ODU v. STATE (2020)

ODU v. STATE

(2020)LCN/15409(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/C/117C/2020

RATIO

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF RAPE AND DEFILEMENT

EVIDENCE: DOCUMENTARY EVIDENCE: WHETHER A DOCUMENT CAN BE TENDERED IN THE ABSENCE OF THE MAKER

It is the position of the law, that a document can be tendered in the absence of the maker, as the person to whom it is made can also produce it in Court. See Omega Bank Plc vs. OBC Ltd(2005) 8NWLR (pt. 928) 547, Alaribe vs. Okwuonu (2016) 1NWLR (pt. 1492) 41 @ 65.

Equally once a piece of documentary evidence is legally admissible, and its admission before the lower Court is not objected to, such a party is not allowed to object to same at this stage having failed to object to its admissibility at the trial level. See Blessing vs. FRN (2012) 12WRN 36, Omega Bank vs. OBC Ltd (supra), Alaribe vs. Okwuonu (supra). PER HAMMA AKAWU BARKA, J.C.A.

EVIDENCE: RELEVANCE OF DOCUMENTARY EVIDENCE

The intendment of medical evidence most of the times, is to establish mainly what is termed the primary ingredient of the offence, being penetration, and any other injury to the prosecutrix’s private part, for example whether there exists bruises or any other signs of force used, in order to dispel the issue of consent in appropriate cases. See Danladi vs. The State (2019) 16NWLR (pt. 1698) 342. PER HAMMA AKAWU BARKA, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

LINUS OSANG ODU APPELANT(S)

And

THE STATE RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is a fall out from the judgment of Honourable Justice Elias O. Abua, of the Cross River State High Court, sitting in the Ogoja division of the High Court in Charge No. HJ/3C/2016, between The State and Linus Osang Odu whereof the appellant was convicted of the offence of rape and sentenced to a term of 10 years imprisonment with hard labour.

The charge against the appellant before the lower Court, runs thus:-
STATEMENT OF OFFENCE.
DEFILEMENT, contrary to Section 218 of the Criminal Code cap C16 Vol. 3 Laws of Cross River State of Nigeria, 2004.
PARTICULARS OF OFFENCE.
LINUS OSANG ODU “M” on the 24th day of August, 2015 at Odajie village Mbube Ogoja, in the Ogoja Judicial Division had unlawful carnal knowledge of one Favour Abang ‘F’ a girl of the age of 6 years.

When on the 11th of October, 2016, the charge was read to the appellant to his understanding, he pleaded not guilty, whereupon the prosecution in an attempt at proving the allegation that appellant had unlawful carnal knowledge of one Favour Abang ‘F’ aged six years, proceeded to call four witnesses and tendered two exhibits in proof of its case.

First to give evidence for the prosecution is Favour Abang, the alleged victim of the crime. She gave unsworn evidence after satisfying the Court, and narrated how she was sent by her mother to collect a knife from the appellant, who in the process made her to sleep on banana leaves and in her own words wounded her in her nyash, with blood coming out which he cleaned. She narrated also that appellant then took her home, where she then reported to her mother on what transpired between her and the appellant and was taken to hospital. She admitted that she told her mother of what happened the next day, and that she did not tell her grandmother about what happened before telling her mother.

The next witness, Janet Egbelo is the mother of the victim. She identified the victim as her daughter who lives with her mother in Mbupe-Odajie, while appellant was her late mothers friend’s son. She narrated how her mother sent the victim to collect a cutlass from the appellant’s house, and how appellant in the guise of taking the knife and the girl home, branched by the bush side and defiled the victim. She narrated the turn of events leading to the victim telling her mother about what happened the previous day, and how she was contacted, reported the matter to the police and had the appellant arrested.

On being examined, the witness stated the date of the incident as being the 24th of August, 2015, and that she was there 13 days later and took the victim to hospital the next day.

The 3rd prosecution witness, Beatrice Nku spoke in pidgin and identified the victim and the appellant. She stated that she asked the appellant to sharpen her knife, and that the victim Pw1 followed him in other to collect the sharpened knife. That when her granddaughter did not come back in time, she went to the appellant’s house to inquire about her granddaughter but did not see her nor the appellant and returned home. That her granddaughter later told her that appellant forcefully defiled her to which the appellant denied, that she reported to the elders who advised that they go to the police. That the victim was examined and appellant ran away from the town until arrested through the efforts of his father at Bekwarra.

The last prosecution witness, Cpl Idom Murphy of the Special Protection Unit Port Harcourt, testified to the effect that on the 11th of January 2015, one Janet Odu reported a case of defilement against one Linus Osang, the appellant. He identified and tendered in evidence the statement of the accused person marked as exhibit P1, as well as a medical report marked as exhibit P2. He admitted that the accused persons statement was taken on the 22nd of September, 2015, while the case was reported on the 11th of September, 2015.

