ERHADAVWE v. STATE (2020)

ERHADAVWE v. STATE

(2020)LCN/14861(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/AS/50C/2018

RATIO

EVIDENCE: MEANING OF “PROOF BEYOND REASONABLE DOUBT”

The issues I have nominated for the determination of the instant appeal have been fashioned as stated above given the position of the law in respect of the meaning of “proof beyond reasonable doubt” and “reasonable doubt” as enunciated in the case of BAKARE V. STATE (1987) LPELR-714(SC) wherein the Supreme Court stated as follows: –
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what 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. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373: –
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong 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”.
…. Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the facts and surrounding circumstances of the case.
Another sense in which the expression “Proof beyond Reasonable Doubt” is used refers to the shifting of the onus of proof as stipulated by Section 137(1) Evidence Act Cap 62 of 1958: –
“137(1) If the commission of a crime by a party to any proceedings directly in issue… it must be proved beyond reasonable doubt.”
But if the prosecution proves the commission of a crime beyond reasonable doubt then the burden of proving reasonable doubt is shifted onto the accused – see Section 137(3) of Cap 62 of 1958. PER LOKULO-SODIPE, J.C.A.

EVIDENCE: NATURE OF CORROBORATIVE EVIDENCE

There would appear to be no recondity in respect of what corroborative evidence is. In this regard, see the case of OGUGU V. STATE (1994) LPELR-2316(SC) wherein the Supreme Court dealing on corroborative evidence stated thus: –
“Corroborative evidence was defined in Omisade & Ors. v. The Queen (1964) NSCC 170: (1964) 1 All NLR 233; (1964) 1 NMLR 67 as evidence given by an independent witness which showed or tended to show that the accused committed the crime was true, not merely that the crime had been committed, but that it was committed by the accused. The corroboration needs not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime….”
Also dwelling on what corroborative evidence is, in the case of UZIM V. STATE (2019) LPELR-48983(SC), the Supreme Court stated thus: –
“Now, “corroboration” explained by Lord Reading, CJ, in Rex v Baskerville [1916] 2 KB 658 must be independent evidence, which affects an accused by connecting or tending to connect him with the crime. It must be evidence, which implicates him, that is, which confirms in some material particular not only the evidence that the crime was committed, but that the accused committed it. So, corroborative evidence is evidence that shows that the story that the accused committed the crime is true, and not merely that the crime has been committed, but that it was committed by him.” PER LOKULO-SODIPE, J.C.A.

EVIDENCE: NATURE OF PROOF OF EVIDENCE

In any case, the position of the law is clear that proof of evidence and I daresay exhibits set out therein, are not by themselves pieces of judicial evidence, in proof of a crime in the Court. See the cases of SANUSI V. STATE (2019) LPELR-48193(CA) and DADA V. FRN (2014) LPELR-24255(CA). PER LOKULO-SODIPE, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

JOSHUA ERHADAVWE (Also Known As JOSHUA ERADAVWE) APPELANT(S)

And

THE STATE RESPONDENT(S)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 20/12/2017 by the High Court of Delta State, holden at Warri Judicial Division, presided over by Hon. Justice T.O. Uloho (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively).

The Appellant as accused person was charged on an Information filed on 26/7/2016, with the offence of defilement punishable under Section 218 of the Criminal Code, Cap C 21, Volume 1, Laws of Delta State. It should be noted that the name of the Appellant as stated in the Information filed by the State is, “JOSHUA ERADAVWE” and that is the name of the Appellant as reflected in the judgment of the lower Court. How the name of the Appellant came to be reflected as “JOSHUA ERHADAVWE in the notice of appeal in the records of appeal; on the face of the records of appeal; and on the faces of the briefs of argument of both the Appellant and Respondent respectively, is unclear to me. Hence the description of the Appellant in the manner it has been done in

the heading of this judgment. In the particulars of offence, the Appellant was alleged to have had unlawful carnal knowledge of one Emmanuella Esimigbemi aged 8 years on 1/2/2015, at Morogun Water-Side within Warri Judicial Division. The Appellant was arraigned on 12/1/2017, and pleaded not guilty to the charge preferred against him.

