ADENEKAN v. STATE OF LAGOS (2020)

ADENEKAN v. STATE OF LAGOS

(2020)LCN/14522(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, July 27, 2020

CA/LAG/CR/1426/2019

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

ADEGBOYEGA ADENEKAN APPELANT(S)

And

THE STATE OF LAGOS RESPONDENT(S)

RATIO

BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

As a foundation, by dint of the provisions of Sections 131, 132 and 135 (1) and (2) of the Evidence Act, 2011, the Respondent, as the party who alleged that the Appellant committed a crime; defilement of a child under the age of eleven 11 years, before the Lower Court, bore the burden of proving the allegation beyond reasonable doubt and it is only when the burden was fully and satisfactorily discharged in accordance with established principles of law on practice and procedure on the standard of such proof, it remains permanently on the Respondent throughout the trial. See Section 135(3) of the Evidence Act, 2011, Laoye v. State (1985) 1 NWLR (Pt. 10) 832; Yongo v. COP (1992) 4 SCNJ, 113 (1992) 1 NWLR (Pt. 257) 36; Aruna v. State (1990) 6 NWLR (Pt. 155) 125 @ 137, (1990) 9-10 SC, 87; Alor v. State (1997) 4 NWLR (Pt. 501) 36; Ariche v. State (1993) 7 SCNJ, 457, (1993) 1 NWLR (Pt. 302) 52; Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686; Ifejirika v. State (1999) 3 NWLR (Pt. 593) 59; Ani v. State (2003) 11 NWLR (Pt.830) 142; Igabele v. State (2006) 6 NWLR (Pt. 975) 100; Oche v. State (2007) 5 NWLR (Pt.1027) 214. However, the Evidence Act did not define what “proof beyond reasonable doubt” means or when the standard can be said to be attained or met by the evidence to be adduced by the prosecution in criminal trials in proof of an alleged commission of a crime by an accused person for the burden to be satisfactorily discharged. The general practice adopted by the Courts in Nigeria in the definition of the phrase “proof beyond reasonable doubt” is linked to the very famous statement by Lord Denning, J. (as he then was) in the English case of Miller v. Minister of Pensions (1947) 2 E. R., 372 @ 373 wherein he said:- “Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law will fail to protect the community if it admitted fanciful possibilities to defect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” PER GARBA, J.C.A.

METHODS BY WHICH THE PROSECUTION CAN ESTABLISH THE GUILT OF AN ACCUSED PERSON

The law is also settled that the standard of proof beyond reasonable doubt can be achieved, attained or met by the prosecution in proving the guilt of an accused person by any of the following methods or ways: –
(a) direct evidence of eye witnesses, or
(b) free and voluntary confessional statement of the accused person made either extra-judicially during investigations or made at the trial before the Court which is direct, positive and found by the Court to be true, or
(c) circumstantial evidence which is cogent, credible, consistent and compelling to irresistibly establish that no one else but the accused person committed the offence. See Lori v. State (1980) 8-11 SC, (1980) 12 NSCC, 269; Emeka v. State (2001) 32 WRN, 37, (2001) 6 SCNJ, 259; Igabele v. State (supra) also reported in (2006) 28 WRN, 1, (2006) 25 NSCC, 231; Fatilewa v. State (supra); Mohammed v. State (2007) ALL FWLR (Pt. 415) 1656; Joshua v. State (supra) also reported in (2010) 1 WRN, 41 @ 64; Igri v. State (2010) WRN 31 @ 47; Olabode v. State (2007) ALL FWLR (Pt. 389) 1301; Idiok v. State (2008) ALL FWLR (Pt. 421) 797. PER GARBA, J.C.A.

THE PRIMARY FUNCTION AND DUTY OF THE TRIAL COURT

As a restatement of the very well-known position of the law, a trial Court, in all cases, has primary function and duty to fully appraise the facts of a case and properly evaluate the totality of the relevant and material evidence adduced by the parties in line with established principles in order to draw necessary inferences and ascribe due probative value for the purpose of making findings and reaching decisions on the rights and obligations of the parties in the case. As a first instance Court, a trial Court has the unique position and enjoys the privilege of physically seeing and hearing the witnesses in a case give direct accounts on the facts relied on by the parties; watching their demeanour and noting the subtle and often influencing nuances, and so is in the best position to assess and evaluate the credibility of and reliability of the evidence given by such witnesses in arriving at its ultimate decision in the case. Muka v. State (1976) 5 & 10 SC, 305 @ 325; Ogoala v. State (1991) 2 NWLR (Pt. 175) 509; Adamu v. State (supra); State Ajie (2000) 7 SC (Pt. 1) 24; Bashaya v. State (1998) 5 NWLR (Pt. 990) 65; Adebayo v. Adusei (supra).PER GARBA, J.C.A.

FACTORS TO GUIDE THE TRIAL COURT IN DISCHARGING ITS PRIMARY DUTY TO EVALUATE EVIDENCE
In the discharge of the primary duty to evaluate evidence, a trial Court is generally to be guided by, among other factors, (a) whether the piece of evidence is admissible in law, (b) whether the evidence is relevant; (c) whether the evidence is credible; (d) whether the evidence is probable and (e) whether the evidence is conclusive on the facts in dispute.
See Mogaji v. Odofin (1978) 4 SC, 91, (1978) NSCC, 275; Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182; Akad Ind. Ltd. v. Olubode (2004) 4 NWLR (Pt. 862) 1; Osigwe v. Unipetrol Nig. Ltd. (2005) ALL FWLR (Pt. 267) 1525; Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 368.
The law remains that where a trial Court dutifully and properly discharged its primary duty in the appraisal of the facts and evaluation of the totality of the relevant and material evidence placed before it by the parties in a case in its decision, an appellate Court would have no justification and business to interfere with the evaluation by substituting its own views of the evidence for that of the trial Court. It is only where and when it is demonstrated on an appeal and the appellate Court is satisfied, that a trial either fails to properly evaluate all or some relevant and material parts or portions of the evidence before it that the appellate would have, not only valid reason(s), but the duty to intervene to re-evaluate or evaluate the evidence in question for the purpose of ascription of the deserved probative and reaching the appropriate decision in the case. It is not the function of an Appellate Court to retry a case on the notes of evidence and set aside the decision of a trial Court merely on the ground that it would have reached a different conclusion on some or even all the evidence so long as the trial Court fully and properly, no matter the style used, appraised and evaluated the material evidence before it. See Ali v. State (1988) ALL NLR, 1; Ogunleye v. Oni (1990) 4 SC, 130; Adusei v. Adebayo (supra); State v. Ajie (supra); Bashaya v. State (supra); Saleh v. B. O. N. Ltd (2006) ALL FWLR (Pt. 310) 1600; Gabriel v. State (2010) 6 NWLR (Pt. 1190) 280; Igago v. State (1999) 12 SCNJ, 140. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant was convicted for the offence of defilement of a child contrary to Section 137 of the Criminal Law, Cap C17, Laws of Lagos State, 2015 (CLLLS) by the High Court of Lagos State in a judgement delivered on the 29th of October, 2019. He was sentenced to sixty (60) years imprisonment and being aggrieved by the decision, brought this appeal vide the Notice of Appeal dated 5th, but filed on 6th of December, 2019 against same on nine (9) grounds.

In the Appellant’s brief filed on the 30th of December, 2019, Mr. Olatunde Adejuyigbe, SAN, for the Appellant, submits two (2) issues for determination in the appeal as follows: –
“i. Did the learned trial Judge act in accordance with the settled principles of law when he convicted the Appellant without an appraisal or evaluation of the complete evidence on records? (Grounds 1, 2 and 3 of the Notice of Appeal)
ii. Whether from the totality of the evidence on record the learned trial Judge was right when he held that the Prosecution has proved its case against the Appellant beyond reasonable doubt. (Grounds

4, 5, 6, 7, 8 and 9 of the notice of Appeal).”

For the Respondent, Mr. A. O. Alagbe, Senior State Counsel in the Directorate of Public Prosecutions, Lagos State Ministry of Justice settled the Respondent’s brief filed on the 20th of February, 2020 deemed on 2nd of June, 2020, in which he proposes the following issues for decision by the Court in the appeal: –
“1. Whether the evidence adduced by the Respondent has discharged the burden of proof beyond reasonable doubt as held by the learned trial Judge.
2. Whether by the facts, circumstances and testimonies of PW1, PW2, PW3, PW4, PW5, PW6 and PW7 the learned trial Judge rightfully convicted the Appellant for the offence of Defilement of a child contrary to Section 137 of the Criminal Law of Lagos State 2015.”

As can easily be noticed, the substance of the two (2) issues raised in the Respondent’s brief is the same on whether the Respondent discharged the burden of proof as required by law for the offence the Appellant was convicted.

For being precise on the complaints embedded in the Appellant’s grounds of appeal, I intend to use the issues formulated

in the Appellant’s brief in the determination of the appeal.

There is an Appellant Reply Brief (ARB) filed on the 13th of March, 2020, deemed on the 2nd of June, 2020 in response to the Respondent’s brief.

Issue One (1): Appellant’s Submissions:
CitingAdamu v. State (1991) 4 NWLR (Pt. 187) 530 @ 538 and Mini Lodge Ltd. V. Ngei (2009) 7 NWLR (Pt. 1173) 254 @ 283 on the duty of a trial Court to evaluate the totality of evidence placed before it in a case and ascribe probative value to it before arriving at a decision in the case, the learned Silk for the Appellant submits that the Lower Court only summarized the evidence of the parties, which is not a substitute for evaluation; on the authority of Atoyebi v. Gov., Oyo State (1994) 5 NWLR (Pt. 344) 290 @ 309, but did not appraise or evaluate it. According to him, the Lower Court solely relied on the evidence-in-chief of the Prosecutrix (Pw 4) but made no reference to the cross examination of the witness or consider the evidence of the other witnesses who testified in the case, particularly, the defence in support of the Appellant’s case which it had the duty to consider.

