Who is not an accomplice — with corroboration rules and case critiques

(a) Mere knowledge of an offence

A person who only knows an offence will be committed but does nothing more is not an accomplice. In R
v. Okoye, the accused told a police officer he intended to commit burglary and even begged the officer
to tell colleagues not to intervene. The court still held the officer was not an accomplice. As Hallinan J.
explained, that officer could not be convicted of aiding, abetting, counselling or procuring the burglary:
mere knowledge (and even failure to stop it) is not enough to make someone an accomplice.

Key point: Complicity requires participation by assistance or encouragement. Passive awareness,

without more, does not qualify.

(b) Agent provocateur

Definition: An agent provocateur is someone who entices another to commit an offence and then
informs so the person can be apprehended.Baseline rule in your text: The evidence of an agent
provocateur is treated with great caution and should not be acted on unless corroborated. The policy
concern is reliability: the very method of obtaining the evidence creates risks of unfairness and
fabrication. Aguda’s distinction (and the critique):

If the agent positively incites or provokes and then joins in the crime, Aguda says corroboration is
required.

If the agent merely joins to facilitate arrest after others have already clearly resolved to offend, Aguda
says public order and safety justify admitting the evidence without corroboration.

The text rejects this distinction as unfounded and internally inconsistent: whether the agent “ignites”
the plan or merely “facilitates” it after intention forms, the same caution problem remains.

Case notes and position taken:

R v. Israel David & Ors: treated as requiring corroboration of agent-provocateur evidence. The text
approves this approach.

R v. Gilbert Fanugbo (unreported): said corroboration was not required for an agent provocateur. The
text calls this bad law because the police and their aides there should themselves have been treated as
agent provocateurs whose evidence needed corroboration.
Resulting guidance: Courts should warn themselves that it is unsafe to convict on the uncorroborated
evidence of an agent provocateur; there must be independent material evidence implicating the
accused in some particular.

(c) Mere witnesses to an offence

Someone who simply witnesses the offence, without more, is not an accomplice.

R v. Udo Akpan Essien Ukut & Ors: authority for the proposition that a special accomplice warning is not
required for evidence of persons who merely witness a crime in circumstances like those in that case.

Borderline scenario and critique — Imok Onyikoro & Ors v. R

Facts (kept concise but complete): The appellants belonged to a society whose stated purpose
(announced by the first appellant) was to try thieves in the first appellant’s house; a “thief” would be
asked to pay money and, if he failed, he would be killed. The Crown’s case rested entirely on one
witness who was a member of the society when the crime occurred and at trial. He did not participate in
the actual killing but stood outside and watched through the door. The next day he was fined £5 by the
society for failing to help in the killing. The court held he was not an accomplice and that his evidence
did not require corroboration.b

Critique in your text: That decision is questionable. Unlike a passer-by in a one-off crime (as in Ukut), this
witness was a member of a society whose common intention included killing thieves who refused to
pay. His presence while the killing took place, coupled with his membership and the subsequent fine for
not assisting, should be treated as encouragement. On that basis, he ought to have been regarded as an
accomplice whose evidence required corroboration.

Support from a dissent: The text aligns with Mbanefo Ag. J.S.C.’s dissent in R v. Omisade & Ors: even if
the witness is not an accomplice “in the strict sense,” his evidence is of a type on which it would be
unsafe to act without corroboration.

Aguda’s view referenced: The text notes Aguda’s criticism that the majority in Onyikoro sits uneasily
with general principles; the presence of such a witness should be seen as encouragement to those
committing the crime.

Takeaway: Mere witnessing ≠ accomplice. But presence plus group membership and common unlawful
purpose can cross the line into accomplice status (or, at minimum, evidence requiring corroboration as a
matter of prudence).

(d) Victims of the offence

A victim/complainant (e.g., in rape) is not an accomplice. However, courts should proceed with caution
before convicting on uncorroborated victim testimony—especially in sexual cases—recognizing the
settled practice (prudence), even though it is not a rigid rule of law.