The prosecution as Respondent, in the proof of its case against the Appellant, fielded 5 witnesses. Appellant’s mother testified first in the defence of the Appellant; thereafter, the Appellant testified in his own behalf. After the Appellant had testified, DW2, a subpoenaed witness testified. After a review and evaluation of the evidence placed before it, and having had the benefit of the written addresses of the Appellant and prosecution respectively, the lower Court in its judgment found the Appellant guilty as charged and sentenced him to 5 years imprisonment with five strokes of the cane.

The judgment of the lower Court spans pages 76-89 of the records of appeal (hereafter to be simply referred to as “the records”). The issues which the Appellant submitted to the lower Court for determination in

the instant case as recorded in the judgment are: –
“a. Whether the accused has not successfully raised the defence of alibi?
b. Whether the prosecution has been able to proffer credible evidence to establish that the prosecutrix (PW3) was defiled on the 1st day of February, 2015?
c. Whether the prosecution has been able to proffer any credible independent evidence to corroborate the allegation of defilement made against the accused person?
d. Whether the prosecution witnesses have led any credible evidence worthy of legal consideration and sufficient enough to hold that PW3 was defiled?”
The issues the prosecution distilled for the determination of the case before the lower Court, are: –
“1. In accordance with Section 135 of the Evidence Act, did the State prove beyond reasonable doubt the charge of defilement against the accused?
2. Does the defence of alibi avail the accused person?”

Having set out the issues as re-produced above; the lower Court proceeded on pages 76-89 of the records thus: –
“The two (2) issues distilled by the prosecution are similar to the issues as distilled by the accused

person. I shall adopt as mine issues 1 and 2 of the prosecution as the issues for determination before this Court. I shall however reframe issue 1 of the prosecution to read as follows: –
Whether or not the prosecution established beyond reasonable doubt the charge of defilement as proffered against the accused?
I shall deal with the two (2) issues together. It was submitted by learned counsel to the accused person that there was no eye-witness account of what transpired on the alleged date of the incident. He submitted that the only person who could have qualified as a witness was Pw3’s mother who never testified. Learned counsel submitted that the evidence of Pw3 ought to have been corroborated. He referred to the case of: – …
It was submitted by learned counsel to the accused that the evidence of Pw2 cannot serve as an independent evidence of defilement and that the credibility and integrity of Exhibit ‘A’ was destroyed completely by the evidence of Pw1 and Pw4. It was the submission of the learned Principal State Counsel that the evidence of Pw3 was corroborated by the evidence of the Medical Doctor. As to what amounts to

corroboration, learned counsel referred the Court to the case of ….
For the prosecution to succeed in a charge of defilement, the ingredients or elements for the offence of defilement are the same as that of rape save that in the offence of defilement, it is immaterial whether or not the prosecutrix gave her consent. To succeed in a charge of defilement, the prosecution must establish the following: –
(1) That the accused person had sexual intercourse with the prosecutrix;
(2) That the prosecutrix was under the age of 11 at the time of the alleged offence;
(3) That there was penetration;
(4) That there was corroboration.
See the case of……
Pw3 in her evidence testified as follows: –
“The Accused person put his private part inside my private part. The accused person put his penis inside my toto.”
It was submitted by learned counsel to the accused person that there was no piece of evidence that there was penetration. He submitted that the evidence before the Court was that “the Accused person put his penis inside her toto” and that same was not indicative of penetration. It was submitted by

learned prosecuting Principal State Counsel that the identification of the accused person as the person who inserted his penis into Pw3’s vagina was emphatic and uncontested. Learned prosecuting Principal State Counsel referred the Court to the case of…. It was forcefully submitted by learned counsel to the accused Kunle Edun that the prosecutrix never used the word “vagina” and that since there is no word like “toto” in the dictionary the prosecution failed to establish that there was penetration. The Black Law Dictionary 8th Edition defined penetration as follows: –
“The entry of the penis or some other part of the body or a foreign object into the vagina or other bodily orifice.”
There was unchallenged evidence from Pw3 that the accused person put his “private part” into her private part and also that the accused person put his penis into her toto. Although Pw3 did not use the word vagina, however, the evidence of Pw3 was suggestive of the fact that the accused person inserted his penis inside Pw3’s vagina. The prosecutrix in the case of ADONIKE -V- STATE (SUPRA) testified in this manner: –
” … he pulled my pant and put his penis in my yansh.”