Consequent upon the Court’s ruling discountenancing the no case submission made on his behalf, appellant gave evidence in his defence, wherein he stated that on the 8th of June, 2015, Favour Abang, the victim who also testified as Pw1, was sent to his house with a cutlass to sharpen which he did. That he escorted the victim and the sharpened cutlass to Pw3’s house and then returned home. That on the 11th of September, 2015 he left for Bekwarra to attend a prayer fellowship, where he spent nine days. He was arrested on the 21st day of September, 2015 on the allegation that he raped one Favour Abang which he denied but was detained by the police. He identified his statement which he made to the police.

At the close of trial, the Court ordered for written addresses which were filed and adopted. The vexed judgment was delivered on the 27th day of April 2018 convicting the accused person and sentencing him to ten years with hard labour.

Aggrieved with the decision of the lower Court, appellant filed a notice of appeal on the 7th of May, 2020 with the leave of Court, predicated upon five grounds.

The record of appeal was duly transmitted to this Court on the 11th of May, 2020, wherefore parties proceeded to file in their various briefs of argument. The appellant filed in the appellant’s brief on the 13th of May, 2020, settled by Jerry Akpan, the learned counsel representing the appellant. From the five grounds of appeal filed, appellant distilled three issues as follows:-
1. Whether upon a proper construction of the provision of Section 218 of the Criminal Procedure Law Cap C16, Vol. 13, Law of Cross River State of Nigeria, 2004 which requires that the offence for which Appellant was charged be brought within 2 (two) months of the commission of the offence, the learned trial judge was right when he assumed jurisdiction to try the Appellant as he was arraigned more than 1 (one) year after the commission of the alleged offence – (Grounds 1 & 2).
2. Whether the learned trial judge was right when he admitted the medical report exhibit “A” which was clearly inadmissible and acted on it when the condition for its admissibility was not satisfied by the Respondent, Appellant’s counsel non-objection to it admissibility not-withstanding – (Ground 3).
3. Whether the offence with which the Appellant was charged was proved as required by law in view of material contradiction in the evidence of the prosecution witness – (Grounds 4 & 5).

In opposing the appeal, and in the brief distilled by Tanko Ashang, the learned Attorney General of Cross River State, filed on the 3rd of July, 2020, the learned counsel in conceding to the issues formulated by the appellant, reframed the same in the following manner:
i. Whether the trial Court had jurisdiction to try the charge of defilement brought under Section 28 of the Criminal code law, laws of Cross River State 2004.

Whether the trial judge rightly admitted the Medical report Exhibit P2.
iii. Whether the prosecution proved the charge against the appellant beyond reasonable doubt.

I do agree with both counsel that the issues identified by the appellant and duly adopted by the respondent, though rephrased are apt in the determination of the appeal, and would thereby proceed to determine the appeal based on the issues as drafted by the appellant.

ISSUE ONE.
Whether upon a proper construction of the provisions of Section 218 of the Criminal procedure Law Cap C16, Vol. 13, Laws of Cross River State of Nigeria, 2004 which requires that the offence for which Appellant was charged be brought within 2 (two) months of the commission of the offence, the learned trial Judge was right when he assumed jurisdiction to try the appellant as he was arraigned more than 1 (one) year after the commission of the alleged offence.

It was extensively argued for the appellant that the lower Court lacked the necessary vires to have entertained the case, owing to the fact that appellant having been arraigned before the lower Court for the offence of defilement under Section 218 of the Criminal Code Cap C16 vol. 3 Laws of Cross River State of Nigeria 2004 on the 11th of October, 2016, the lower Court lacked the necessary jurisdiction the prosecution having taken place outside the period allowed by law. He referred to numerous decisions of this Court and the apex Court on what constitutes arraignment contending that appellants appearance before the magistrate Court for the purpose of being placed in prison custody does not amount to arraignment, as the plea of the appellant was not taken before the said Court. he goes on to argue that his subsequent arraignment before the law Court was bad in law and therefore prayed this Court to hold that the judgment derived therefrom was a nullity as the lower Court was robbed by statute its jurisdiction to hear and to determine the case against the appellant.

For the respondent it was argued that the High Court has unlimited jurisdiction to try all offences including defilement under Section 218 of the Criminal Code dealing with defilement punishable with life imprisonment. He added that the proviso of prosecution beginning within two months was meant to protect the child, and argued that the family Court is bound by the law creating it which is the Cross River State Child Rights Law 2009 which makes it an offence to abuse a child. He defined the term prosecution as beginning from arrest and ends with conviction or acquittal and as such the appearance before the magistrate is tantamount to a prosecution. He maintains that the prosecution of the appellant having commenced on the 8th of October 2015 upon the charge being preferred before the magistrate Court, is distinguishable and thereby distinct from arraignment. In urging the Court to resolve the issue in its favour, learned counsel for the respondent holds the view that prosecution began when steps were being taken in bringing the accused person to justice, i.e. arrest, detention and preferring of a charge before the magistrate Court was being taken.