Nwuzoke v. The State (1988) 1 NWLR (Pt. 72) 529 @ 536 is cited on the duty to consider every available defence to an accused person as disclosed by evidence and it is pointed out that the defence of the Appellant was that he never entered the Prosecutrix’s class and was at no time with her in his office or any other place.

The evidence of PW7 (under cross-examination) DW2, DW3, DW4 and DW5 (Appellant) was set out and it is argued that failure by the Lower Court to consider and evaluate the said evidence constituted a travesty of justice against the Appellant and reliance is placed on Joseph v. State (2011) 16 NWLR (Pt. 1273) 226 @ 244 and Saraki v. FRN (2018) 16 NWLR (Pt. 1646) 405 @ 469. It is also the case of the learned SAN that the approach by the Lower Court to the evidence of the defence is perfunctory and an abdication of the duty to evaluate the totality of the evidence in the case and the statement by Adekeye, JSC in CPC v. INEC (2011) 18 NWLR (Pt. 1279) 493 @ 537 is referred to on the submission. The evidence of DW1, DW2, DW3 and DW4 was set out in support of the submission that the comment made by the Lower Court that all the teachers in

the school only came to give support and protection to a colleague and to protect the school, was incorrect and contrary to the law as stated in Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1 @ 20 and Nduka v. State (2013) LPELR-2199 (CA); Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173 @ 209 and Pius v. State (2015) 7 NWLR (Pt. 1459) 628 @ 642, among other cases on treatment of the defence witnesses as tainted witnesses in the absence of clear of evidence that they each had their own interest to serve in the case. In further argument, it is said that the Lower Court did not evaluate the evidence of the Appellant on the ground that he exhibited arrogance which cannot justify failure to evaluate the evidence and consideration of his defence and the Court is urged to resolve the issue in favour of the Appellant.

Appellant’s Issue II:
The Submissions by the Learned Silk for the Appellant are to the effect that since the Lower Court was shown under Issue 1 to have failed to evaluate the totality of the evidence placed before it, this Court, on the authority of Adegoke v. Adibi (1992) 2 NWLR (Pt. 242) 410 @ 427 and Ndukwe v. State (2009) 7 NWLR (Pt. 1139)

43 @ 85, has the power to re-examine the whole facts and a duty to, by way of rehearing, evaluate the evidence that has been adduced, as if it were the trial Court and come an independent decision in the case. It is then maintained that there was no evidence that and of how the Prosecutrix left class on the Ground Floor of the school building and found herself in the Appellant’s office at the 1st Floor and that a Court cannot act on speculation in the absence of evidence of fact. Reliance was placed on State v. Onyeukwu (2004) 14 NWLR (Pt. 893) 340 @ 379-80 for the submission and on Onuoha v. State (1989) 2 NWLR (Pt. 101) 23 @ 32 on the argument that in the above circumstances, the evidence of the Prosecutrix should not induce belief as it is not probable or in accord with the surrounding circumstances.

It is also contended that the evidence of the Prosecutrix on what the Appellant did to her and her friend; Jenita was materially and substantially contradictory as to cast doubt on its credibility and the cases of Gabriel v. State (1989) 5 NWLR (Pt. 122) 457 @ 468; Igbi v. State (2000) 3 NWLR (Pt. 648) 169 @ 187 and Ibeh v. State are cited inter

alia, on the definition and effect of unexplained material contradictions in the evidence of a witness.

The evidence of DW3; the Class Assistant in the Prosecutrix’s Class was referred to and it is said that the Lower Court had no option than to believe it as it was uncontradicted, in the absence of the other version, on the authority of Modupe v. State (1988) ALLNLR, 371 @ 375; Oforlete v. State (2000) 12 NWLR (Pt. 681) 415 @ 440 and Ebeinwe v. State (2011) 7 NWLR (Pt. 1246) 402 @ 416. In further argument, the Learned SAN said the Prosecutrix’s friend; Jenita, was a vital witness in the case and failure to call her to testify by the Respondent, was on the authority of Bello v. COP (2018) 2 NWLR (Pt. 1603) 267 @ 317 and Onah v. State (1985) 3 NWLR (Pt. 12) 236 @ 241, fatal to the case against the Appellant that the Prosecutrix was in his office and that he put his hand and mouth in her we-we. Adonike v. State (2015) 7 NWLR (Pt. 1458) 237 as well as Posu v. State (2011) 2 NWLR (Pt. 1234) 393 @ 417 (among other cases) are cited on the ingredients or elements for the offence of defilement and when sexual intercourse is deemed complete in law

and it is argued that the evidence of the Prosecutrix fell short of the requirements and proof thereof. Similarly, the cases of Adonike v. State (supra); Okabichi v. State (1975) ALL NLR, 69 @ 77-9 and Alao v. Akano are referred to on when corroboration of the evidence of a child as an element of the offence of defilement becomes necessary, the quality of corroborative evidence and the use of documentary evidence in a trial without oral evidence to explain them, respectively, are referred to by the Learned Senior Counsel who argues that the Exhibit “B”; the Psychological Evaluation Report prepared by PW2 shows that she used information obtained from the Prosecutrix and her mother and so it was not external and independent as required in Shofolahan v. State (2013) 17 NWLR (Pt. 383) 281 @ 314. Exhibits “E1-E3″, medical report tendered through PW5 are said to have been wrongly relied on by the Lower Court as corroborative evidence since they did not implicate the Appellant, and reliance is placed on Okpanefe v. State (1969) ALL NLR, 411 @ 415 and Lucky v. State (2016) 13 NWLR (Pt. 1528) 128 @ 158-9. Citing Akpabio v. State (1994) 7 NWLR

(Pt. 359) 635 @ 669; Akinbisade v. State (2006) 17 NWLR (Pt. 1007) 184 @ 212 and Oseni v. State (2012) 5 NWLR (Pt. 1293) 351 @ 388, the Learned SAN insists that there is no credible, cogent, consistent and unequivocal circumstantial evidence to justify the conviction of the Appellant and that the decision of the Lower Court is wrongly based on speculation and conjuncture. The Court is prayed to resolve the issue in Appellant’s favour.

In conclusion, the Court is urged to allow the appeal, based on the arguments canvassed in the Appellant’s brief.

Respondent’s Submissions: On the Two (2) Issues Argued Together.
Sections 135 and 138 of the Evidence Act, 2011 are cited on the burden and standard of proof in criminal cases and it is submitted that the requirement on the Respondent was to prove the offence against the Appellant beyond reasonable doubt and not beyond shadow of doubt, by presenting compelling and conclusive evidence before the Lower Court. The cases of Joseph v. State (supra) @ 225; Botu v. State (2018) 3 NWLR (Pt. 1607) 410; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230 and Hase v. State (2018) 3 NWLR (Pt. 1607) 502

are cited for the submission and it is argued that the Respondent discharged the burden and standard of proof by the evidence of PW1-7 which proved the ingredients of the offence against the Appellant, as set out in Okoh v. Nig. Army (2013) 1 NWLR (Pt. 1334) 16, beyond reasonable doubt as required by law. Learned Counsel argues that the Appellant never contradicted the evidence that he defiled the Prosecutrix; a 2 years and 11 months old child at the time, and that he had sex with her in line with her evidence, citing Lucky v. State (2016) LPELR-40541(SC) and the evidence in-chief of the Prosecutrix for the argument. Exhibit ‘K1-K3’ was also referred to and it is submitted that the law is that the slightest penetration is sufficient to establish carnal knowledge, on the authority of Jegede v. State (2000) LPELR-8163 (CA) and Iko v. State (2001) 14 NWLR (Pt. 732) 245 and it is not required that the penetration must be into the vault of the vagina. The evidence of PW5 is cited as supporting the defilement by the Appellant. Ahmed v. Nig. Army (2011) 1 NWLR (no part provided) 89 is cited in support of the argument that Exhibit E1-E3; medical report,

shows that the Appellant, and no other person defiled the Prosecutrix.

On the corroboration, it is contended by Counsel that it needs not be direct evidence or consist of the whole account given by a witness(es) provided that it corroborates it in some material respect and he relied on the authority of Ogunbayo v. State (2007) LPELR-2323 (SC) and Adonike v. State (2015) LPELR-24281 (SC). The evidence of PW7 is also said to have identified the Appellant as the person who was mentioned by the Prosecutrix to have defiled her and since he was a child, whose consent is immaterial in the proof of the offence against the Appellant, the Respondent has proved its case against him beyond reasonable doubt as the evidence of the PW1-PW7 remains cogent, relevant, uncontroverted and uncontradicted, linking him to the offence.

According to Learned Counsel, the Appellant’s statement to the Police in which he admitted being close to the Prosecutrix, even though he was not her teacher, linked him to the offence and contradicted his evidence in Court and so can be convicted on the statement once it is true and voluntary, citing Queen v. Ukpong (1961) ALL NLR

1; Joshua v. Queen (1964) 1 ALL NLR, 1 and State v. Okoro (1974) 2 SC, 73. He posits, citing Aiki v. Idowu (2006) 9 NWLR (Pt. 984) 47 and Olowu v. Building Stock Ltd (2018) 11 NWLR (Pt. 1601) (no page provided), that when a witness is shown to have made previous statements that are inconsistent with the evidence/testimony given at the trial, the testimony should be regarded as unreliable.

In addition, it is contention of Learned Counsel that because the Appellant did not object to the evidence of the Prosecutrix and other prosecution witnesses along with the Exhibits tendered, it is late for him to do so in this Court, relying on Sani v. Kogi State House of Assembly (2019) LPELR-46404 (SC).

