Criminal Litigation Nigerian Law Procedural Law

CORROBORATION; A Sword and A Shield In The Hands Of The Accused – Elijah Olawale Agboola

“Corroboration” to a layman means to support or help prove a statement or theory; by providing information or evidence. However, the court in the case of Habibu v. State defined corroboration as an independent evidence which strengthens and discloses not only the commission of an offence but equally links or tends to link the accused with the commission of the offence. The principle of corroboration is mostly used in criminal cases. The court has warned itself against convicting an accused upon an uncorroborated testimony. This principle have been given judicial affirmation in a plethora of cases.

Our focus is on corroboration in rape cases. Having explained what corroboration is, we move to establish what rape is. The offence of rape is contained under section 357 of the Criminal Code Act, Cap. C38, LFN 2004. Alagoa, J.C.A defined rape in the case of Ndewenu Posu v. State as:

“…having 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.”

The ingredients that must be established to ground a conviction for rape have been highlighted in the widely celebrated case of Lucky v. State. They are;

1. That the accused had sexual intercourse with the prosecutrix

2. That the act of sexual intercourse was done without the consent or that the consent was obtained by force, threat, etc.

3. That the prosecutrix was not the wife of the accused

4. That the accused had the mens rea to have sexual intercourse with the prosecutrix without her consent.

5. That there was penetration.

Clearly, corroboration is not statutorily required for the offence of rape. However, it has been consistently held that the trial court must warn itself before it convicts on the uncorroborated evidence of the prosecutrix. In fact, most cases have been decided in favor of the accused persons due to lack of corroboration of the testimony of the prosecutrix.

In a plethora of cases, it is easy for the court to convict the accused for the offence of rape when the prosecutrix is underage. The rational is that the mostly used defence to the offence of rape is consent. In the case of Oludotun v. The State, the court stated that consent is a complete defence to rape. The implication of this is that when the accused raises the defense of consent, he can be exonerated (if proved) no matter the level of penetration. On the other hand, penetration has been highlighted as the most crucial element of rape. However, an underage cannot give consent. Even when she gives, it is invalid. In the case of Babatunde v. State where the accused person had carnal knowledge of an 11 year old girl. He was convicted for the offence of rape as the court held that aa girl who is under age is not capable of giving consent. This same principle was also applied in the case of Oka v. State where the accused was convicted of having carnal knowledge of an underage. Also. In the case of Onoyiwa v. State. It should be noted that in all the earlier cited case, penetration alone is needed to prove rape as the prosecutrix are mainly underage who can’t give consent.

However, the question is, will the situation remain the same for an adult? Will the accused be convicted based on evidence showing penetration alone? When the accused raises the defense of consent, will it avail him? In the case of Babatunde v. State the court held that penetration, no matter how slight, is a proof of sexual intercourse. Does a proof of sexual intercourse mean proof of rape? Consent has been said to be a complete defense to rape. The implication of this is that, to convict a person who has been alleged of raping an adult, it is the duty of the prosecution not only to prove penetration but also to prove lack of consent. The problem then is how does the prosecution prove lack of consent in a rape charge? Nikki Tobi JSC expressed his concern over this in the case of Ogunbayo v. The State. He opined thus

‘I am not comfortable with the case law that corroboration is necessary to secure conviction for the offence of rape. This is
because I see no statute fostering on the prosecution evidence
of corroboration before convicting an accused. I therefore ask,
where did we get that law? In all practicality, what evidence of
corroboration is needed in the offence of rape? In most cases,
the offense is committed in private. After all, the prosecutrix
may not like to be seen by the public when the art of rape
is being committed. And so, it is difficult to secure corroboration
from evidence of an eye witness. She would rather prefer reporting
the rape after the act. This is more reason why it is difficult to secure
evidence corroborating that the accused inserted his penis into the
vagina of the prosecutrix without her consent.”

This concern was also raised by Olabode Rhodes-Vivour JSC in the case of Lucky v. State where he stated thus;

Sex is usually not performed in the presence of a third party.
In most cases, it is a hidden act performed behind closed doors,
away from the prying eyes. It is rare to get a witness to give
evidence on oath that he saw the appellant have sex with the prosecutrix.’

In addition, in the case of Iko v. State, the Apex Court held that in most cases of rape, it is difficult to secure corroboration from the evidence of an eye witness that the accused person inserted his penis into the vagina of the victim without her consent.

The issue of consent thus becomes very relevant when dealing with grown up adults. This is when the requirement of corroboration is needed especially that of an eye-witness. Failure to support the testimony of the prosecutrix might make a rapist roaming on the street as a free man. Although the provision of the law does not make the need for corroboration a mandatory element. Nevertheless, the court must warn itself before convicting on the uncorroborated testimony of a prosecutrix. It is thus submitted that the rule of corrobation in rape cases should be relaxed so as to deal with rapists and prevent them from going scot-free due to lack of evidence.


I. (2018) LPELR-CA/K/381/C/2017

II. Ahmed v. Nigerian Army (2016) LPELR-40826(SC), Natasha v. State (2017) LPELR-42359(SC)

III. (2010) LPELR-CA/I/180/2009 (Pp 31-32, paras. F-A)

IV. (2016) LPELR-SC.842/2014

V. Mohammed v. Kano State (2018) LPELR-SC.801/2015, Lucky v. State (2016) LPELR-SC.842/2014, Onoyiwa v. State (2018) LPELR-CA/B/44C/2014

VI. (2007) 3 S.C. (Pt. II) 1 at 16 lines 20 – 40

VII. Onoyiwa v. State (2018) LPELR-CA/B/444C/2014, Babatunde v. State (2018) LPELR-CA/EK/23C/2017, Habibu v. State (2018) LPELR-CA/K/381/C/2017

VIII. (2018) LPELR-CA/EK/23C/2017

IX. (2018) LPELR-CA/E/78C/2016

X. (2018) LPELR-CA/B/444C/2014

XI. supra

XII. (2007) 8 (pt1035) 157 SC

XIII. supra

XIV. (2001) FWLR Pt. 68 1161

About the Author

Elijah Olawale Agboola

Elijah Olawale Agboola is a 500 level law student of Obafemi Awolowo University. He was the Chairman of the Moot and Mock Committee during his final year. He has represented OAU at various competitions across the country.
He has a special interest in dispute resolution among others. He loves to learn and read. He also loves to watch football as well as play it.

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