I have in the instant deeply studied the submissions of the two learned counsel, and for ease of reference the material aspect of the section of the law under consideration provides that:
“A prosecution for either of the offences defined in this section shall be begun within two months after the offence is committed”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>It is seems to me that the issue calling for resolution, borders on the complaint by the appellant seeking to question the jurisdiction of the lower Court entertaining the case before it. The essence of the objection dwells on the simple fact as alleged that the appellant as accused person before the lower Court was not prosecuted within the statutory two months period stipulated by law.
This issue demands immediate resolution, having touched on the jurisdiction of the lower Court. Jurisdiction has a place of eminence in our judicial palace. For where a Court is lacking in jurisdiction, he labours in vain, and all done by it of not effect, null and void.

From the arguments of counsel discernible from their briefs of argument, the limy question which the Court must resolve would be, when does prosecution commence in a criminal trial. Parties stand aloof on the issue. For whereas, appellant’s counsel firmly holds on to the view that prosecution in criminal cases is kick started by the arraignment of the accused person in Court, the learned counsel is of the view that prosecution in criminal cases starts earlier than that. He posits that the arrest, appearance of the accused person before the Magistrate Court even though without the jurisdiction for trial, but for the purposes of a holding charge, prosecution can be said to have been commenced.
The word prosecute according to the Black’s Law Dictionary, 8th Edition denotes commencing and carrying out a legal action, to institute and pursue a criminal action against a person. The Meriam-Webster Dictionary also defined prosecution as the act or process of prosecuting, the institution and continuance of a criminal suit involving the process of pursuing formal charges against an offender to final judgment.
The respondent states that appellant was first charged before a Magistrate Court on the 8th of October, 2015, when the charge was preferred against the appellant, less than the two months prescribed by law. Can that be taken as being in conformity with the stipulations of Section 218 of the law under consideration?
Often at times, an accused person suspected of having committed an indictable offence, is taken before a Magistrate Court, most of the time for the purpose of remand subject to when investigation will be completed. Under such a situation the Magistrate is often empowered upon the suspect being brought to remand the suspect in custody pending the arraignment of such person before a Court with the requisite jurisdiction. Onnoghen JSC in Lufadeju & Another vs. Johnson (2007) LPELR-1795 (SC), while agreeing with Oputa JSC and Akintan JSC drew a distinction between Arraignment, which kick-starts the trial of the accused person before a Court of competent jurisdiction, and remand proceedings usually before a Magistrate Court for the purposes of remand owing to the fact that it lacks the vires to try the offence. In such a proceedings the suspect is usually brought to the Magistrate Court upon a charge signed by a police officer, ordinarily called the police prosecutor, but the accused is not asked to plead to the charge read to him.
In the case at hand both parties agree that appellant was presented before the Magistrate Court within the two months period, but that his plea before a competent Court of trial was taken way outside the two months period. Mikailu JCA in Ojo vs. Bamidele Lasisi (2002) LPELR-5183 understood the essence of the word to prosecute as denoting setting in motion the law whereby an application is made to some person with judicial authority with regard to the matter in question. Similarly in Oyelakin Balogun vs. Busari Amubikahun (1989) LPELR-725 (SC), it was held therein that where the defendant sets in motion against the plaintiff the law leading to a criminal charge, it would be right to state that he was prosecuted by the said defendant. In other words, prosecution is not limited to arraignment as strenuously submitted by the appellant.
I am swayed by the argument that prosecution is commenced upon the accused person, and in this case the appellant, upon his arrest and appearance before the Magistrate Court on suspicion of having committed an offence. The police officer that presents the accused person before the Magistrate Court is titled prosecutor. The learned counsel for the Appellant referred the Court to a host of cases notably Okudo vs. The State (2011) (pt. 1234) 209 @ 228, Abalaka vs. Min. of Health (2006) 7NWLR (pt. 978) 17 @ 29, Lufadeju vs. Johnson (supra), FRN vs. Abubakar (2019) 7NWLR (pt. 1670) 113 @ 123 amongst so many other cases so numerous to mention on what amounts to a proper arraignment, as well as the case of Madukolu vs. Nkemdilim (1962) 1ALL NLR 587 on the competence of a Court to try the action before it.
Those cases constitute and are still notable authorities to the facts decided therein, but with respect inapplicable to the case at hand. I therefore find myself agreeing with the learned counsel for the respondent that the act of arresting and subsequently preferring a complaint against an accused person before a Magistrate Court as in this case amounted to a prosecution, and thereby satisfied Section 218 of the law under reference, and I so hold.

Issue Two.
Whether the learned trial judge was right when he admitted the medical report exhibit P2 which was clearly inadmissible and acted on it when the condition for its admissibility was not satisfied by the respondent. Appellants counsel non objection to its admissibility not withstanding.

It was the submission of the learned counsel for the appellant that exhibit P2 being a medical report dated the 24th of August, 2015, the date appellant was alleged to have committed the offence, while the various medical examinations conducted on the victim were dated the 11th of September, 2015, cast doubts on the authenticity of the document. He goes on to submit that apart from the doubt cast on the authenticity of the document, the said document was not tendered by the maker as provided for by Section 83 of the Evidence Act 2011. Relying on case law cited by him, learned counsel urged the Court to reject the said document in evidence, and since the unsworn evidence of the victim was not corroborated in any material particular, to hold that the allegation against the appellant was not proved as required by law.