On evaluation of evidence, Counsel says the Appellant did not show that the Lower Court failed to use the advantage of seeing the witnesses testify before it in the primary duty of evaluation of their evidence and he refers to Mogaji v. Odofin (1978) 4 SC, 1 and Eyiboh v. Dan Abia (2012) LPELR-20607 (SC). It is also the case of the Counsel that the Prosecutrix’s evidence has explained what the Appellant did to her and that the Appellant did not show

contradictions or inconsistency in the evidence which will destroy its credibility and so even if there may be some inconsistencies or contradictions, they were not substantial or fundamental to lead to a reversal of the decision by the Lower Court. The authority of Theophilus v. State (1996) 3 NWLR (Pt. 423) 139 is cited for the submission and it is argued further that the prosecution has the discretion on who to call as witnesses in the case and so failure to call the Prosecutrix’s friend; Jenita, was immaterial and not fatal to the case against the Appellant on the authority of Lucky v. State (supra); Olaoye v. State (2018) 2 NC/4607(SC) and Ogbodu v. State (1986) 5 NWLR (Pt. 294) 26-7. The facts in the case of Posu v. State (supra) cited by the Appellant are said to be different in that the victim in the case was not a child and the offence the Appellant was charged with, was rape and not defilement as in the Appellant’s case.

Further, that the account given by the Prosecutrix of what the Appellant did to her was cogent and enough to show penetration sufficient for the offence of defilement, on the authority of Ogunbayo v. State (supra)

also reported in (2007) 5SCM, 154.

Counsel also argues that the Prosecutrix did not misconceive what happened to her or who did it and any omission in her account can only “amount to an error of technicality” from which the attitude of the Courts has shifted towards substantial justice as stated inN. R. M. A & F. C. v. Johnson (2007) 49 WRN, 169-70 and Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46.

It is then maintained that on the totality of the evidence adduced before the Lower Court, it was right to convict the Appellant for the offence he was charged with.
In conclusion, the Court is urged to dismiss the appeal and affirm the judgement of the Lower Court.

In the Appellant Reply’s brief, it is submitted that Exhibits K1-K3; the extra-judicial statement of DW2 is not evidence of facts contained therein and is of no evidential value on the authority of Adisa v. State (1991) 1 NWLR (Pt. 168) 490 @ 510; Okeke v. State (2016) LPELR-40024 (CA) and Layonu v. State (1967) ALL NLR, 210 @ 213-4. It is also pointed out that Exhibits E1-E3 did not identify the Appellant as the person who defiled the Prosecutrix or show that Exhibits

N1-N3; Appellant’s extra-judicial statement, constituted a confession as defined in Gbadamosi v. State (1992) 9 NWLR (Pt. 266) 465 @ 479 and ruled on by the Lower Court on the objection to the admissibility of the statement. The cases of Gbafe v. Gbafe (1996) 6 NWLR (Pt. 455) 417 @ 428 and Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386 @ 403 are referred to on the distinction between the admissibility and weight to be attached or accorded documents admitted in evidence even without objection.
Once more, the Court is urged to allow the appeal.

Resolution
As a foundation, by dint of the provisions of Sections 131, 132 and 135 (1) and (2) of the Evidence Act, 2011, the Respondent, as the party who alleged that the Appellant committed a crime; defilement of a child under the age of eleven 11 years, before the Lower Court, bore the burden of proving the allegation beyond reasonable doubt and it is only when the burden was fully and satisfactorily discharged in accordance with established principles of law on practice and procedure on the standard of such proof, it remains permanently on the Respondent throughout the trial. See Section 135(3) of the Evidence Act, 2011

, Laoye v. State (1985) 1 NWLR (Pt. 10) 832; Yongo v. COP (1992) 4 SCNJ, 113 (1992) 1 NWLR (Pt. 257) 36; Aruna v. State (1990) 6 NWLR (Pt. 155) 125 @ 137, (1990) 9-10 SC, 87; Alor v. State (1997) 4 NWLR (Pt. 501) 36; Ariche v. State (1993) 7 SCNJ, 457, (1993) 1 NWLR (Pt. 302) 52; Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686; Ifejirika v. State (1999) 3 NWLR (Pt. 593) 59; Ani v. State (2003) 11 NWLR (Pt.830) 142; Igabele v. State (2006) 6 NWLR (Pt. 975) 100; Oche v. State (2007) 5 NWLR (Pt.1027) 214. However, the Evidence Act did not define what “proof beyond reasonable doubt” means or when the standard can be said to be attained or met by the evidence to be adduced by the prosecution in criminal trials in proof of an alleged commission of a crime by an accused person for the burden to be satisfactorily discharged. The general practice adopted by the Courts in Nigeria in the definition of the phrase “proof beyond reasonable doubt” is linked to the very famous statement by Lord Denning, J. (as he then was) in the English case of Miller v. Minister of Pensions (1947) 2 E. R., 372 @ 373 wherein he said:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law will fail to protect the community if it admitted fanciful possibilities to defect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” This statement has been what was to shape the legion of definitions of the phrase by our Courts over the years where in it was referred to with approval and adopted for the purposes of the burden of proof imposed by the provisions of Section 135 (1) of the Evidence Act in criminal trials. For instance, Oputa, JSC, in Bakare v. State (1987) 3 SC, 1 after reference to the statement by Lord Denning, J. above, had succinctly said that: –
“Proof beyond reasonable doubt means just it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability.”

On his part, Obaseki, JSC, in the same case said: –
“Proof beyond reasonable doubt means proof of an offence with certainty of the criminal law. That certainty is that the offence has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these facts, the case is said to be proved beyond reasonable doubt.”
Pat-Acholonu, JSC in Shande v State (2005) AL FWLR (Pt. 279) 1342 @ 1357 explained “proof beyond reasonable doubt” as follows: –
“It is essential to stress times without number that the expression proof beyond reasonable doubt – a phrase coined centuries ago and even applied by the Romans in their well developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of an accused and inconsistent with any other rational conclusions.”
In Dibie v. State (2007) ALL FWLR (Pt. 363) 83 @ 108, Tobi, JSC described “proof beyond reasonable doubt” as –
“proof that renders the

presumption of innocence on the part of the accused person useless and pins him down as the owner of the mens rea or the actus reus or both. Proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. Once the proof draws the presumption of innocence of the accused, the Court is entitled to convict him, although there exist shadows of doubt.”
From all the judicial definitions or description of the phrase “proof beyond reasonable doubt” it is firmly established that it does not mean proof beyond shadow, any shadow of doubt or any iota of doubt as that may be fanciful and unattainable practically and it does also require absolute proof of facts that may transcend the ordinary memory of a human being or involve the remembrance of every minute detail of an incident, which any ordinary man cannot commit to memory; see John v. State (2011) 12 MJSC (pt. III) 32, (2011) LPELR-8152 (SC). See also Eze v. FRN (1987) 2 SCNJ, 76; Adisa v. State (1991) 1 NWLR (Pt. 168) 490; Akalezi v. State (1993) 2 NWLR (Pt. 273) 1; Onakoya v. State (2002) 11 NWLR (Pt. 779) 595; Nwaturuocha v. State (2011) LPELR-8119 (SC), (2011) 2-3 MJSC (Pt. 1)

67); Oladotun v. State (2010) 15 NWLR (Pt. 1217) 490; Oseni v. State (2012) 2 MJSC (Pt. II) 123. In ordinary terms, proof of beyond reasonable requires that the evidence to be adduced by the prosecution in a case should in law be of the quantity and quality to establish all the essential ingredients or elements constituting the crime/offence an accused person is alleged to have committed. With regard to quantity, the evidence shall be sufficient, not in terms of number of witnesses or documents, but on cogency and credibility and for quality, it must also be admissible, compelling; standing alone or when considered with the evidence by the accused person, as to irresistibly point to the guilt of the accused person and no other.
When evidence adduced by the prosecution meets the above quantity and quality then it can be said to be so strong against an accused person as to leave only a remote possibility in his favour which can be waived away with the sentence “of course it is possible, but not in least probable”, and so the standard of proof beyond reasonable doubt is attained or met that excludes every reasonable or possible hypothesis except

that which is wholly consistent with the guilt of the accused person. See Babuga v. State (1995) 5 NWLR (Pt. 395) 329; Archibong v. State (2004) 1 NWLR (Pt. 855) 485; Abdullahi v. State (2005) ALL FWLR (Pt. 263) 698; Apugo v. State FWLR (Pt. 356) 669; Amodu v. State (2010) 2 NWLR (Pt. 1177) 47; Oguntayo v. State (2003) FWLR (Pt. 157) 1103; Engr. Kwale v. State (2003) FWLR (159) 1504; Okpe v. State (2002) FWLR (Pt. 103) 416.
In the above circumstances, where the evidence adduced by the prosecution in proof of an offence against an accused person does not cover or establish all the vital elements or ingredients which constitute the offence as defined by law or it is neither legally admissible nor sufficiently credible or it is susceptible to other possible hypothesis than one consistent with the guilt of the accused person, then the standard of proof beyond reasonable would not have been attained or met in the proof of the crime/offence as required by the law.
The law is also settled that the standard of proof beyond reasonable doubt can be achieved, attained or met by the prosecution in proving the guilt of an accused person by any of the following

methods or ways: –
(a) direct evidence of eye witnesses, or
(b) free and voluntary confessional statement of the accused person made either extra-judicially during investigations or made at the trial before the Court which is direct, positive and found by the Court to be true, or
(c) circumstantial evidence which is cogent, credible, consistent and compelling to irresistibly establish that no one else but the accused person committed the offence. See Lori v. State (1980) 8-11 SC, (1980) 12 NSCC, 269; Emeka v. State (2001) 32 WRN, 37, (2001) 6 SCNJ, 259; Igabele v. State (supra) also reported in (2006) 28 WRN, 1, (2006) 25 NSCC, 231; Fatilewa v. State (supra); Mohammed v. State (2007) ALL FWLR (Pt. 415) 1656; Joshua v. State (supra) also reported in (2010) 1 WRN, 41 @ 64; Igri v. State (2010) WRN 31 @ 47; Olabode v. State (2007) ALL FWLR (Pt. 389) 1301; Idiok v. State (2008) ALL FWLR (Pt. 421) 797.
I would like to say that the provisions of Sections 131, 132, 133(1) and 135 (1) and (2) of the Evidence Act and all the lofty and stringent judicial principles of law evolved and enunciated by the Courts over the years in their

interpretation and application of the provisions are predicated and based on the Constitutional provision in Section 36(5) of the 1999 Constitution (as altered) and the corresponding sections in previous constitutions, on the presumption of innocence in favour of a person charged with a criminal offence until he is proved guilty. By the provision, a person, charged before a Court of law in Nigeria with any criminal offence enjoys the rebuttable presumption of his innocence of the offence ab initio, and so has no duty or burden to prove his innocence before the prosecution satisfactorily discharged the burden of proof beyond reasonable doubt initially imposed on it by the statutory and Constitutional provisions. Akinfe v. State (1988) 3 NWLR (Pt. 85) 729; Aigbadion v. State (supra); Garko v. State (2006) 6 v. (Pt. 977) 524; Bello v. State (2007) 10 NWLR (Pt. 1043) 564; Igabele v. State (supra).