Ahmed v. Nigerian Army

Context: A corporal was tried by a court martial for defilement under s. 78 Armed Forces Act. The charge
period was later amended (from Feb–Mar 2002 to Jan 2004–Mar 2005).

Evidence:

PW2 (the prosecutrix), a minor, was sworn (having shown understanding of the oath). She testified to
penetrative acts on more than three occasions and even described the colour of the appellant’s penis.
She also stated he had birth marks on the left thigh.

PW5 (female medical doctor) examined both parties: confirmed the appellant had birth marks (but
noted them on the right thigh), stated the prosecutrix had lost her virginity, and because the
examination occurred >48 hours after the alleged acts, she could not confirm recent intercourse.

Other testimony described the appellant’s habit of sending the girl on errands and that the period of
abuse coincided with times his wife was often away.

The appellant testified, denied the acts, but under cross-examination admitted having pubic birth marks
after initially denying it.

Outcome: Convicted at trial; appeal dismissed by the Court of Appeal.

Holdings (summarized):

1. In criminal trials, corroboration is only required where the law demands it. In rape/sexual cases,
corroboration is not a rule of law, but as a matter of practice, the evidence of the complainant ought to
be strengthened by other implicating evidence.

2. Corroborative evidence for rape must be cogent, compelling, unequivocal, independent, and must
connect the accused to the offence in a material particular.

L3. The quantum/quality of corroboration when the prosecutrix is a minor who is sworn differs from that
required where the child is unsworn; a sworn minor’s testimony stands on a stronger footing.

Posu v. State
Principles affirmed:

1. Corroboration in rape means evidence confirming the prosecutrix.

2. It is not required as a matter of law; its nature depends on the facts

3. Typical corroboration when rape is denied includes: medical evidence of injuries consistent with a
struggle, semen stains on clothing or at the scene, or other independent links implicating the accused.

Ochemaje v. State

Caution about interested witnesses: Close relations (e.g., children of a deceased) are not automatically
disbelieved; if their evidence is credible, the court may accept it. But because of their relationship, the
court should treat such testimony with caution.

Bottom line for victims’ evidence: The complainant is not an accomplice. A warning/self-direction about
the dangers of convicting on uncorroborated testimony in sexual cases is part of sound practice
(prudence), not a strict legal necessity. Where corroboration is looked for, it must be independent and
implicate the accused.

(e) Tainted witness

The expression “tainted witness” first appeared in the dissenting judgment of Mbanefo Ag. J.S.C. in R v.
Omisade & Others, though His Lordship did not define it. A clearer definition was later provided in
Nathaniel Mbenu & Ors v. The State, where Nnamani J.S.C. explained:

> A tainted witness is one who, though not an accomplice, may have a purpose of his or her own to
serve in giving evidence. The evidence of such a witness should be treated with considerable caution
and examined “with a tooth comb.” Trial courts have been repeatedly advised to be wary of convicting
on such testimony unless it is corroborated.

Thus, a tainted witness is not always an accomplice, but like an accomplice, the credibility of their
testimony is inherently suspect because of possible bias, self-interest, or ulterior motive.

1. Pius v. State

Principles laid down:

(i) A tainted witness may be:

One who has his own purpose to serve, and may therefore twist facts; or

An accomplice.

(ii) The mere fact that a witness may have interests of his own is not enough to disqualify or eject his
evidence outright.
(iii) The trial judge must warn himself about the dangers of acting on the testimony of such awitness
without corroboration.

(iv) If the tainted witness is also an accomplice, then corroboration is required as a matter of law.

Application in the case: PW3 and PW4 were policemen. The appellant argued they were tainted
witnesses, but the court found no evidence that they had any ulterior personal purpose apart from
performing their lawful duty. They were therefore not tainted, and their evidence required no
corroboration.

2. Egbirika v. State

Holding: A tainted witness may or may not be an accomplice, but is generally one who, by his evidence,
can be seen as having a purpose of his own to serve.