The learned counsel for the respondent on the issue contrariwise, submitted that the medical report exhibit P2, tendered by the prosecution was rightly admitted by the trial Court, positing that the medical report having been tendered and admitted without objection and marked as exhibit P2, by the lower Court, same becomes relevant and the Court right to use it in its judgment. He argued that the document in focus is expert evidence, maintaining that the defence never asked for the doctor to be called for the purpose of cross examination, and referred to the cases of Iko vs. The State (2001) 14 NWLR (pt. 732) 221 @ 238 and Moshood Ahmed vs. State (2015) LPELR-24810 (CA), amongst others on what constitutes the ingredients for the offence of rape/defilement, maintaining that the tendering of the medical report ousted the need to call the medical doctor except where the other party requires his attendance for the purpose of cross examination. Learned counsel further argued that the requirement of Section 83 (1) of the Evidence Act 2011, cited and relied upon by the appellant’s counsel does not apply to the instant case, nor does the provision of Section 167 (d) of the Evidence Act 2011, and thereby urged the Court to determine the issue in its favour.

My understanding of the fulcrum of the appellants case is that the medical report exhibit P2, tendered by the prosecution and admitted by the lower Court without objection, was inappropriately admitted, being that it was doubtful from the turn of events, and ought to be expunged by this Court being inadmissible evidence. Further that where that is done, there is no legal evidence corroborating the evidence of the six year old prosecutrix, thus rendering the conviction of the appellant on the offence of defilement inappropriate and untenable.

Let me state at the outset that a medical report may not be necessary in proving the offence of rape, or in this matter, the offence of defilement unless, where the accused person (just like the case at hand) denies the commission of the alleged offence. The intendment of medical evidence most of the times, is to establish mainly what is termed the primary ingredient of the offence, being penetration, and any other injury to the prosecutrix’s private part, for example whether there exists bruises or any other signs of force used, in order to dispel the issue of consent in appropriate cases. See Danladi vs. The State (2019) 16NWLR (pt. 1698) 342.

It is the law as argued by the appellant that by Section 209 (3) of the Evidence Act, 2011 a person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection 1 of the Section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant. The learned appellant counsel in argument posited that the only piece of evidence capable of corroborating the evidence of the prosecutrix is P2, the medical report tendered by the prosecution, and argued further that whereas medical reports are normally issued after conducting series of tests, and the report in this case having predated the tests, rendered the report doubtful, moreso as the maker of the document was not called to explain the doubt raised, and the lower Court therefore wrong to have relied on the said document in finding the appellant guilty.

Indeed when the prosecution sought to tender exhibit P2, the medical report in question, the appellant did not raise any objection thereto and same was admitted without objection.

Noteworthy is the fact that exhibit P2 dated the 24th of August, 2015 and signed by one Dr. Iya S.A. stated that:
Medical Report.
Re: Favour Abang; 6 years; Female.
The above named child was brought to our hospital with a history of sexual assault.
O/E: A calm Child in no distress, not pale, anictoric acyanosed.
V/E: reddened bruises on the vulva with dark patches, hymen not intact, injury at the post-virginal forchette with blood clots.
A diagnosis of sexual assault was made.
Thanks in anticipation.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The learned counsel for the appellant stressed the point that exhibit P2, made earlier than the tests conducted, and when the PW2 was yet to take the PW1, the victim of the offence to the hospital appears doubtful and unworthy of belief. The State on the other hand are of the view that despite the test results being carried out on a later date, the medical report still remains admissible nonetheless, being expert evidence which can be tendered by any of the parties in view of the provisions of Section 55 of the Evidence Act 2011.

In understanding the arguments of learned counsel on the issue, it is necessary to recap the antecedents leading to the making of exhibit P2.

All parties are agreed that the alleged incident took place on the 24th day of August, 2015 at Odajie village Mbube Ogoja in the Ogoja judicial district, as is apparent on the charge sheet. It is deducible from the evidence of the PW 2, that the victim was taken to hospital about 13 days after the incident. In the words of PW2 under cross examination:
Q – do you remember the date of the incident?
A – 24th August, 2015.
Q – did you go there that same day?

A – No, 13 days after the incident.
Q – when did you take her to the hospital?
A – the next day.
Q – do you remember the date?
A – may be 29th or 30th, can’t remember precisely.

Clearly from the above excerpt, the victim was not taken to hospital on the day of the incident. I also accept the sequence of events as narrated by the appellants counsel that the PW2 who took the victim to the hospital did so after about 13 days from the incident, after becoming aware of the defilement of her daughter. The police whom PW 2 said she reported on the 11th of September, 2015. PW 4 also stated in answer to the question posed by the defence counsel, that from exhibit P2, it is clear that the medical report was written before the tests were conducted.

On the other point raised by the appellant, It is the position of the law, that a document can be tendered in the absence of the maker, as the person to whom it is made can also produce it in Court. See Omega Bank Plc vs. OBC Ltd(2005) 8NWLR (pt. 928) 547, Alaribe vs. Okwuonu (2016) 1NWLR (pt. 1492) 41 @ 65.