In this appeal, the complaints by the Appellant are that the Lower Court convicted the Appellant without an appraisal and evaluation of the complete or totality of the evidence before it. As a restatement of the very well-known position of the law, a trial Court, in

all cases, has primary function and duty to fully appraise the facts of a case and properly evaluate the totality of the relevant and material evidence adduced by the parties in line with established principles in order to draw necessary inferences and ascribe due probative value for the purpose of making findings and reaching decisions on the rights and obligations of the parties in the case. As a first instance Court, a trial Court has the unique position and enjoys the privilege of physically seeing and hearing the witnesses in a case give direct accounts on the facts relied on by the parties; watching their demeanour and noting the subtle and often influencing nuances, and so is in the best position to assess and evaluate the credibility of and reliability of the evidence given by such witnesses in arriving at its ultimate decision in the case. Muka v. State (1976) 5 & 10 SC, 305 @ 325; Ogoala v. State (1991) 2 NWLR (Pt. 175) 509; Adamu v. State (supra); State Ajie (2000) 7 SC (Pt. 1) 24; Bashaya v. State (1998) 5 NWLR (Pt. 990) 65; Adebayo v. Adusei (supra).
In the discharge of the primary duty to evaluate evidence, a trial Court is generally to

be guided by, among other factors, (a) whether the piece of evidence is admissible in law, (b) whether the evidence is relevant; (c) whether the evidence is credible; (d) whether the evidence is probable and (e) whether the evidence is conclusive on the facts in dispute.
See Mogaji v. Odofin (1978) 4 SC, 91, (1978) NSCC, 275; Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182; Akad Ind. Ltd. v. Olubode (2004) 4 NWLR (Pt. 862) 1; Osigwe v. Unipetrol Nig. Ltd. (2005) ALL FWLR (Pt. 267) 1525; Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 368.
The law remains that where a trial Court dutifully and properly discharged its primary duty in the appraisal of the facts and evaluation of the totality of the relevant and material evidence placed before it by the parties in a case in its decision, an appellate Court would have no justification and business to interfere with the evaluation by substituting its own views of the evidence for that of the trial Court. It is only where and when it is demonstrated on an appeal and the appellate Court is satisfied, that a trial either fails to properly evaluate all or some relevant and material parts or portions of the evidence

before it that the appellate would have, not only valid reason(s), but the duty to intervene to re-evaluate or evaluate the evidence in question for the purpose of ascription of the deserved probative and reaching the appropriate decision in the case. It is not the function of an Appellate Court to retry a case on the notes of evidence and set aside the decision of a trial Court merely on the ground that it would have reached a different conclusion on some or even all the evidence so long as the trial Court fully and properly, no matter the style used, appraised and evaluated the material evidence before it. See Ali v. State (1988) ALL NLR, 1; Ogunleye v. Oni (1990) 4 SC, 130; Adusei v. Adebayo (supra); State v. Ajie (supra); Bashaya v. State (supra); Saleh v. B. O. N. Ltd (2006) ALL FWLR (Pt. 310) 1600; Gabriel v. State (2010) 6 NWLR (Pt. 1190) 280; Igago v. State (1999) 12 SCNJ, 140.

Now, is the Appellant right that the Lower Court did not appraise or evaluate the complete or entire evidence on the record of proceedings? The answer to the question lies in the evidence adduced by the Respondent in proof of the offence the Appellant was charged with and

that adduced by the Appellant in defence thereof as well as the judgement of the Lower Court appealed against. Before a look at the evidence placed before the Lower Court, I would state that the Learned Silk for the Appellant is right that a review or summary of evidence adduced before a trial Court in its judgement is different and distinct from and so, is not the same and not a substitute for appraisal and evaluation of such evidence for the purpose of determining the probative value or worth to be ascribed to it in order to make necessary findings on the issues in a case that will form the basis of decisions to be reached by that Court. Whereas a review or summary of the evidence adduced before a trial Court in a judgement is merely to briefly narrate the respective cases presented by the parties in the evidence adduced by them in support of the facts in pleadings or offences in the charge, is introductory, appraisal and/or evaluation of the evidence involves an analysis, scrutiny, and assessment of the probative value or worth of each material evidence given by the parties in terms of admissibility, credibility, relevance, probability and conclusiveness in

order to form the basis of the final decision to be reached by the Court in the case. In addition to the case of Atoyebi v. Gov., Oyo State (supra) cited by the Learned SAN for the Appellant on the point, seeOgunleye v. State (1991) 3 NWLR (Pt. 177) 1; Ali-Balogun v. FRN (2010) LPELR-3745(CA); Atiku v. State (2010) 8 NWLR (Pt. 1199) 241 @ 288; Udo v. Akpabio (2013) LPELR-22119 (CA).

It also needs to be stated that the Appellant who complains of the want of the evaluation or proper evaluation of the evidence placed before Lower Court in this appeal, by law, bears the burden to specifically identify the evidence not evaluated or improperly evaluated by that Court and demonstrate, convincingly and satisfactorily, that if the evidence was evaluated or properly evaluated, the decision by the Lower Court would have been different and in his favour. See Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471 @ 478; Okoro v. Nwachukwu (2006) ALLFWLR (Pt. 343) 1785.

A summary of the material evidence adduced by the Respondent in proof of the offence against the Appellant, through the seven (7) witnesses called by it, is that the Appellant had put his hand and mouth

into the Prosecutrix’s vagina twice in his office toilet and outside at the school where he works and the Prosecutrix, who was two (2) years and eleven (11) months old at the time, was a pre-nursery pupil. Documentary evidence was tendered and admitted from the prosecution witnesses in proof of the case against the Appellant.

For the Appellant, the case put forward was a frontal denial of the allegation against him through statement to the police, his evidence at the trial and evidence of his colleagues who work at the school. I intend to consider whether the Appellant has discharged the burden of showing that the Lower Court indeed did not evaluate the totality of the material evidence before it by looking at the specific evidence identified in the above submissions by the Learned SAN on the issue. As may be remembered, the primary complaint, as set out at paragraphs 4.05 and 4.06 on page 4 of the Appellant’s brief, is that the Lower Court acted solely on the examination-in-chief of the Prosecutrix and did not consider her evidence under cross-examination and jettisoned the oral evidence of other prosecution and the defence of the Appellant.

Well, after a review or summary of the evidence adduced by the parties before it, the Lower Court proceeded in its judgement thus:-
“Now I have raised a sole issue for determination from the issue raised by this by the defence and state which is whether for the available evidence the prosecution has proved its case beyond reasonable doubt in this case of defilement brought against the defendant Adegboyega Adenekan.
The essential ingredients that the Prosecution must prove beyond reasonable doubt for a successful conviction for the offence of defilement of a girl under the age of eleven (11) years include:-
(a) That the Accused had sex with the child who was under the age of eleven (11) years.
(b) That there was penetration into the vault of the vagina.
The evidence of the child must be corroborated.
The evidence for defilement is the same as in rape except that for defilement it is immaterial whether the act was done with or without the consent of the child. See Boniface Adonike vs. The State 2015 LPELR-24281 SC.
In our present case the victim was alleged to have been defiled by the Defendant when she was two years

eleven months (2 years 11 months).
To prove the suit of the Accused Person the Prosecution had seven (7) witnesses PW1 – PW7 to testify. The victim was PW4 who gave direct evidence “that Mr. Adenekan put his mouth in my wee-wee and he put his hand in my wee-wee. He also put his mouth inside Jenifa’s wee-wee. He covered my mouth like this, the first time he did it he took me back to my class. The second time I ran back. It was two times. The first time he did it inside his office which was the toilet and the second time he did it in the hall which was outside.”
The witness pointed at her vagina as her wee-wee and also pointed at her vagina indicating when Mr. Adenekan wee-wee is on his body. The victim said “the first time before we went inside the office I was pulling myself out. “He said be careful I want to show you something”.
Witness further said felt pain when he Mr. Adenekan was putting his hand inside her wee-wee. I quote her. “I was wearing my Chrisland school cloths. He was pulling it down I was pulling it up. He had so much strength so he pulled it down and he put his hand in my wee-wee and it

was really hurting. I scream and he covered my mouth like this”
Second intercourse could be by penis, candle, cucumber or any blunt object. This victim has said that Adenekan put his hand in her wee-wee and it was painful. She screamed but he covered her mouth. As evidence by the genital findings in Exhibit E3 which talked of whitish patches around the urethral opening, hymen with notches at 3 0’clock and 9 0’clock simply put healing wounds were evident in the hymen. It also talks off generalized hypernic tender vulva.
Sexual intercourse is principally the insertion and thrusting of the penis into the vaginal for sexual pleasure, reproduction or both. This is also known as vaginal intercourse or vaginal sex. However there are other forms of penetrative sexual intercourse which include, Anal sex (penetration of the anus by the penis). Oral sex (penetration of the mouth by the penis or oral penetration of the family genitalia). Fingering (sexual penetration by the finger).
In our present case there is certainly an indication of penetration.
Penetration in Black’s Law Dictionary 8th Edition defines penetration as it