The learned trial Judge accepted the piece of evidence of the prosecutrix as amounting to evidence of penetration by the accused person. The Court of Appeal and the Supreme Court accepted the judgment of the learned trial Judge. I shall take judicial notice of the fact that in this jurisdiction or locality the word “vagina” is referred to “toto”. In the case of ADONIKE -V- STATE (SUPRA), the prosecutrix used the word “yansh”. In my respectful view therefore, the word “vagina” is understood in local parlance to mean “toto” and I so hold. Pw3 gave direct evidence and unshaken evidence against the accused person. Pw3 described the accused as a person who lived in the same “Morogun compound” but in different flat. Pw3 identified the accused person as the person who inserted his penis in her private part. Pw5 testified that he examined Pw3 and found that “the hymen was not intact.” There was no laceration seen. It is material and incumbent on the prosecution to establish penetration no matter how slightly. The slightest penetration is sufficient to constitute the act of sexual intercourse. See…. It is therefore not necessary to prove any

injury or the rupture of the hymen. See …… There was unchallenged evidence of Pw5 that upon examination of Pw3 he found that the hymen was not intact. Pw5 further testified that the vagina examination of Pw5 (sic) revealed “vaginal hyperemia “with, urethral prolapsed”. Hyperemia in medical terms means redness of the vagina region due to forceful penetration. Pw3 having given evidence that the accused person inserted his penis into her toto (vagina) it is required as a matter of law that the evidence of the penetration of the prosecutrix be corroborated by an independent witness. See the following case (sic) ….
What then is the nature of the corroborative evidence required of the Prosecution? In the case of IKO -V- STATE …., corroboration was defined by Kalgo JSC as “confirming or giving support to either a person’s statement or faith.” His Lordship quoted with approval the dictum of Lord Readings, CJ in the case of R -V- BASKERVILLE [1917] ALL ER REPRINT 33 @ 43 wherein he stated thus: –
“Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.

In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.”
It was the submission of learned counsel to the accused person that the blood-stained pant Exhibit ‘B’ and the Medical Report are not credible and corroborative evidence. The prosecution did not tender the Medical Report. Pw5 testified to the effect that he examined the prosecutrix, Pw3 and found that she was sexually assaulted. The prosecution having fielded Pw5 did not need to tender the medical report as Exhibit. See…. The best that the prosecution could have done with the medical report was to use same to refresh the memory of Pw5 and not to tender same through Pw5, who had given oral evidence of the examination carried out by him. See Exhibit ‘B’ is the blood-stained pant. Learned counsel to the accused person made heavy weather of the fact that the blood-stained pant was not sent to any laboratory for analysis. Pw3 identified Exhibit ‘B’ the blood-stained pan (sic) as belonging to her. Pw5 on his part stated that he cannot vividly remember

whether there was a blood-stained pant as it has been a long time. There was no evidence before me that Exhibit ‘B’ was preserved or taken to any laboratory for analysis to determine whether or not the alleged stain on the pant was blood. The evidence of Pw1 was that when Exhibit ‘B’ was given to him that it had blood. Exhibit ‘B’ at the time it was being admitted in evidence by this Court had no semblance of fresh blood stain. The part of the pant which covers the vagina appeared stained and had a darkish brown colour, than the rest part of the pant which looked like any other dirt pant. Pw5 unfortunately could not remember whether or not he saw a blood-stained pant. Under cross-examination, Pw5 explained the circumstances in which a blood-stained pant after can be fresh or dry. Pw5 stated thus: –
“If a pant which has blood stain after 24 hours is fresh, the pant is going to be wet, if it is dry the pant would be dry … If an object has blood stain and it is well preserved, that is, there is anti-coagulate, there are factors which can prevent the blood as long as possible … If the blood is exposed to air, it will alter.”
There is no piece of

evidence before me that Exhibit ‘B’ was preserved. The evidence elicited from Pw4 under cross-examination was that Exhibit ‘B’ was not taken to any laboratory for analysis. Exhibit ‘B’ was handed over to the Police since 1st day of February, 2015 and since was kept with the Police. Going by the evidence elicited from Pw5 under cross-examination, Exhibit ‘B’ having not been preserved, could have resulted to its present state as earlier observed in this judgment. Pw1, Pw2 and Pw3 each maintained that there was blood on Exhibit ‘B’. I believe Pw1, Pw2 and Pw3 when they said that there was blood on Exhibit ‘B’ when it was handed over to the Police. My belief is further strengthened by the evidence of Pw5 who stated under examination in chief and cross-examination that there was positive history of bleeding prior to presentation by Pw3. Pw1, Pw2 and Pw3 were unshaken that there was blood in the pant of Pw3. Learned counsel to the accused person Kunle Edun also made heavy weather of the fact that the mother of Pw3 who saw blood on the legs of Pw3 was not called to testify by the prosecution. The evidence of Pw3 was that the mother saw blood on her pant when Pw3 was