To the question whether the lower Court was right in admitting exhibit P2 in evidence, it is my humble view that the application to admit the same in evidence, and the document being admissible, was rightly admitted in evidence. Whether the lower Court was right ascribing probative value to same, requires a different consideration, which I intend to undertake in the consideration of the third issue. This issue is determined against the appellant.

Issue Three.
Whether the offence with which the Appellant was charged was proved as required by law in view of the quality of evidence of the prosecution witnesses adduced before the trial Court.

Learned counsel with respect to this issue, submitted that appellant having been charged and prosecuted under Section 218 of the Criminal Code Law of Cross River State, 2004 there must be evidence corroborative of the evidence of the victim (PW1). He referred to Section 209 (3) of the Evidence Act 2011, as well as the case of Rabiu vs. The State (2005) 17NWLR (pt. 925) 491 in support to the legal principle. He referred to the evidence adduced by the prosecution, particularly the evidence adduced by three of the prosecution’s four witnesses whom he described as having rendered hearsay evidence. He cited the case of Ahmed vs. The State (1999) 7NWLR (pt. 612) 675, to submit that unless the evidence of the person who witnessed the commission of the crime is adduced, any other person called will render hearsay evidence.

He argued that the only evidence relevant to the prosecution’s case is that of the prosecutrix, who incidentally did not comply with the mandatory requirement for the taking and the receiving of the prosecutrix evidence, and heavily relied on the dictum of Olatawura JSC in Sambo vs. State (1993) 6NWLR (pt. 300) 399 @ 422. He urged the Court to employ the reasoning and conclusion reached in the case just cited and to hold that the non-performance of the mandatory statutory conditions under Section 209 of the Evidence Act, 2011 and to hold that the lower Court’s reliance on the reception on the prosecutrix evidence as being fatal to the prosecution’s case.

In further argument, learned counsel complained that prosecution’s evidence was full of contradictions, and there being no corroborative evidence to support the case of the victim, he urged the Court to resolve the entirety of the appeal in favour of the appellant and to set aside the verdict of quilt against the appellant, and to discharge and acquit the appellant.

The learned counsel for the respondent in his response to the issue, referred to the ingredients of the offence of rape as enumerated in the case of Shuaibu Isa vs. Kano State (2016) 65 NSCQR 387 @ 391, and urged the Court to hold upon the pieces of evidence adduced by the PW1, PW2 PW3 and PW4 as well as exhibit P2 that appellant had sexual intercourse with the victim, PW1. He drew the Court’s attention to the age of the victim, being six years as at the time the offence was committed, and opined that her consent as at that time was immaterial. He reiterated the fact that Pw1 was not the wife of the appellant, and that he had the requisite mens rea, where inferred from his actions. He cited the cases of Iko vs. The State (2001) 14NWLR (pt. 732) 221, Adonike vs. The State (2015) 7NWLR (pt. 1438) 237, Isa vs. The State (2016) NSCQR 1 and Shuaibu Isa vs. The State (2016) NSCQR (pt. 65) 387, and submitted that penetration however slight, can support the offence of rape. He alluded to the testimony of the victim Pw1, PW2, Pw3, Pw4 and the medical evidence P2, to argue that there was indeed penetration by the appellant. On whether there was contradiction in the evidence of the prosecution witnesses, learned counsel opined that what was noticed were mere discrepancies and not contradictions.

He submits that the lower Court dutifully complied with the provisions of Section 209 of the Evidence Act, 2011 concluding that exhibit P2, sufficiently corroborated the evidence of the prosecutrix, and thereby urged the Court to employ the arms of the law to curb this wanton crime that is becoming rampant in the society.

In resolving this issue, let me also re-echo the words of the Supreme Court through the mouth of I. T. Mohammed, CJN in Shuaibu Isa vs. Kano State (2016) NSCQR (pt. 65) 387 @ 397 thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“A rapist is worse than an animal, he has no moral rectitude. He throws overboard the limit of his legal right and he can shamelessly deprive another person (more painfully, female children of underage) of their God given right of protecting the chastity and sanctity of their body and mind. He is all out to pollute such chastity and sanctity. He has no respect for human being. He can commit any atrocity. He is a cancer in the society. What a shame”.
I totally agree with his lordship.

It is without any iota of doubt, that appellant was arraigned under Section 218 of the Criminal Code Cap. C16 Vol. 3 Laws of Cross River State of Nigeria 2004. The allegation levelled against him was that on the 24th of August, 2015, in a village called Odajie, he had unlawful carnal knowledge of one Favour Abang, a girl that was six years old at the time the alleged crime was committed. Appellant denied the commission of the heinous crime.

It must be mentioned that an accused person enjoys the presumption of innocence by virtue of our Constitution, and until proven guilty by his accusers beyond reasonable doubt through credible, reliable and convincing evidence, he is entitled to an acquittal.

Furthermore, any slightest doubt in the mind of the Court is resolved in favour of the accused person. Ayinde vs. The State (2019) 12 NWLR (pt. 1687) 410 @426, Awosika vs. The State (2019) ALL FWLR (pt. 995) 719 @ 758.