In that case, PW1 was part of a police team ordered to chase some suspects. The defence claimed he
was tainted. The Supreme Court rejected this: merely being a member of a police team does not make
one tainted, nor does it render the witness incompetent to testify.

Nature of the warning required

The law imposes a mandatory warning when the evidence of an accomplice (or a tainted witness if
treated as such) is being considered. This derives from section 198(1) of the Evidence Act (proviso).

The judge must warn himself that it is unsafe to convict on the uncorroborated evidence of an
accomplice.

However, the judge retains a discretion: after properly warning himself, he may still legally convict based
on that evidence if he finds it credible and compelling.

In the case of a tainted witness who is not an accomplice, corroboration is not mandatory as a matter of
law, but the judge must proceed with the utmost caution.

1. Evidence of a Co-Accused

Section 199 of the Evidence Act provides:

> Where defendants are tried jointly and any of them gives evidence on his own behalf which
incriminates a co-defendant, the defendant who gives such evidence shall not be considered to be an
accomplice.

Legal Implication

A co-accused is not an accomplice by virtue of giving evidence that implicates another accused person in
the same trial.
Consequently, the strict rule in Section 198(1) requiring a judge to warn himself of the dangers of
convicting on the uncorroborated evidence of an accomplice does not apply to a co-accused. However,
because a co-accused may have his own purpose to serve, the law insists that such evidence should be
treated with utmost caution.

Inspector-General of Police v. Lawrence Akinbayode: The appellant and another were jointly charged
with stealing, forgery, and uttering a forged document. The co-accused, in his defence, incriminated the
appellant. The appellant was convicted solely on that evidence. The court held that no corroboration
was legally required. Nevertheless, elementary justice requires that courts warn themselves of the
danger of relying on such uncorroborated testimony.

Ozaki v. State: The Supreme Court held that, by virtue of Section 199 (formerly s.178(2)), evidence by
one co-accused against another is not accomplice evidence. The trial judge had wrongly treated such a
statement as accomplice testimony.

Oyakhire v. State: The court clarified that although the evidence of a co-accused should be approached
with circumspection, there is no legal duty to issue an accomplice-style warning before convicting on it.

Ononuju v. State:

(i) The evidence of a co-accused does not require corroboration as a matter of law, but prudence
demands the court should look for independent corroboration outside the testimony of the co-accused.

(ii) A co-accused has his own interests to protect and may shade the truth, so his evidence must be
regarded with considerable caution.

(iii) Where there are material contradictions in prosecution evidence, such doubts must always be
resolved in favour of the accused.

Takeaway: A co-accused is not an accomplice in law, but as a matter of practice, courts should treat such
evidence with suspicion and caution, often seeking corroboration even though not required by statute.

2. Treason and Treasonable Offences

Section 201 of the Evidence Act provides:

> A person charged with treason or certain specified felonies (under sections 40, 41, 42 of the Criminal
Code) cannot be convicted except: on his own plea of guilty, or on the evidence in open court of at least
two witnesses to one overt act of the treason or felony, or the evidence of one witness to one overt act
and another witness to a different overt act of the same treason or felony.

Exceptions

This strict corroboration rule does not apply where the overt act alleged is the killing of the President or
a direct attempt to endanger or injure the President.

Case: R v. Omisade
The Supreme Court held that it is not necessary for one witness to describe the whole overt act in its
entirety. It is sufficient if different witnesses give evidence of fragments (“snippets”), which, when put
together, establish the overt act.

Treatment of accomplices in treason cases

Accomplices in treason or treasonable felonies are treated the same way as in other offences. Section
198(1) therefore applies — the judge must issue the accomplice warning before relying on their
evidence

3. Perjury

Section 202 of the Evidence Act provides:> No person shall be convicted of perjury, or of counselling or
procuring perjury, upon the uncorroborated testimony of one witness contradicting the oath on which
perjury is assigned, unless circumstances are proved which corroborate such witness.A similar provision
exists in section 119 of the Criminal Code.