relates to criminal law as the entry of the penis or some part of the body or a foreign object into the vagina or other bodily orifice. Authorities one argued on the general principle of the law of rape that there must be proof of penetration no matter how slight before the offence of rape can be said to be proved. See Rabiu vs. The State 2004 LPELR-7382. Penetration however slight in sufficient and it is not necessary to prove injury on the rupture of the hymens to constitute the crime of rape.
In our present case penetration is corroborated by the Exhibit E1-E3. The evidence of the victim was not shaken as to the person who put his finger in her wee-wee by name Mr. Adenekan. There are no two Mr. Adenekan in the school.
This medical report corroborate the victim’s evidence Exhibit A1 and A2 Certified True Copy of CD and Exhibit B which is the Psychological evaluation report of survivor rendered by PW2 further corroborate the evidence of the victim. So I disagree with the defence argument that the victim’s evidence is not corroborated.
The Defendant is well known to the victim. The Defendant admitted entering the victim’s class

in pre-school I and not in pre-school 2. He said he never entered the victim’s classroom. That he stands at the entrance of the door wave at the victim and her two other friends Jenita and Precious. These two pupils are no longer in the school.
He said he knew some of the children despite some of the security means put in place by the school. He confirmed knowing the three girls Precious, Jenifa and the victim. These three children names resolve around Mr. Adenekan. Precious was the child the Defendant said he saw when she was crying. He consoled her and thereafter was going to her class to greet her and ask the teacher how she was doing.
Jenifa whom the victim says is her best friend was the girl the victim said the Defendant put his mouth in her wee-wee. For some unknown reason these two children were withdrawn from the school. The third child is the victim in this instant case.
The Defendant during cross examination confirmed checking on the victim in her class. He admitted going to the children’s class although it is not the tradition for male teachers to visit the girl child in their class regularly as he did.
The

Defendant knows the victim to be an intelligent child and he confirmed that the victim is more active and talks better in her previous class when compared with other children in her class, I wonder how the Accused Person knew so much of the victim. He was not her teacher. Let me touch on the witnesses of the Defence. These were all teachers in the school. They only came to give support and protection to a colleague. Their evidence was specifically targeted to protect the school.
DW1:
Prosecutor: Who pay your salary
DW1: The management of Chrisland pays my salary.
Prosecutor: It will be in your interest to protect the interest of the management, yes or no?
DW2:
Prosecutor: Chrisland pays your salary?
DW1: Yes
Prosecutor: You will not want to lose this salary
DW2: I will not like to do that.
Prosecutor: You wouldn’t want to do anything to affect/smear the image of the school?
Dw2: That is right.
Prosecutor: And that is why you are here?
DW2: Yes.
DW4: I work for an Organization and one of the first things you will check is the loyalty. I am loyal to my Organization.
The Defendant

exhibited arrogance in the cause of his testimony. He exhibited so much confidence in the testimony of his fellow teachers who he called as witnesses.
I have no doubt in my mind that this Defendant Adegboyega Adenekan is the same Mr. Adenekan who the victim says put his hand in her wee-wee.
The prosecution has to the satisfaction of this Court proved beyond reasonable doubt for a successful conviction of the Defendant and the defendant is accordingly convicted.”

What may appear apparent in the above extract of the judgement by the Lower Court is that the evidence given by the PW4; the Prosecutrix, features prominently in the decision contained therein. This is not strange as a style in assessment or evaluation of evidence in criminal cases where, as stated elsewhere in this judgement, the prosecution bears the burden of proof beyond reasonable doubt which is static throughout the trial and does not dependent on the state of facts stated by both parties in the proof of evidence and the defence. Before a trial Court considers any other evidence which goes to the defence of an accused person, it has the duty to assess and evaluate the totality or

entirety of the material evidence adduced by the prosecution in order to find out if it was credible, cogent and sufficient to discharge the burden of proof beyond reasonable. Until a trial Court evaluates the evidence adduced by the prosecution and makes a finding that the burden and standard of proof of an offence was satisfactorily discharged as required by the law, a consideration of any evidence which goes to the defence of an accused person will not arise in a judgement on whether he is guilty or not of the offence(s) he was tried for. In the case before the Lower Court, due to the nature of the offence the Appellant was tried for, the evidence of the PW4 was the primary and direct evidence for the prosecution of the allegation of the commission by the Appellant and it therefore deserves the prominence accorded it in the assessment or evaluation of the evidence adduced by the prosecution in the judgement. In addition, the Lower Court, considered the evidence of the other prosecution witnesses who merely tendered documentary Exhibits which were used and assessed in the judgement. Similarly, as can be observed, the Lower Court also considered and

evaluated the primary defence put up by the Appellant that he did not go to the class of PW4 to take her away. It must be provided out that the proof of offence like the one the Appellant was charged with largely depends on the primary evidence of the two (2) people involved, i.e., the victim and the alleged offender, because it is one ordinarily and usually committed in secrecy and out of view of other persons as was stated in the case of Lucky v. State (supra) cited by the Learned Counsel for the Respondent, wherein the Apex Court stated that: –
“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 prying eyes. It is rare to get a witness to give evidence on oath that he saw the appellant have sex with the Prosecutrix.”
The position stated by the Supreme Court applies more in situations like the case of the Appellant, where the victim or the Prosecutrix involved, is a child, and the accused person would be in clearly domineering and over powering position over the victim to lure or force her into secrecy. As seen in the extract of the judgement of the

Lower Court above the pith of the defence set up by the Appellant was considered and adequately assessed/evaluated by that Court when it stated: –
The Defendant is well known to the victim. The Defendant admitted entering the victim’s class in pre-school I and not in pre-school 2. He said he never entered the victim’s classroom. That he stands at the entrance of the door wave at the victim and her two other friends Jenita and Precious. These two pupils are no longer in the school.
He said he knew some of the children despite some of the security means put in place by the school. He confirmed knowing the three girls Precious, Jenifa and the victim. These three children names resolve around Mr. Adenekan. Precious was the child the Defendant said he saw when she was crying. He consoled her and thereafter was going to her class to greet her and ask the teacher how she was doing.
Jenifa whom the victim says is her best friend was the girl the victim said the Defendant put his mouth in her wee-wee. For some unknown reason these two children were withdraws from the school. The third child is the victim in this instant case.
The

Defendant during cross examination confirmed checking on the victim in her class. He admitted going to the children’s class although it is not the tradition for male teachers to visit the girl child in their class regularly as he did.
The Defendant knows the victim to be an intelligent child and he confirmed that the victim is more active and talks better in her previous class when compared with other children in her class, I wonder how the Accused Person knew so much of the victim. He was not her teacher.
This was a sufficient appraisal or/and assessment of the fulcrum of the defence set up by the Appellant that he did not commit the offence he was charged with, since it was considered along with and vis-a-vis the uncontroverted evidence of PW4 on what the Appellant did to her, whether at his office or elsewhere in the school premises. The evidence of the other witnesses called by the Appellant did not detract from the fact of what the PW4 said the Appellant did to her, but merely dwelled on the personal knowledge and opinion they have of the Appellant, as a colleague and co-worker in the school. At this, the Lower Court considered and

assessed by returning the finding that “These were all teachers in the school. They only came to give support and protection to a colleague. Their evidence was specifically targeted to protect the school”, for the reasons set out subsequently in the judgement.
I must emphasize that because a particular style, mode or manner or the other was not employed in the appraisal, assessment or evaluation of evidence by a trial Court, does not mean that evidence was not properly or at all, assessed or/and evaluated before or in reaching a decision. In Solola v. State (2005) 5 SC (Pt. 1) 135, (2005) 2 NWLR (Pt. 937) 460; Edozie, JSC stated the law that: –
“In evaluation of evidence called by the parties, it is at the discretion of the trial Court and this is a matter of style for it to commence with the case of the prosecution or the defence and that procedure without more, does not amount to shifting the burden of proof.”
Evaluation of evidence simply means and entails the art of consciously considering the totality of the relevant and material evidence adduced by the parties, assessing same by assigning or ascribing probative

value to it and making findings based thereon. In Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) 458, (2010) LPELR-3805(CA), this Court, per Ogunbiyi, JCA explains what evaluation of evidence entails further that: –
“Interestingly, the evaluation of evidence and finding of fact do not have to cover numerous pages, or rather a substantial portion, of the judgement in as much as they are properly, done and carried out as required by law. Unlike a mere reviews of evidence, its actual evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. Above all, there must be an indication on record as to show the Court arrived at its conclusion of preferring one piece of evidence to the other.” The Lower Court, in the re-produced part/portion of its judgement has shown on the record, the reasons why it preferred the evidence adduced by the prosecution; particularly that of PW4; the victim/prosecutrix, to that of the defence; by the Appellant of the flat denial of the offence and of other defence witnesses which did not go to the specific

disprove of the fact of the offence charged. The reasons given by the Lower Court go to support the finding and conclusion reached on the basis of the evidence adduced before it by both the Respondent and the Appellant. I therefore, do not agree with the Learned Silk that the Lower Court convicted the Appellant for the offence he was tried without the appraisal or evaluation of the complete evidence on the record.
As shown above, the Lower Court, in its own style, properly and sufficiently appraised or evaluated the material and relevant evidence adduced by the parties before reaching the decision to convict the Appellant. Issue I (one) is resolved against the Appellant.

On Issue II (two), which appears to be primary complaint of the Appellant in the appeal as the entire submissions in the Appellant’s brief are targeted at the alleged failure by the prosecution evidence to prove the offence against the Appellant beyond reasonable doubt, Section 137 of the Criminal Law of Lagos State, 2015 under which the charge against the Appellant was tried provides that: –
“Any person who has sexual intercourse with a child is guilty of a felony

and is liable to imprisonment for life.”
By these provisions, defilement of a child, means having sexual intercourse with the child, defined under Section 416 of the Law to have the meaning assigned to it in the Child’s Right Law of Lagos State; as a person under the age of 18 years. A child for the purpose of the offence of defilement punishable under Section 137 is therefore a person; male or female, who at the time of the sexual intercourse in question, is/was under the age of 18 years. However, the Criminal Law of Lagos State, 2015 did not define what constitutes “sexual intercourse” for the purpose of the offence of defilement. At page 1173 of Oxford Advanced Learners Dictionary, 6th Edition by A.S Hornby, “sexual intercourse’ is defined as –
“the physical activity of sex, usually describing the act of a man putting his penis inside a woman’s vagina.”
The 8th Edition of Black’s Law Dictionary, at page 827, defines “intercourse” to include: –
“2. Physical sexual contract, esp. involving penetration of the vagina by the penis.”