In the case at hand, the prosecution called a total of four witnesses in proving its case and also tendered two exhibits, the accused persons statement and a medical report titled exhibits P1 and P2 respectively.

The appellants complained mainly that the prosecution woefully failed to prove that appellant defiled the prosecutrix, owing to the dearth of legally admissible evidence against the appellant. He contended that the only eye witness account of the incident was that rendered by the Pw1, whose evidence did not conform with the stipulations of Section 209 of the Evidence Act 2011, clearly explained in the case of Sambo vs. The State (supra), and further that the evidence of the minor requiring corroboration was not legally corroborated, being that exhibit P2, the medical report which ought to have served as corroboration to the Pw1’s evidence is doubtful and thereby unreliable and of no evidential value. In other words, the vital question for resolution is, was the prosecution able to prove the allegation of defilement labelled against the appellant before the lower Court as required by law?

The ingredients for the offences of rape and defilement under Section 218 upon which the appellant stands charged are the same. The exception being that the element of consent becomes immaterial due to the age of the victim. To prove the offence therefore, the prosecution has the burden of proving that appellant had sex or canal knowledge of a girl whose age is below the age of consent. That there was penetration into the vault of the victims vagina, and most importantly, that the evidence of the child victim is duly corroborated. See Adonike vs. The State (2015) LPELR – 24281 (SC), Eze vs. The State LPELR-47984(CA), Aje vs. The State (2019) LPELR-46828 (CA).
And to succeed therefore, the prosecution has the onerous duty of establishing all the ingredients of the offence of defilement as stipulated and expressed in the above cited cases beyond reasonable doubt. This is not to say that the requirement of proof beyond reasonable doubt extends to proof beyond any iota of doubt, but that the basic ingredients of the offence stated before now are proved by clear admissible evidence. It is elementary, that this burden imposed on the prosecution never shifts, and any doubt arising from the prosecution’s case, settled in favour of the accused person.

It needs mentioning also that the prosecution in going about its duty of proving the ingredients of the offence, employs the evidence of an eye witness, confession of the accused person and or circumstantial evidence in proving the elements of the crime, so as to entitle a Court of law determine the guilt of the accused person. See Awosika vs. The State (2019) ALL FWLR (pt. 995) 719 @ 758, Adio vs. The State (1986) 2NWLR (pt. 24) 1974.

The lower Court appreciated this basic principle of the law, and rightly referred to the case of Eke vs. The State (2011) LPELR-1133(SC) per Fabiyi JSC, but wrongly applied the principle when it stated in its judgment that the Court should concern itself only looking at the ingredients of the offence charged as against other ancilliary or peripheral matters such as the date of the medical certificate, or when accused was arrested and when he made his statement to the police et al, but whether there was evidence fixing the accused as the culprit of the alleged offence. The lower Court then proceeded to draw some conclusions from the pieces of evidence adduced to the conclusion that prosecution adduced cogent, compelling and believable evidence fixing the accused as the person that defiled the Pw1 on the 24th day of August, 2015.

I have carefully studied the pieces of evidence rendered by the prosecution in the matter, in particular, the evidence of the prosecution witnesses both oral and documentary, and I am inclined to accept the submission of the learned appellant’s counsel, that the only eye witness account on what might have taken place on that fateful day, is that narrated by the prosecutrix as Pw1. The other pieces of evidence on the issue of the defilement of the Pw1 as adduced by the PW2, PW3 and PW4, apart from the aspect of the Pw2 reporting the incident to the elders of the town, and subsequently to the police and taking her for examination, as well as the story by the Pw3 on the alleged occurrence of the 24th of August, 2015, with respect to the issue of appellant defiling the Pw1 are what the Pw1 told them, and I so hold. It was contended by the appellant’s counsel that all the pieces of evidence narrated by the witnesses, particularly the Pw2 and Pw3, with regards to the happenings of the day of the incident amounted to hearsay evidence. I agree with him.

Hearsay evidence is generally regarded as the assertions of persons other than the witness who is testifying, including statements relied on as equivalent to the actors assertion of any fact other than his contemporaneous state of mind or physical equivalent to the actors assertion of any fact. See Chima Ijioffor vs. The State (2001) LPELR-1465 (SC). Such pieces of evidence are not admissible in settling the fact in issue. The lower Court is obviously wrong relying on those pieces of evidence asserted by the Pw2 and Pw3 on the fact of the defilement of the Pw1 to found his conclusion that prosecution’s evidence satisfied the requirement of the law. In any case, the alleged facts enumerated and relied upon by the lower Court amounted to speculating, which a Court of law is enjoined not to partake in.

In the event, the happenings of the 24th of August are as stated by the Pw1, a child of six years old as at the time of the commission of the offence.
Now Section 209 (3) of the Evidence Act 2011 as amended stipulates 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 particular in support of such testimony implicating the defendant”.
Also in the case of Posu vs. The State (2011) LPELR – 1969 (SC), it was held that, as a rule of prudence and the settled course of practice, it is for the Court to seek for corroboration in all cases of rape. This is because it has been found to be unsafe to convict on the uncorroborated testimony of the prosecutrix.