about going to take her bath and the mother noticed the blood-stained pant. Pw2 in his evidence testified that he saw blood on the pant of Pw3. Learned counsel to the accused person referred to the fact that apart from Pw3’s mother no other person would have seen the alleged blood on Pw3’s leg. There was however no piece of evidence by Pw3 that the mother saw blood on her leg. The evidence which the mother of Pw3 would have given that she saw the blood-stained pant was supplied by Pw2 (Pw3’s father). Before the offence as charged can be proved there must be proof of penetration. See….. The evidence of Pw5, the Medical Doctor corroborated the evidence of Pw3 that there was penetration of the vagina of Pw3. The evidence of Pw3 and Pw5 established beyond reasonable doubt that there was penetration of the penis into the vagina.
Did the Prosecution establish that the accused person had sexual intercourse of Pw3? It was forcefully submitted by learned counsel to the accused person that there were contradictory evidence of the bleeding by Pw1 and Pw2 to the effect that on the 1st day of February, 2015 that Pw3 bled. He submitted that there was no evidence

that the bleeding continued after the 1st day of February, 2015. Learned counsel further submitted that the evidence of Pw5 contradicted the evidence of Pw1, Pw2 and Pw3 that “they took Pw2 (sic) to the hospital on the 1st of February, 2015” and that she was examined on that day. I think the reference to Pw2 at paragraph 1.46 line 2 of the final written address of the accused was a typographical error. It ought to read “they took Pw3 to the hospital on the 1st of February, 2015.” It was submitted forcefully by learned counsel to the accused person that there was conflicting and contradictory pieces of evidence as to the date that Pw3 went to the hospital. Pw1, Pw2 and Pw3, each in their evidence before me and under cross-examination testified that Pw3 visited the hospital on the 1st day of February, 2015. Pw5 on the other hand testified that he treated Pw3 on the 6th day of February, 2015. Pw5 under cross-examination stated that he saw the victim (Pw3) on the 6th day of February, 2015 and that was the day he signed the Medical Report. It was submitted by learned counsel to the Applicant (sic) that the evidence of Pw5 suggested three possibilities,

namely: (i) that Pw3 bled on 1st day of February, 2015 and stopped; (ii) that again on 6th day of February, 2015 Pw3 bled; (iii) that Pw3 bled from 1st February, 2015 till the 6th day of February, 2015. Learned counsel to the accused person Kunle Edun Esq., therefore submitted that the material conflict in the evidence of the prosecution witnesses was fatal to the success of the charge and that the prosecution made no attempt to allow Pw5 to explain or call any other witness to clarify the contradictions. He submitted therefore that in view of the contradicting evidence, the Court should reject the conflicting versions. He relied on the authority of….. The contradictions in the evidence of the prosecution witnesses, did they affect the credibility of the prosecution witnesses? The conflict is as to the date that Pw3 was taken to the hospital for treatment and the time that the alleged incident occurred; the time of the alleged incident, whether it was 22.00hrs, before 3.00pm or after 4.00pm. There were differences in the narration of the events that occurred on the date of the incident and the date Pw3 was examined by Pw5. The conflict or

contradiction in the narration of the event that occurred on 1st February, 2015 were not material contradictions but were mere discrepancies. The Appellate Courts over the years have held that differences by witnesses in the narration of events are expected as they are natural. In the case of …. This Court is entitled and empowered to look at its filed (sic). See…. The prosecution whilst compiling its proof of evidence included in its proof the medical report issued by Pw5. The medical report was however not tendered in evidence by either the prosecution or learned counsel to the accused who made heavy weather of the failure of the prosecution to tender same. I have in this judgment dealt with this issue. A cursory look of the medical report revealed that Pw5 saw and attended to Pw3 on the 1st day of February, 2015 and not on the 6th day of February, 2015 as stated by Pw5 under cross-examination. This in itself showed that Pw5 did not recount or recollect the date he attended to Pw3 in 2015. A piece of evidence is said to contradict another when they are themselves inconsistent. A discrepancy is defined as follows: –