Then in Ahmed v. Nigerian Army, (2016) 17 NWLR (Pt. 540) 34, @ 50-1, (2017) ALL FWLR (Pt. 869) 813. “Intercourse” was defined by the Supreme Court as “physical sexual contact, especially involving the penetration of the vagina by the penis.”
“Carnal knowledge” was defined by the Apex Court at the same page 50 as “Sexual intercourse especially with an underage female” for the purpose of the offence of defilement under Section 78 of the Armed Forces Act, 2004 for which the Appellant in that case was convicted. For the offence of defilement under Section 317 of the Criminal Law of Lagos State, 2015, therefore, the essential element or ingredient that constitutes it and which must be proved by the prosecution beyond reasonable doubt, as required by law, is –
(a) that an accused person had carnal knowledge of or sexual intercourse with a person under the age of Eighteen (18) years, as defined above.
As may be observed, the offence of defilement under Section 317 is one which is committed by the physical activity involving penetration of the vagina of a female person, for the purpose of this appeal, by the

penis of the person accused of the commission of the offence.
“Penetration” is defined in 8th Edition of Black’s Law Dictionary, at page 1169, as: –
“Criminal law. The entry of the penis or some other part of the body or a foreign object into the vagina or other bodily orifice.”
So penetration of the vagina of PW4 by the penis of the Appellant and/or his mouth or hand, as the facts and evidence of PW4 show, will constitute defilement since it is not in dispute that at the material time, she was a person under the age of eighteen (18) years.
The proof required of penetration is that of evidence of entry of either the penis, or some other part of the human body or a foreign object, into the vagina or other bodily orifice.

The case of the Appellant is that the charge against the Appellant was not proved by compelling and reliable evidence to establish the guilt of the Appellant and insist that there was no evidence that PW4 left her class at any specific time to the Appellant’s office, relying heavily on the evidence of DW3; the Class Assistant, that PW4 did not leave the class without her knowledge. All

that needs be said is that whether DW3 knew or not that PW4 left her class, the unchallenged, consistent and cogent evidence of PW4, who knew the Appellant very well as her friend and who the Appellant admittedly also knew well along with her friends Jenita and Precious, has undoubtedly demonstrated what the Appellant did to her on the two occasions he was alone with her. The evidence of DW3, who supposedly was to take care and look after all the children in her class while in school, did not go to the fact of whether the Appellant indeed did what PW4 said happened to her when she and her friend Jenita were with him alone. PW4; a two years, eleven (11) months baby at the time of the incident was able to remember vividly what the Appellant did to her and at four (4) years of age, gave an unshaken account in her evidence before the Lower Court, substantially remembering every material detail which was not controverted even under cross-examination.

Learned SAN for the Appellant has argued that there are contradictions in the evidence of PW4 when she said she was in the Appellant’s office with her friend Jenita and later said she did not enter the

office. The law, as rightly stated by him, is that a piece of evidences is said to contradict another if and when it affirms the opposite of what the other stated and the two (2) cannot be true or exist at the same time, because they are inconsistent and mutually repugnant. See Isiekwe v. State (1999) 9 NWLR (Pt. 616) 43 @ 69; Stephen v. State (2009) ALL FWLR (Pt. 491) 962 @ 976; Asanya v. State (supra); Omanga v. State (2006) ALL FWLR (Pt. 306) 930 @ 948. The law is also trite that for any contradiction in evidence to affect its credibility and reliability, it must be material to the fact or issue to be decided in a case and so substantial in the determination of the issue or case as to create doubt in criminal cases, on the guilt of the accused person. Onuoha v. State (1989) 1 NSCC, 411; Awopejo v. State (2000) 6 NWLR (Pt. 659) 1; Bakoshi v. Chief of Naval Staff (2004) 15 NWLR (Pt. 896) 268; Uwagboe v. State (2007) 6 NWLR (Pt. 1031) 606; Ugwanyi v. FRN (2010) 14 NWLR (Pt. 1213) 397; State v. Salawu (2011) 18 NWLR (Pt. 1279) 883.
The seeming contradiction in the evidence of PW4 on whether or not she entered the Appellant’s office is not material on

whether the Appellant did in fact, commit the offence he was charged for because the particular place in the school premises where the offence was committed is not crucial or vital in the proof of its commission. In any case, PW3, had stated in evidence under cross-examination that PW4 had taken her to the Appellant’s office and toilet when she went to the school with police officers in the course of their investigation of the incident. PW4, under cross-examination at page 270 of Vol. 1 of the Record of Appeal, was asked the question:
“Q. Have you entered Mr. Adenekan’s office before?” And she answered: –
“A. Its only when he did bad things to me.”
This evidence has clearly explained the earlier answers PW4 gave as to whether she entered the Appellant’s office or not and shows how consistent she was on the point.
In addition, PW7; the Investigating Police Office (IPO) had stated, inter alia, in evidence-in-chief that: –
“After all that the child was taken to mirabell for medical examination. So while they have gone for medical examination the defendant was brought to my office, and he

was also interrogated and made his statement, on the arrival of the child from mirabell, we all left for the scene of the crime at VGC (Victoria Garden City) and getting to VGC we met with the head teacher who we told why we were in their school. The child was able to take us to her class in the school and she was able to take us to the defendant’s office upstairs. While we got to the defendant’s office upstairs, the child was able to identify the table and chair of the defendant. Even though there were 3 chairs and 3 table (sic) in the office she was able to point the defendant chair and the table and also take us to the restroom where she claimed the incident happened inside the office.”(underline provided)
This piece of unchallenged evidence shows that PW4 not only entered the Appellant’s office before showing PW7 and others the office, but know exactly his table out of three (3) and the toilet which she mentioned in her evidence before the Lower Court. So the fact that under cross-examination she faltered and said she did not enter the office at a particular point is completely not material to the proof of what she said the

Appellant did to her in that office and toilet which she identified practically without any lead or difficulty. It is not a contradiction that affects the credibility and reliability of the evidence of PW4. Ejiwunmi, JSC, speaking for the Apex Court, had pointed out in Agbo v. State (2006) 1 SC (Pt. IV) 73, (2006) 6 NWLR (Pt. 977) 545 that: –
“The law is settled that it is not every trifling inconsistency in the evidence of the prosecution witnesses that could be fatal to is case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issue in question before the Court and thus create doubt in the mind of the trial Judge that an accused is entitled to benefit therefrom. See also Wankey v. State (1993) 5 NWLR (Pt. 295) 542; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Dibie v. State (supra); Ubani v. State (2004) FWLR (Pt. 91) 1533.”

The Learned Silk for the Appellant also contends that failure by the prosecution to call Jenita; PW4’s friend, who saw what the Appellant did to her, was fatal to the case since, according to him, she was a vital witness. In Ochiba v. State (2011) NSCQR, 1,

(2011) 17 NWLR (Pt. 1277) 663, Adekeye, JSC stated that: –
“A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.” See also State v. Nnolim (1994) 5 NWLR (Pt. 345) 394; Imhanria v. Nig. Army (2007) 14 NWLR (Pt. 1053) 76; Edoho v. State (2004) 5 NWLR (Pt. 865) 17; Ogudo v. State (2011) 12 MJSC (Pt. 1) 108, (2011) LPELR-860(SC).
By the judicial definition of a vital witness, he is one whose evidence is necessary, will unravel and establish an issue of fact, one way or the other because he knows something which is important or material on the issue. The evidence of such a witness is somehow, indispensable and its absence will leave some doubt on a vital or crucial issue which requires proof in a case. According to the Learned SAN for the Appellant, the essence of the evidence of Jenita is material to the resolution of two (2) crucial issues of –
(i) Whether the Prosecutrix was with the Appellant in his office.

(ii) Whether the Appellant put his hand and mouth in the we-we of the Prosecutrix.

However, he did not convincingly demonstrate that the evidence of Jenita on these issues was the only evidence which could resolve them so as to become indispensable, as vital and material evidence in the case without which there could be doubt on the mind of the Lower Court about the guilt of the Appellant. Learned SAN overlooked the consistent, strong and potent evidence of the PW4 which remained substantially uncontradicted on what the Appellant did to her on the two occasions he was with her alone and with Jenita. It may be recalled that I have before now stated and shown that the place or venue where the Appellant did to PW4 what her cogent evidence revealed, was not material in proof of the crucial and vital fact of the offence against him. Even in the absence of Jenita, PW4 at her age, competently, coherently, consistently and unwaveringly gave cogent and pungent evidence of what the Appellant did to her to prove that he, in fact, put his hand and mouth in her we-we, beyond reasonable doubt. In these premises, Jenita was/is not a vital witness whose evidence was

indispensible in the proof of the case against the Appellant beyond reasonable doubt before the Lower Court and so failure or omission to call her to testify at the trial, was not fatal to the case of the Respondent.

