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WHETHER OR NOT A WITNESS IS AN ACCOMPLICE IS ONE OF LAW

Dictum

The question whether or not a witness is an accomplice is one of law not of fact and if, as here, the learned trial Judge erred in regarding P.W.(18) as an accomplice (to the crime of conspiracy) it is certainly open to an appellate court (and in this instance, the Federal Court of Appeal) to reverse the erroneous view of the learned trial Judge.

— Idigbe, JSC. Ishola v State (1978) – SC.8/1977

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PROSECUTION HAS DISCRETION TO CALL ITS IMPORTANT WITNESSES

It is trite law that there is no rule which imposes an obligation on the prosecution to call a host of witnesses; all the prosecution need do is to call enough material witnesses to prove its case, and in so doing it has a discretion in the matter. See: Samuel Adaje v. The State (1979) 6-9 SC 18 at 28. Bako Bahor v. Yaburi NA Police (1970) NMLR 107 at 112; E.O. Okonofua & Anor v. The State (1981) 6-7 SC 1 at 18. See also section 179(1) of the Evidence Act. What is more it is the law that if a witness is not called by the prosecution, the defence is at liberty to do so. —

Onu JSC. Oguonzee v State (1998) – SC.131/97

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WHO IS A TAINTED WITNESS

A tainted witness falls into one or both of the two categories hereunder listed: (1) A witness who is an accomplice in the crime charged. (2) A witness who, by the evidence he gives, may and could be regarded as having some purpose of his own to serve. Rasheed Olaiya v. The State (2010) Vol. 180 LRCN 1-197 p.34; The State v. Dominic Okoro & Ors (1974) 2 SC 73 at 82; Ishola v. The State (1978) 9-10 SC 73 at 100 .

— N.S. Ngwuta, JSC. Odogwu v State (2013) – SC.122/2009

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WHEN IS A WITNESS TAINTED

The position is that a tainted witness is either an accomplice or a witness who has an interest to defend or a purpose to serve in a case in which he is called upon to give evidence as a witness. It has to be shown that the witness has some peculiar interest to protect or purpose to serve in the evidence he gives in a case in order to make him a tainted witness.

– M.L. Garba JCA. Odogwu v. Vivian (2009) – CA/PH/345/05

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WHO IS A TAINTED WITNESS?

A tainted witness has been classified as one who is either an accomplice or by the evidence he gives, whether as a witness for the prosecution or defence, may and could be regarded as having some purpose of his own to serve. See: Ishola v. The State (1978) NSCC 499 at 509.

— Iguh, JSC. Oguonzee v State (1998) – SC.131/97

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WITNESS SUBPOENAED BY THE COURT AND WITNESS SUBPOENAED BY A PARTY

The Petitioners have tried to argue that the said witnesses are witnesses of this Court. With respect, this argument is misconceived, because the subpoenas in respect of those witnesses were issued upon the request of the Petitioners. The applications for the issuance of the subpoenas were duly filed at the Registry of this Court by the Petitioners’ Counsel and the requisite fees, including filing fees and service fees as assessed were duly paid by them, before this Court approved and issued the subpoenas. Therefore, those witnesses are the Petitioners’ witnesses and not witnesses of this Court. Indeed, the procedure for calling of witnesses by the Court is by summons as stipulated in Paragraph 42(1) of the 1st Schedule to the Electoral Act, 2022. By the provisions of that Paragraph, “the tribunal or court may summon a person as a witness who appears to the tribunal or court to have been concerned in the election.” It is clear from the to provision of that paragraph that it is a person summoned by the Court suo motu in exercise of its powers under Paragraph 42(1) that is a witness of the Court and not person subpoenaed at the request of a party to the case.

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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RELATIONSHIP OF WITNESS TO VICTIM IS IRRELEVANT

Where the evidence of such a witness is otherwise credible and sufficiently of probative value to the charge, the fact of his relationship to the victim or that he has other personal interest of his own to serve is by itself not sufficient to reject his evidence. In law, causes are not lost on the basis that the witness/s is/are members of the same family, association or community. Even where the Court fails or omits to caution or warn itself on evidence that is true in fact and sufficient to ground a charge, the failure or omission would not weaken the validity of such evidence or be fatal to a conviction.

– M.L. Garba JCA. Odogwu v. Vivian (2009) – CA/PH/345/05

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