akingbade Gabriel[38] has appeared to be a curious case. here, the court found that the accused committed the offence of rape charged against him but nevertheless discharged and acquitted him. The court observed that there is a practice in Nigeria courts which has for all practical purposes ripened into law and that it is that there is a requirement for corroboration before the conviction of the accused even though the act does not call for corroboration. The court then noted that

“applyng this test, I find it difficult to discover the necessary corroborative evidence in this case. The girl’s prompt or complaint by her parents is certainly not corroborative evidence… In the result the prosecution must fail and I regrettably discharge and acquit the accused.

It is submitted with humility that having found initially that the accused actually committed the offence Charged against him, the court ought to have convicted the accused. How the Learned trial judge came looking for a needless corroboration of a state of facts that he already believed to be true borders on illogicality. Funmi Falana commenting on this case pointed out that the rule requiring the corroboration the victims evidence before aa accused can be convicted in rape cases and other sexual offences is unrealistic given the nature of the offence which is usually committed in private.[39]

CONCLUSION

In a summary, lawmakers should be proactive to amend the provisions of the code to include this suggested view, in clear and unambiguous terms, so as to toe the line of recent practices at international level. Helen Agu has opined that

The corroboration rule under the common law is now widely regarded as discredited and without any scientific basis. It was therefore vital that the common law practice should be abrogated, and that the statutory provisions, which are based on the same discredited assumption, be abolished consequentially. Assessments of credibility should be made not by assumption but by a full evaluation of the merits of the case.[40]

It is suggested once this standard of proof is attained, the requirement of corroboration can only occasion a clog to the wheel of justice. but so far as it has not yet been removed , generalizing the requirement as has been stated before is not the best approach, this view if adopted will help to streamline the decisions of the court so that law be certain.

[1]A female victim of a crime on whose behalf the state is prosecuting a suspect. Here, it means the rape victim. accessed 3 January 2020.

[2] Oji Nuel, ‘Solving The Jigsaw Puzzle: A critical analysis of the evidence of an accused implicating a co-accused under the Nigerian law of evidence’ [2017] (3) UNLSJ 149.

[3] Adonike v State (2015) AELR 5629 (SC). Take note of the recent changes in law with the enactment of the Violence against persons (prohibition) act, 2015 which under Section 1 which states that a “he or she” can commit rape, meaning that a man or a woman can now be liable for rape under the said act. Unlike what obtains in the code where the offender can only be male.

[4] Supra, note 4

[5] [1916-17] ALL ER reprints 38 at 43

[6] Helen Uche Agu, ‘The Requirement of Corroboration in the Prosecution of Sexual Offences in Nigeria: A repeal or a reform? [2011-2012] (10) Nig. J. R.

[7] (2014) LPELR -22740(CA)

[8] [1963] 2 SCNLR 191,194

[9] [1957] WRLR 23

[10] [2003] FWLR (Pt.1234) 393, in practice, most counsel to the defendant tend to rely on procedures and technicalities to frustrate the prosecution’s case.

[11] (2013) AELR 3628 (SC), herein lies a good example of a case decided after the amendment of the act.

[12] Corroboration: Sexual Cases (1962) Crim.LR662

[13] [1968] NMLR 117 (Ogwudiegwu)

[14] [1993] 6 NWLR (pt. 300) 399

[15] In Iko v State[2001] FWLR (pt.68) 1161, eight years after the decision in Sambo v state[1993] 6 NWLR (pt. 300) 399, it was held that it is not the rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. The proper direction is that it is not safe to convict on the uncorroborated evidence of the prosecutrix. The court may after paying due attention to the warning, nevertheless convict the accused person if it is satisfied with the truth of the evidence tendered before it. The apex court also held that the prosecutrix saying that an accused inserted his penis into her vagina is not ipsa facto sufficient proof of penetration in the absence of corroboration. This is in contradictory to the recent Supreme Court case of Chubuike Ofordike v the state(2019) LPELR – 46411 (SC) where a different constituted Supreme Court appeared to have followed the decision in Ogwudiegwu(n 14 ) without overulling its previous decisions that held in the contrary.

[16] [1970] NSCC 250

[17] [1957] WRMLR 23

[18] [1910] 4 CR App Rep 218

[19] [1914] 8 CR App Rep 65

[20] 14 WACA 501

[21] [1963] 2 SCNLR 191 at 195

[22] (2002) LPELR-5937(CA)

[23] Note that there are only two differences between sexual offences seen in chapter 30 and 21. First they appeared in different chapters of the code and secondly, offences in chapter 21 does not have consent as a requirement which if present, will negative responsibility for rape. therefore it is immaterial that consent was obtained. However, it is submitted that as have been held in Adonike v state(2015) AELR 5629 (SC) that both requires the same evidence and following the reasoning in Ogunbayo v state[2007] ALL FWLR (pt. 365) 408, that the word Rape is merely a legal parlance , the most and essential ingredient of Rape is penetration ,whether the victim is a minor or not. moreover , section 6 of the code provides that when the term carnal knowledge or the term carnal connection is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration. There is no doubts that the word carnal knowledge appeared in section 357 and chapter 21 of the code.

[24] See generally section 209 of the act. The question here is how does the courts balance this provision with that of chapter 21 of the code that requires corroboration?

[25] [1970] 1 ALL NLR 300

[26] Section 282 of the Penal Code applicable in the Northern Part of Nigeria.

[27] Supra, note 15

[28] (SC.35/2013) [2016] NGSC62 (29, January2016)

[29] Will the court follow the same position today in interpreting section 282 of the penal code, since the said requirement which was provided in the old evidence act has been removed?

[30] supra, note 29

[31] [2007] All FWLR (Pt. 365) 408

[32] And the requirement be removed entirely so that it will now depend soley on whether they are sworn or unsworn witnesses in section 209 of the act dealing with testimony of minors.

[33] As opined by a learned writer, the concept is a mechanical one which does not fit into the system of modern juristic practice. See Helen Uche Agu(Ibid)

[34] [1995] 3 ALL ER 730

[35] [1995] 3 ALL ER 730

[36] Ibid

[37] Notice the statement of Niki Tobi JSC in Ogunbayo(n 32)where the learned justice of the Supreme Court reasoned that; in all practically, what evidence of corroboration is really needed in the offence of Rape? In most cases, the offence is committed in private. although in some cases , the shout and call for assistance of the prosecutrix attract the public, that is not a regular phenomenon. After all, the prosecutrix herself may not like to be seen by the public when the act of rape is committed. She would rather prefer reporting the rape after the act. And so, it is difficult to secure corroboration of evidence of an eye witness.

[38] [1971] ALL NLR 508

[39] Fumni Falana, Cases and materials on women`s rights law (Ikeja:legal text publishing company Ltd 2008) 47

[40] Ibid 12.