It has also been argued that the evidence of PW4 that the Appellant put his hand and mouth in her we-we fell short of penetration, a crucial element of sexual intercourse as stated in Posu v. State (supra); Isa v. State (2016) 6 NWLR (Pt. 1508) 243 and Ogunbayo v. State (supra). The principle stated in these and other cases which were decided on the offence of rape is that sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. I am also aware of the statement in Adonike v. State (supra) that the evidence for defilement is the same as in rape except that for defilement, it is immaterial whether the act was done with or without the consent of the child.
The Learned SAN is right that by the hallowed and immutable doctrine or principle of stare decisis firmly established in our judicial procedure and practice, all Courts below the Apex Court in the judicial hierarchy, are legally bound and have the

obligation to abide by, follow and apply principles of law stated and laid down by it in appropriate cases. See Abegunde v. O. S. H. A. (2015) 8 NWLR (Pt. 1461) 314; Dada v. FRN (2016) 5 NWLR (Pt. 1506) 564; Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179; Anekwe v. State (2014) 10 NWLR (Pt. 1415) 353. In this regard, both the Lower Court and this Court, being Courts below the Apex Court in the judicial ladder, are bound to adopt and apply the judicial definitions of sexual intercourse and the requirement of penetration, as an essential element in proof thereof as stated in the cases of Iko v. State (supra); Ogunbayo v. State (supra), Posu v. State (supra) and Isa v. State (supra). I have noted however, that in none of these cases was the word “penetration” defined, or described for the purpose of sexual intercourse or carnal knowledge defined therein. But in all of them, it is stated that the slightest penetration is sufficient to conclude that there was penetration even if the hymen was not raptured or if there was no emission of semen. This position is in accord with the definition of “penetration” referred to earlier in

Black’s Law Dictionary, 8th Edition, at page 1169 that (once more):-
“Criminal law. The entry of the penis or some other part of the body, or a foreign object into the vagina or other bodily orifice.”
In the peculiar circumstances and facts of the case before the Lower Court, that the victim was barely a baby of two (2) years, eleven (11) months at the time of the incident, who vividly remembered, unshakably and consistently described what the Appellant did to her, this definition meets the requirement of penetration for the purpose of the offence of defilement under Section 317 of the Criminal Law of Lagos State, 2015 for which the Appellant was convicted.
In that regard, the evidence of the use by the Appellant of his hand and mouth in the vagina (we-we) of PW4; (the Prosecutrix) qualifies as evidence of penetration for the offence he was convicted. For that reason, I am unable to agree with the Learned SAN that the evidence falls short of proof of sexual intercourse.

It is also the case of the Learned Silk that the Lower Court was wrong in convicting the Appellant on the evidence of PW4 without corroboration. In the

case of Posu v. State (supra), the Apex Court; per Rhodes-Vivour, JSC, concisely defined the word “corroboration” as follows:-
“Corroboration means evidence which confirms the evidence of the prosecutrix.” See also Iko v. State (supra); Ogunbayo v. State (supra); Igbine v. State (1997) 9 NWLR (Pt. 519) 101; Amadi v. State (1993) 8 NWLR (Pt. 314) 644; Musa v. State (2013) 9 NWLR (Pt. 1359) 214; Lucky v. State (supra).
The law, as it stands, is that the sworn testimony or evidence of a child, even in sexual offences, does not as a matter of law, require corroboration in order to be accepted, acted on and relied upon by a trial Court for the conviction of an accused person. In Akpan v. State (1972) 4, SC, 6, (1971-1972) 7 NSCC, 201 Lewis, JSC, adopted the statement by Goddard, LCJ, in R. V. Campbell (1956) 2 QB, 432 that: –
“The sworn evidence of a child need not as a matter of law be corroborated, but a jury should be warned, not that they must find corroboration, but that there is a risk in acting on the uncorroborated evidence of young boys and girls, though they may do so if convinced that the witness is

telling the truth.”
See also Posu v. State (supra); Iko v. State (supra); Arebamen v. State (1972) 2 SC, 35; Mbele v. State (1990) 7 SC (Pt. 1) 1, (1990) 4 NWLR (Pt. 145) 484; Ogunbayo v. State (supra); Jegede v. State (2001) 1 NWLR (Pt. 695) 623.
The Evidence Act, 2011 which regulates and governs the issue of evidence generally in trials before the Courts in Nigeria and applicable to the trial before the Lower Court, in Section 209 provides that: –
“209(1) In any proceedings in which a child who has not attained the age of fourteen 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.
(2) A child who has attained the age of fourteen years shall, subject to Sections 175 and 208 of this Bill give sworn evidence in all cases.
(3) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of subsection (1) of this section and given on behalf of the

prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.
(4) If any child whose evidence is received under this section willfully gives false evidence in circumstances that he would, if the evidence had been given on oath have been guilty of perjury, he shall be guilty of an offence under Section 191 of the Criminal Code and on conviction shall be dealt with accordingly.”
By the prescription in subsection(1), a child who has not attained the age of fourteen (14) years at the time he/she was called and tendered before a Court as a witness to testify or give evidence in a case; civil or criminal, “shall not be sworn and shall give evidence otherwise than on oath or affirmation”, only if in the opinion of the Court, he/she is possessed of sufficient intelligence to justify the reception of his/her evidence and understands the duty of speaking the truth. The provisions clearly, expressly and simply says that a child of less than fourteen (14) years of age shall not be sworn or affirmed and shall not give evidence on oath or affirmation as a witness in a trial before a Court and

can only testify or give evidence as a witness in a case if the Court finds him/her and is of the opinion that he/she is possessed of sufficient intelligence and understands the duty of speaking the truth. The Evidence Act, in Subsection (1), does not allow or permit and unequivocally, outlaws that a child under the age of fourteen (14) years of age shall give evidence or testify as a witness in a trial before a Court of law, on oath or affirmation. The deliberate use of the word “shall” in the short sentence of the provision prohibiting the swearing or affirmation of such a child and the giving of his/her evidence or testimony on oath or affirmation, explicitly shows and mean that the provision is mandatory and must be complied with and applied to such a child tendered to give evidence or testify in any trial before a Court. By the ordinary principle or canon of statutory interpretation, the word “shall” is used or employed by the legislature in a statute, to show what is usually compulsory and mandatory in application. See Katto v. CBN (1991) 9 NWLR (Pt. 214) 126; Omokeodo v. IGP (1999) 6 NWLR (Pt. 606) 467; Bamaiyi v. A. G. Federation

(2001) 12 NWLR (Pt. 727) 468; Bakoshi v. Chief of Naval Staff (2004) 15 NWLR (Pt. 896) 268; Onochie v. Odogwu (2006) 2 SCNJ, (1996) 6 NWLR (Pt. 975) 65. Because the provisions of Subsection (1) are mandatory, the Lower Court bears the judicial obligation and legal duty to abide by and comply with them in all trials of cases before it by application to a child who is under the age of fourteen (14) years called, presented, or tendered as a witness to give evidence or testify in a case. See Akpagher v. Gbungu (2015) 1 NWLR (Pt. 1440) 209; A. P.C. v. INEC (2015) 8 NWLR (Pt. 1462) 531; Azubuike v. Govt., Enugu State (2014) 5 NWLR (Pt. 1400) 364.
In this appeal from the Record of Appeal, at the time PW4 was called, presented and tendered before the Lower Court in the trial of the Appellant, to testify or give evidence, she was four (4) years of age and so clearly, a child under the age of fourteen (14) years to who the provision of Section 209(1) above was applicable. From the record at page 257, lines 9-25 of Vol. 1 of the Record of Appeal, PW4 was sworn-in as a witness to give evidence and testify in the trial by the Lower Court. PW4 therefore gave

sworn evidence or testimony as a child of only four (4) years of age and under fourteen (14) years of age. One then ask the question at this stage what is the legal consequence of the omission or failure by the Lower Court to comply with and apply the provisions of Subsection (1) to PW4 on her evidence or testimony given on oath?
I would venture to say that since the Lower Court, from the Record of Appeal, was of the opinion that PW4 was possessed of sufficient intelligence and understood the duty of speaking the truth to justify the reception of her evidence at the trial, and by virtue of the provisions of Section 175(1) of the Evidence Act, PW4 was a competent witness who the Lower Court considered capable of understanding the questions put to her and giving rational answers to them in spite of and despite her tender age of being under fourteen (14) years, the evidence of PW4 is admissible on the ground that it is relevant to the charge and offence the Appellant was arraigned before the Lower Court. The provision of Section 209 (1) merely provides for the procedure for giving evidence or testimony by a child under the age of fourteen (14) years, as a

witness in proceedings of a Court of law and did not exclude the reception of such evidence or testimony given on oath or affirmation by the child. See Omosivbe v. COP (1959) WNLR, 209 @ 211-2; Agenu v. State (1992) 7 NWLR (Pt. 256) 749 @ 761; Akpan v. State (1967) NWLR, 185 @ 187, (1967) 5 NSCC, 111 @ 113-4; Okoye v. State (1972) 12 SC, 115 @ 125-6, (1972) 7 NSCC, 717 @ 721.
By the provision of Section 209 (2) of the Evidence Act, a child who has attained the age of fourteen (14) shall, subject to Sections 175 and 208 of the Act, give sworn evidence in all cases. For the purpose of the provision, a child of fourteen(14) years of age, shall like all other competent adult persons/witnesses, give evidence on oath or affirmation which will not ordinarily require corroboration and is sufficient, alone, in appropriate cases to ground a conviction for an offence. Omosivbe v. COP (supra); Garko v. State (2006) 6 NWLR (Pt. 977) 524; Sule v. State (2009) 17 NWLR (Pt. 1169) 33. Then, there is subsection (3) of Section 209 which provides that:-
(3) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of subsection

(1) of this section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.
The provision simply prescribes that an accused person shall not be convicted for any offence on the evidence or testimony of a child under the age of fourteen (14) years of age whose unsworn or affirmed evidence was received under the provision of Subsection (1) unless it is corroborated by some other material evidence in support of such testimony or evidence implicating him. Corroboration is therefore statutorily required for the unsworn testimony or evidence of a child under the age of fourteen (14) years for the conviction of an accused person for any offence. The corroboration required in some other material evidence in support of the testimony or evidence implicating the accused person in the commission of the offence he was charged with. See Nwambe v. State (1995) 3 NWLR (Pt. 384) 385; Dagayya v. State (2006) 7 NWLR (Pt. 980) 647; Ogunbayo v. State (supra); Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584. The salient point to be noted in the provision of Section 209 (3) is that

corroboration is required for the unsworn evidence or testimony of child who has not attained the age of fourteen (14) years at the time of the testimony or giving evidence, for the conviction of an accused person charged with any offence. So an accused person cannot validly be convicted for any offence on the unsworn evidence or testimony of a child under the age of fourteen (14) years, alone and without some other material evidence in support thereof implicating him. See Akpan v. State (supra); Shazali v. State (1988) 5 NWLR (Pt. 693) 164 @ 175. (1988) 19 NSCC (Pt. 3) 234 @ 242; Ogunbayo v. State (supra); Ikeogu v. R. (1962) 1 SCNLR, 431; Okabichi v. State (1975) 3 SC, 125.
In this appeal, since PW4 was a child under the age of fourteen (14) years at the time of her evidence or testimony, her evidence, though given on oath, falls within the purview of the provision of Section 209 (3) to statutorily require corroboration for the conviction of the Appellant to be valid and sustainable in law.