Rationale: Since perjury involves word against word, the law requires independent corroboration
beyond the testimony of just one witness.

4. Exceeding the Speed Limit

Under the Road Traffic provisions, a person cannot be convicted of driving above the speed limit solely
on the evidence of one witness that, in his opinion, the accused was driving too fast.Conviction requires
the evidence of two credible witnesses, or other admissible proof (e.g., speed-measuring devices).This
creates an exception to the general rule against opinion evidence.

5. Sedition

Section 204 of the Evidence Act provides:> A person shall not be convicted of uttering seditious words
under section 51(1)(b) of the Criminal Code upon the uncorroborated testimony of one witness.

Distinction under the Criminal Code

Seditious words (oral) → require corroboration (s.52(3) Criminal Code). Seditious publications (written)
→ do not require corroboration.

Reason for the distinction:Spoken words are ephemeral and harder to prove, hence greater risk of
fabrication.Publications are in permanent written form and can be physically produced in evidence,
making them easier to prove without corroboration.

Sexual Offences Requiring Corroboration

The Criminal Code specifies certain sexual offences for which corroboration of evidence is mandatory
before a conviction can be secured. These offences are found in sections 218, 221, 223, and 224 of the
Code:

1. Section 218 – Defilement of girls under thirteen

Unlawful carnal knowledge of a girl under 13 is a felony punishable with life imprisonment (with or
without caning).

Attempt attracts 14 years imprisonment.

Conviction cannot be based on the uncorroborated testimony of one witness.

2. Section 221 – Defilement of girls under sixteen and idiots

Covers unlawful carnal knowledge of girls aged 13–16, and women or girls who are idiots or imbeciles.

It is a misdemeanor punishable with 2 years imprisonment (with or without caning).

Again, conviction requires corroboration.

3. Section 223 – Procuration

Offences include:

(a) Procuring girls under 18 for unlawful carnal connection.

(b) Procuring women/girls to become prostitutes.

(c) Procuring them to leave Nigeria or their homes for prostitution/brothel life.

Conviction cannot rest on the uncorroborated testimony of one witness.

4. Section 224 – Procuring defilement of woman

Includes:

(a) Procuration through threats or intimidation.

(b) Procuration by false pretence.

(c) Procuration by stupefying drugs.

Conviction requires corroboration

The Position of the Law in Nigeria

For the offences above, corroboration is mandatory as a matter of law.

The judge must direct himself accordingly. Failure to do so will lead to the conviction being quashed on
appeal.

The difficulty with this rule is that sexual offences are usually committed in private, making
corroboration difficult or impossible to obtain. This places the prosecution in a difficult position and
often frustrates justice.

Comparative Developments

1. United States

An accused may be convicted solely on the uncorroborated testimony of the victim.

No strict corroboration requirement.

2. England

The Criminal Justice Act 1994, section 32(1) abolished the requirement of corroboration warnings in
sexual offences and accomplice evidence.

Section 34(2) of the Criminal Justice Act 1988 abolished mandatory corroboration warnings for child
witnesses.

In R v. Makanjuola and R v. Easton, the Court of Appeal held that whether a warning is given is a matter
of discretion for the trial judge, depending on:

the circumstances of the case,

the issues raised,

the content and quality of the witness’s evidence, and

whether there is a basis for doubting reliability.

3. Scholarly Debate

Professor Glanville Williams supported strict corroboration to protect against wrongful convictions

However, modern realities (privacy of sexual offences, difficulties in proof) make this view hard to
sustain.

Suggested Reform in Nigeria

The mandatory corroboration rule in sexual offences is unsatisfactory and outdated.

Nigeria should follow the English approach, where corroboration is not required by law, but left to the
judge’s discretion.
Legislative amendment is necessary for Nigeria to keep pace with international developments and
ensure fairer justice in sexual offence trials.