“A discrepancy may occur when a piece of evidence stops short or contains a little more than what the other piece of evidence says or contains some minor discrepancies in details.”
See …..
The contradiction in the evidence of the prosecution witnesses will amount to material contradiction if it is such that relates to the material ingredients of the offence charged. It is not every inaccuracy in the evidence of the prosecution witnesses that will amount to material contradiction. See ….What is material is that the Pw3 was taken before Pw5 who examined her and found that the hymen was not intact. From the evidence before me, there were no material contradictions in the evidence of the prosecution witnesses that were such as to render the evidence of Pw1, Pw2, Pw3 and Pw3 unreliable.
It was further submitted by Kunle Edun that there was contradiction regarding whether or not it was only PW3 that was at home when the incident happened. The evidence of PW2 was to the effect that when they returned from the Church he left his wife and children at home and went out. The evidence of PW3 further corroborated the story that her mother, her

sister all came back from the Church on the day of the incident. Under the fire of cross-examination, PW3 could not say the exact time they all came back from the Church. PW3 was however specific that on the date of the incident that her mother (sic) asleep when she (PW3) went to defecate at the back of their house and it was at that point that the accused person met her. There was no material contradiction in the evidence of PW3. The evidence of PW3 was not to the effect that she was the only person at home, but that her mother was in the room sleeping. The evidence of PW3 that whilst her mother was sleeping she went to defecate was unshaken. I believe PW3 when she said that it was when she was (sic) to the back of their apartment where she went to defecate that the accused person saw her and held her hands and dragged her into his parent’s flat. I have watched the demeanor of PW3 whilst testifying in the witness box and I access her as a witness of truth. I accept and believe the evidence of PW3 when she said that the accused person dragged her into their (accused parent’s) house and closed her mouth with his hands. I have no course to disbelieve PW3.

There was no piece of evidence either from the prosecution or the accused person that the relationship between the family of PW3 and that of the accused was strained or unfriendly.
It was forcefully submitted by learned counsel to the accused person, Kunle Edun Esq., that the PW1 and PW4 did not conduct proper Investigation of the case and that their refusal to take evidence from the mother of the victim amounted to withholding evidence. He referred to the case of…… It was further submitted that PW1 and PW4 did not investigate the alibi set up by the accused person. He submitted that failure of the Police to investigate the alibi will automatically lead to the discharge of the accused person. He referred to the case (sic) …….It was submitted by V.O. Kubenje Ngwu (Mrs.) that the evidence of alibi do not avail the accused person. She referred to the case of…… The onus is on the accused to proof the defense of alibi. The defense of alibi will be available to an accused person when it is raised on time, and once it is properly raised, the Police must investigate same. The duty lies on the accused person who has raised the defense of

alibi to give the particulars of the alibi. The accused person must give the particulars of the persons he was with, the time he was with him (sic). Alibi is a matter within the knowledge of the accused who is raising same, so the onus will therefore be on the accused to discharge the burden of stating and giving particulars of the persons he was with. It is after the accused has discharged this onerous duty that the onus will then shift to the Police to investigate the alibi set up by the accused. See the following cases: –
……
Exhibits “A” and “B” are the extra judicial statements of the accused person. In Exhibit “A”, the accused person stated that at 10am he went to Celestial Church, Ajamimogha. In Exhibit “B”, the accused did not raise any alibi in Exhibit “B”. The alibi raised by the accused person in Exhibit “A” was not properly raised. The accused person did not set out the particulars of the persons he was with at the time the prosecution alleged that the offence was committed. The accused person did not state the names of the persons he was with. The accused person failed to discharge the duty placed on him by

giving the details of the particulars of the persons he was with and the time he was with them and the persons he was with. The accused person having failed to discharge the burden placed on him, there was no duty placed on the Police to investigate the alibi. It is not sufficient for the accused person to merely say that he was at the Celestial Church on the alleged date of the incident. The accused must give the particulars of the person or persons he was with. See…. The alibi set up by the accused in Exhibit “A” was not unequivocal as to the particulars of the accused person’s whereabouts at the time the alleged offence was committed. The accused person having failed to properly raise, the defense of alibi at the earliest opportunity, the defense will not avail the accused person and same must therefore fail. Learned counsel to the accused person Kunle Edun Esq., tendered Exhibit ‘F’, the School Register and submitted that PW3 the victim was in School on the 2nd and 3rd of February, 2015 and submitted that PW2 and PW3 lied when they testified that PW3 went to School the following Monday and urged on the Court to reject the evidence of PW1, PW2, PW3,