The Lower Court in the judgement appealed against found that there was corroboration required by law to support and confirm the evidence of PW4 that the Appellant

committed the offence he was charged with. As seen in the judgement, the Lower Court held, inter alia, that: –
In our present case penetration is corroborated by the Exhibit E1-E3. The evidence of the victim was not shaken as to the person who put his finger in her wee-wee by name Mr. Adenekan. There are no two Mr. Adenekan in the school.
This medical report corroborate the victim’s evidence Exhibit A1 and A2 Certified True Copy of CD and Exhibit B which is the Psychological evaluation report of survivor rendered by PW2 further corroborate the evidence of the victim. So I disagree with the defence argument that the victim’s evidence is not corroborated.”

As shown earlier, Exhibits A1 and A2 are copies of video compact Disc of the interview conducted with PW4, Exhibit B was the psychological evaluation report on PW4 while Exhibits E1-E3 is the medical report on PW4 from Mirabell Centre tendered through PW5 by the defence at the trial. In her evidence in-chief, PW5, said, inter alia,
“A: My lord the client was referred from Ikeja police division on the 24th of November 2016, and she was seen at mirabell center. The

client declare that the perpetrator put his WEWE in her mouth and she was asked to describe the WEWE and she pointed to her vaginal, also we showed her dummy penis for us to get what she was saying. The client declared that he put his WEWE in her vaginal, that’s her WEWE and also the perpetrator put his mouth in her WEWE, that was the child declaration. On general examination when checking the child we found a female child calm, intelligent, not pale, that is the blood level was okay. (afebrile) She was not hot when touched and she was not in any distress as at the time of examination and she was well hydrated. On examining the child from head to toe there was no fresh findings found related to the case. My lord in my systemic examination that is where I found the significant findings. The genital area which is the vaginal area, there was a whitish patches around the uretra open. Uretra open is where the urine comes out. There was annular hymen with nutches at 3:00 o’clock and 9:00 o’clock. My lord there was generalize hyperemia, that is redness on the vulva and pain when touching.
A: Modify meatotomy position means that the patient will

lie back on the bed and the two legs will be place in a frog like position, as if someone wants to deliver. Just to expose the boarder in the vaginal area. On physical examination the genital area was not in steady state
Q: Can you explain further?
A: My lord as I have said around the uretra open where the urine comes out there were whitish patches which suppose not to be there.
Q: Can you explain to the Court what you mean by whitish patches, we are laymen here when it comes to medical terms?
A: My lord the whitish patches they are scaly skin folds which is suppose not to be around that region. It is suppose to be as a normal skin.
Q: What could be the reason for the presence of that whitish patches?
A: My lord it can be due to an assault to the area.
Q: Continue with your explanation?
A: My lord in further examining the genital area, there was generalize hyperemia which means redness. There was redness all over which suppose not to be and on touching there, there was tenderness, that is pain on touching. On parting the vaginal lips for us to see the opening of the vaginal which we call the introitus, on parting it we

found the annular hymen which is the shape of the hymen and there were nutches at 3:00 o’clock and 9:00 o’clock.
Q: Explain what is expected of the hymen of a two years old and you now go to the nutchy and what you mean by nutchy?
A: My lord when we talk about the hymen, hymen is at the entrance of the vaginal, which we call the introitus. In term of shape of hymen we have different shapes, it could be annular form, silver form or different form, it does not matter the age or race of that person. For the nutches, nutches are healed laceration at 3:00 o’clock and 9:00 o’clock in respect of wall clock for someone to be able recognize where the abnormalities are.
Q: What could be the reason for this nutches you observe on the client?
A: The nutches to this client could be due to blunt penetration injury.
Q: What could be the reason or the causes of the blunt penetration, just like you mention just now.
A: My lord when we talk about blunt penetration, like we all know blunt means something that does not have sharp edge and blunt penetration as a pattern the way they present, is different from the injury of

sharp object like knife and cutlass, its different from the injury from chemicals and from burns. So due to the pattern of this presentation of this nutches we could arrive that this could be due to blunt penetration injury.
Q: What will you put as the reason for this observations and what could be the reason for this since you have excluded sharp object?
A: My lord as I have said in blunt penetration injury the object will not be sharp and in this case it could be due to penial injury, it could be due to finger and it could be due to any other blunt object.”

In brief, the above evidence of PW5 is that an examination of PW4 she found generalized hyperemia or redness in the genital or vaginal area which was not supposed to be there and there was tenderness or pain when touched. The redness could be caused or due to blunt penetration by the penis, finger or other blunt object. The evidence was not effectively controverted or contradicted under cross-examination, but is in total support and confirmation of the consistent evidence of PW4 on what the Appellant did to her.

In addition, the Appellant under cross-examination at pages 617-618

of the Record of Appeal expressly admitted regularly going to PW4’s class even though it is not the tradition of the school for male teachers to visit girl children in their classes regularly.

Earlier on, at pages 613-614 of the Record of Appeal, the Appellant said he checked PW4 in her class whenever he wishes because he knew her from the previous class even though he was not her teacher, was not permitted by her parents who did not know, or anybody.

These pieces of evidence from PW5 and the Appellant provide the requisite corroboration to support and confirm the evidence of PW4 as well as implicate the Appellant in the commission of the offence he was convicted for by the Lower Court. It is argued that the medical report in Exhibits E1-E3 did not mention or name the Appellant as the person responsible for the redness found in PW4’s vagina. In Ezigbo v. State (2012) 16 NWLR (Pt. 1326) 318 @ 329, Onnoghen, JSC, speaking for the Apex Court, held that: –
“Corroboration in respect of the offence of rape is evidence which tend to show that the story of the prosecutrix that the accused committed the crime is true – see

Samba v. State (1993) 6 NWLR (300) 399; Upahar v. State (2003) 6 NWLR (Pt. 816) 230; corroboration need not consist of direct evidence that the accused committed the offence, charged, nor need it amount to confirmation of the whole account given by the prosecutrix.”

There is no doubt which is or can be reasonable in the circumstances of the case before the Lower Court, that the medical evidence of PW5 and Exhibits E1-E3 as well as that of the Appellant under cross-examination as highlighted above, not only tend to, but cogently shows that the strong and consistent evidence of PW4 is compellingly true that the Appellant committed the offence he was charged with. The Lower Court is therefore right that the evidence of PW4 was sufficiently corroborated as required by law to ground the conclusion that the Appellant committed the offence he was convicted for.

On the whole, it must be emphasized that even though the prosecution is required in all criminal trials to adduce compelling and conclusive evidence to prove the guilt of an accused person, it is not required by the law to prove such guilt beyond every or all shadow of doubt. Rather, the requirement,

as is now common knowledge, is that there shall be credible, cogent and sufficient evidence which shows that the offence charged was indeed committed and that it was, in fact, the accused person and no other, who committed the offence. The evidence required in proof of guilt is beyond “reasonable doubt”, objectively, and not beyond every manner of subjectively conceivable doubt; as is quite often misconceived by defence Counsel.

In the final result, I find no merit in this appeal and it is dismissed. The judgement of the Lower Court delivered on the 24th of October, 2019 is hereby affirmed.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, M. L. GARBA, JCA obliged me with the draft of the lead judgment just delivered, wherein he found the appeal as lacking in merit and has consequently dismissed it.

I am in agreement with the decision reached as the lead judgment comprehensively covered and dealt with all the issues raised by the Appellant. I really do not have any useful additions to make as the lead judgment, by the reasoning and resolution of the issues canvassed accorded with my views.
The appeal is dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother MOHAMMED LAWAL GARBA, JCA and I agree with reasoning and conclusion reached therein.

I just wish to comment on the issue of corroboration of the evidence of the prosecuterix, which the learned Appellant’s counsel argued was absent before the trial Court. Apart from the fact that in this case, there was indeed corroboration of the victim’s testimony through the evidence of PW5, in which he tendered the medical report of examination conducted on the prosecutrix and the recording of the interview with her; it needs to be stressed that it is not the law that there must be corroboration of the evidence of victim before the Court can convict for sexual offences. In the case of Mohammed V. State (2018) 13 NWLR (pt. 1635) 85, the Supreme Court following its earlier decision in Habibu Musa V. State (2013) 9 NWLR (pt. 1359) 214 at 237-238 F-B held that:
“…it has to be restated that in offences of a sexual nature, it is very desirable that the evidence of the prosecuterix or complainant is buttressed by other pieces of

evidence implicating the accused person in a substantial way. 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 room 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 first hand the witnesses, considering their demeanor including that of the Appellant…”
In the peculiar circumstances of this case, the prosecutrix evidence is overwhelmingly clear and the learned trial Judge who had the opportunity to hear her speak believed her testimony. Demeanor of witnesses in sexual offences trial play a very prominent role in believing the evidence of the victim and the accused; for as stated in the leading judgment, sexual offences are committed in utmost secrecy. The trial Judge’s observation of the demeanor of the victim while testifying and his finding on same is of utmost importance and should

not be lightly interfered with on appeal.

With this short comment of mine and for the more exhaustive reasoning in the leading judgment, I too find no merit in this appeal and I dismiss it. Appeal dismissed.

Appearances:

Adejuyigbe, SAN, with him, M. Obi-Farinde For Appellant(s)

T. Boye, C. S. C, Ministry of Justice, Lagos State For Respondent(s)