Corroboration in Civil Cases

The discussions on corroboration above relate to criminal proceedings. In civil proceedings, the general
rule is that the testimony of one witness is enough to establish a claim. The witness may be the plaintiff
himself.

The only exception to this general rule is contained in section 197 of the Act. Let us examine the
exception.

(1) Breach of Promise of Marriage

Section 197 provdes that:

> No plaintiff in any action for breach of promise of marriage shall be entitled to succeed unless his or
her testimony is corroborated by some other material evidence in support of such promise, and the fact
that the defendant did not answer letters affirming that he had promised to marry the plaintiff is not
such corroboration.

This means that the conduct of the defendant toward the plaintiff will be sufficient, because section 197
does not require the testimony of another witness, but “some other material evidence in support of
such promise.”

A similar provision exists in section 2 of the English Evidence (Further Amendment) Act 1869, which
provides that where a defendant fails to deny an allegation of the existence of the promise to marry,
made in his presence and hearing, this may amount to corroboration.

In Bessela v. Stern, the plaintiff brought an action for breach of promise of marriage. It was proved that
the plaintiff had said to the defendant: “You always promise to marry me, and you don’t keep your
word.” The defendant did not contradict this statement. He remained silent. The court held that the
defendant’s silence and conduct amounted to corroboration of the plaintiff’s claim.

Whether particular conduct by the defendant will amount to corroboration depends on the facts of each
case. Examples include:

Calling the plaintiff fiancée

Calling her “my wife”

However, failure by the defendant to reply to a letter written by the plaintiff calling on him to perform
his marriage promise is not corroboration, as expressly provided in the second part of section 197.

(2) Matrimonial Causes

In matrimonial causes, there is no statutory provision requiring corroboration of evidence. However,
courts have formulated rules regarding matrimonial causes.

According to Aguda, when the alleged matrimonial offence is either adultery or cruelty, no
corroboration is required, although it is desirable to have it.

In practice, courts are reluctant to grant a petition based on these offences on the mere evidence of the
petitioner, unless such evidence is very strong and convincing

In Etim v. Etim, the Supreme Court held that corroboration of evidence in a divorce case involving
cruelty was a matter of practice and not a rule of law. The court further held that the uncontradicted
evidence of the husband was enough to prove cruelty as a matrimonial offence.

(3) Other Matters Relating to Corroboration

Section 239 deals with former statements made by a witness. It provides that, to show consistency in
the testimony of a witness or to show that the testimony is not an afterthought, any former statement
made by such a witness relating to the same fact at or about the time the fact took place, or before any
authority legally competent to investigate the fact, may be proved.

Section 34(2) provides that:

> For the purpose of any rule of law or practice requiring evidence to be corroborated, or regulating the
manner in which uncorroborated evidence is to be treated, a statement rendered admissible as
evidence by this Act shall not be treated as corroboration of evidence given by the maker of the
statement.

There appears to be a conflict between these two sections. However, this conflict can be resolved if
section 239 is interpreted as dealing with consistency, not corroboration. Former statements are proved
to show consistency in the witness’s testimony. They are not to be treated as corroborating the
testimony.

In Usiobaifo v. Usiobaifo, the Supreme Court held that proof of customary law is not one of the areas in
adjectival law that needs corroboration. While it may be desirable that a person other than the person
asserting the customary law should testify, the Act does not provide so. Evidence on the existence of the
custom may be led by a single witness or more, and it is not required that a community or village of
witnesses be called to satisfy section 16 of the Evidence Act.

Nature of Corroboration

Where corroboration is required by law or as a matter of practice, it must be an independent testimony,

either direct or circumstantial, which confirms in some material particular:

1. That the offence or claim has been committed.

2. That the accused or defendant committed it.

In considering whether evidence is corroborative, the court must take the evidence as a whole, not
piece by piece. Suspicion alone cannot give such evidence the quality of corroboration.

Corroboration may also come from:

The conduct of the accused or defendant.

A document written by the accused or defendant.