Let me refer to the case of Danladi vs. the State (supra) which relied on the cases of Ezigbo vs. The State (2012) 16NWLR (pt. 1326) 318 amongst others on what constitutes corroboration, where the Court held that:
“Corroboration is confirmation, ratification, verification or validation of an existing evidence coming from another independent witness (es). Any evidence that will serve as corroboration must not be flawed or doubtful or discredited”.
Also in Iko vs. The State (2001) 14NWLR (pt. 732) 195, the Supreme Court reiterated the fact that the purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible, but only to confirm and support that which as evidence is sufficient and satisfactory and credible, and corroborative evidence will only fill its role if it itself is completely credible. It is usually an independent piece of evidence, whether direct, or circumstantial conforming in some material particular that the offence has been committed. See also Ibrahim vs. The State (2015) ALL FWLR (pt. 770) 1401 @ 1413.

It may be asked, whether there was any corroborative evidence in support of the evidence adduced by the prosecutrix, in this case Pw1. I have deeply pondered on the issue, and do agree with the appellant that the only piece of evidence capable of corroborating the evidence of the Pw1, is P2, the medical report tendered by the prosecution without objection. It may then be asked whether exhibit P2 satisfied the criteria set out in the case of Iko vs. The State (supra).
It has been strenuously argued that exhibit P2 is deficient in that respect in that it is doubtful, though tendered without objection.

I have also accorded the document a critical examination, bearing in mind the submissions of learned counsel on the issue. Exhibit P2 no doubt is a document that emanated from the alleged examination of the Pw1 on the 24th of August, 2015. Evidence on record however established the fact that exhibit P2 could only have been made after the PW2 was called by the Pw3, which was 13 days after the occurrence of the alleged defilement had taken place. It is the evidence of the Pw2, that when she arrived to where the victim resides, she reported the matter to the elders of the town who advised that she report the issue to the police. She went further to state in her evidence that she took the victim to hospital where she was examined and a report issued. Armed with the report, Pw2 reported to the police. Certainly that cannot be on the 24th of August, 2015 when the alleged incident occurred. In other words, the report predated the date on which the Pw2 took the victim to the clinic for examination. As if that is not enough, the tests conducted on the prosecutrix was predated by the report of examination conducted on the victim of the alleged defilement. I fail to find any explanation as to why that was so, even though the lower Court tried on its own to proffer that Pw1’s examination must have taken place later in time to the examination initially conducted on the 24th of August 2015. Sadly there is nothing on record suggesting that finding by the lower Court.

I accept the appellant’s contention that the victim was only taken to the hospital for examination 13 days after the incident, when the Pw2 was eventually called by the Pw3. The findings of the trial Court that Pw1 was taken for examination on the day of the incident is not supported by the evidence on record, and the trial Court’s holding in that regard is perverse to say the least. That is not all, it is also evident as submitted that the report P2, predated the result of the examination carried on the Pw1 by the medical personnel that generated exhibit P2. If exhibit P2 as is apparent from the record was produced 13 days after the accrual of the incident that gave rise to the present action, and the stated document is dated the day the incident happened, equally predating the date the examination on the prosecutrix is allegedly carried out, the contention by the appellant that exhibit P2 is doubtful is well founded. In other words the quality of exhibit P2 falls short of that which is required as a corroborative evidence to the evidence of the Pw1, and I so hold.

There is the other argument by the appellant counsel that the prosecution failed to conform with the requirement of Section 209 (1) of the Evidence Act 2011, which provided that;
In any proceeding in which a child who has not attained the age of 14 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.
Wali JSC on the issue in Sambo vs. The State (supra), held the view that it is desirable if not necessary for a judge after examining a child to write down whether the child;

i. knows the nature of an oath
ii. the duty of telling the truth
iii. is possessed of intelligence to give rational answers put to him before taking his evidence under Section 182 (1) or 182 (2) of the Evidence Act 2011 as amended.
In the case at hand, the lower Court on the 26th of October, 2016 at pages 51 of the record, noted as follows:-
Court:- interacts with the Pw1 who says that she is a Christian of the Roman Catholic Church attends church in her village, does not know the name of her village. Witness could testify unsworn.
It was argued for the appellant, that the examination conducted by the lower Court failed to conform with the requirement of Section 209 (1) of the Evidence Act, thus rendering the evidence adduced by the Pw1 as being of no evidential value, and the authority of Sambo vs. The State (supra) was relied upon.
The position taken by Wali JSC in the case cited, where he held the view that it is desirable that the judge after examining the child witness, indicate in writing that he is satisfied that the child knows the nature of an oath, the duty of telling the truth and is possessed of enough intelligence as to give rational answers put to him/her before taking the evidence, is in conformity with the provisions of Section 209(1) of the Evidence Act 2011 as amended.
I have carefully examined the record, and at nowhere is it indicated that the trial Judge after examining the child, indicated in writing that Pw1 was examined by him, and that the Pw1 knows the nature of an oath, the duty of telling the truth, nor did he indicate in writing or otherwise that the child is possessed of the requisite intelligence of giving rational answers to questions that may be put to her. However, there is the other school of thought to the effect that the Judge once satisfied that the child is possessed of the requisite elements above mentioned, need not necessarily write as indicated above. Contributing on the issue, Olatawura JSC, emphasized the point that:
“The record shows that her evidence was not in conformity with Section 182 (1) of the Evidence Act as there was nothing to show how she was examined. The record merely shows a conclusion of what happened; it ought to have stated how the learned trial judge came to the conclusion that she “knows the nature of an oath but does not know the consequence of telling a lie”. While the evidence of a child may be received, the Court must be satisfied that the child is of sufficient intelligence and understands the duty of speaking the truth. The Section 182 of the Evidence Act, appears to me mandatory so as to avoid miscarriage of justice”.
I am not unaware of the position of the law that all persons are competent to testify, unless precluded by law. In the case at hand, even though PW1, a child of six years of age was not shown to know the nature of an oath or the duty of telling the truth, and though able to state what transpired on the day of the incident, in the absence of any evidence pointing to the fact that Section 209(1) of the Evidence Act 2011 has been strictly confirmed with, it will be dangerous to convict on such evidence. In any case, what is the worth of her evidence, where it is devoid of the required corroboration.
The learned jurist, Olatawura JSC, must have been pained just like this Court, having examined the facts of the case before him, but had to follow the dictates of the law, and thereby tried to demonstrate the thin line between justice and law.

I may and do think that appellant did take advantage of the Pw1 in this case, but in criminal proceedings my thinking is of little relevance, as the prosecution must prove its case under the law. Cases are not proved by sentiment, speculations but by hard believable evidence capable of establishing the ingredients of the alleged offence on the basis of the law. I therefore on that basis agree with the appellant that the lower Court was wrong to have held that the prosecution proved its case as required by law. This issue is resolved in favour of the appellant.

Having resolved that prosecution failed to prove the offence of defilement against the appellant, the inevitable conclusion is that the appeal succeeds and it is hereby allowed. In the event the judgment of Elias O. Abua delivered on the 27th of April, 2018 wherein appellant was convicted and sentenced to 10 years imprisonment is hereby set aside, and in its place, I order that the appellant be discharged and acquitted.

It remains only to add, that it does not give the Court joy to see that offenders of this nature continue to enjoy any God given freedom. A rapist is the worst criminal that can be allowed in any society, and worse still is one who goes about defiling innocent small girls. This therefore imposes a duty on the prosecution to see that investigation with respect to cases of this nature are thoroughly and expertly handled.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my earned brother Hamma Akawu Barka. JCA. My learned brother has painstakingly dealt with the three issues nominated for the determination of this appeal.

I agree with the reasoning and conclusion reached in the judgment
I also say that the appeal is meritorious and it is accordingly allowed

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft, the leading judgment just read by my learned brother Hamma A. Barka, JCA, and I agree with his reasoning and conclusion in allowing the appeal. The appellant’s case rested squarely on the propriety of conviction based on an unsworn evidence of a child.

The detailed facts of the case are well set out in the lead judgment and there is therefore no need to repeat them here. Here is a case where the only evidence linking the appellant with the offence charged is the unsworn evidence of the prosecutrix who said “the appellant made her to sleep on banana leaves and wounded her in her nyash with blood coming out” which he denied.

The only evidence capable of corroborating the evidence of the prosecutrix (pw1) is the medical report Exhibit p2 which predated the examination on the prosecutrix. The correct legal position is that corroboration is not necessary to secure conviction of the offence of rape as neither the Evidence Act nor the Criminal Procedure Act or Code provides for corroboration in the offence of rape. See OGUNBAYO V STATE (2007) 8 NWLR (prt 1035) 157 and MOHAMMED V STATE (2018)13 NWLR (prt 1635) 85 at 100.
Thus, an accused person in a charge of rape could be convicted on the uncorroborated evidence of the prosecutrix. It is only unsafe to convict on the uncorroborated evidence of the prosecutrix. In order to secure a conviction, corroboration of the evidence of the complainant implicating the accused is not essential, but the trial Court must warn of itself of the risk of convicting on the uncorroborated evidence of the complainant. See IKO V STATE (2001)14 NWLR (prt 732) 221.

I have stated that the prosecutrix (pw1) in this case gave an unsworn evidence and the law is trite that an unsworn evidence of a witness under the age of 14 years requires corroboration by virtue of Section 209 (3) of the Evidence Act, 2011. It suffices to say that the evidence of pw1 without more is incapable of establishing the guilt of the appellant. See JALE V STATE (2020) LPELR — 50 (CA). In the absence of corroborative evidence, the prosecution in the instant case could not be said to have proved its case beyond reasonable doubt under the law. In the circumstance, the appeal is meritorious and is hereby allowed by me. I also discharge and acquit the appellant.

Appearances:

Jerry Akpan Esq. For Appellant(s)

John U. Ogben Esq., Director, Ministry of Justice, Cross River State For Respondent(s)