PW4, PW5 and to hold that they have committed perjury by lying under oath. Did Exhibit “F”, the Class Attendance Register reveal that the PW3 attended class on the Monday, following the alleged incident? Exhibit “F” was tendered by DW2. DW2 was subpoenaed and DW2 gave evidence under Oath. PW2 under cross examination, admitted that she was not the maker of Exhibit “F”. DW2 also admitted that she was not the class teacher of PW3, and did not mark the Class Attendance Register. DW2 was not the maker of Exhibit “F”, and no proper foundation was laid as to the whereabouts of the maker. DW2 cannot tell the person who was the class teacher of PW3 as at between the 2nd to 6th day of February, 2015. I shall not place any reliance on Exhibit “F”, the DW2 having failed to lay proper foundation or comply with the provisions of Section 83(1)(a) of the Evidence Act, 2011. There was unchallenged evidence that PW3 at the time of the alleged offence was 8 years old. A under the age of 11 years cannot give her consent to sex as she is not capable of consenting to sex due to her age. PW3 was emphatic that the Accused person had sexual intercourse with her and that

there was penetration. PW3 further gave evidence that the Accused person used his penis and inserted into her vagina, which PW3 in local parlance described as “toto”. I am satisfied that PW3 was a young child of 8 years at the time of the alleged offence. I believe PW3 when she said that she was 8 years old at time of the alleged offence. The evidence of PW3 was corroborated by the Medical evidence of PW5 which corroborated the evidence of PW3 that she was sexually assaulted. The evidence of PW5 established penetration. PW3 emphatically identified the Accused person as the person who had sexually intercourse with her. I believe PW3 when she said that the Accused person inserted his penis into her toto. I take judicial notice of the fact that in this locality, vagina is referred to as “toto”, I believe PW3 when she said that she was taken before PW5 on 1/2/2015 and was examined by PW5. I believe PW5 when he said that he examined PW3 and found out that the hymen was not intact, and that there was hyperemia, which means redness of the vagina. I do not believe the Accused person when he said that he was in the Church till 4.00pm on the day of the alleged incident,

the Accused person having failed to properly raise the defense of alibi. I do not believe the Accused person when he said that he was innocent of the alleged offence. I do not believe DW1 when she said that the Police refused to take her statement. The evidence before me revealed that the father of the Accused person caused the case file in respect of this matter to be transferred from Daudu police Station to “A” Division. I therefore do not believe DW1 when she said that Police drove her away from making her statement. I find and hold that there was sexual intercourse between the Accused person and PW3 and that there was penetration. I am satisfied that the PW3 was under the age of 11 years at the time of the defilement. There was penetration of PW3’s vagina by the penis of the Accused person and the evidence of PW3 having been corroborated by the evidence of PW5, I find and hold that the charge of defilement before me was proved beyond reasonable doubt. I therefore find the Accused person guilty as Charged.
…
ALLOCUTUS:
…
V.O. KUBENJE-NGWU (MRS.): …
COURT: I have listened attentively to the submissions of learned

counsel to the respective parties. The Administration of Criminal Justice Law having been passed into Law, it repealed the Criminal Procedure Law of Delta State, 2004. The Administration of Criminal Justice Law, came into effect in March 2017. Section 413(1)(d) of the Delta State Administration of Criminal Justice Law provides that “a trial Court shall not impose the maximum sentence on a first offender. There is no evidence before me that the accused had previously been convicted. Sections 445 to 460 referred to by Kunle Edun deal with probation and non-custodian matters. Joshua Eradvwhe (sic) having been found guilty for sexual offence, the provisions of Sections 445 to 460 are therefore not applicable to him. I shall now consider the passionate plea of Kunle Edun by taking into consideration the provisions of Part 39, Section 413(2)(a),(b),(d),(e) in meting out sentence to the convict. I was informed by the convict that he is 20 years old. At the time of the alleged offence, the convict was 18 years old. The convict is a young man and still has hope of a bright future. The convict’s act may have been as a result of youthful exuberance. Watching the convict in

the dock pleading for mercy, I am certain that he may have learnt his lessons. The object of sentencing as provided in the Administration of Justice Law is to reform the convict and make him a better person in Society. The convict being a first offender, I shall not mete out the maximum punishment on the accused person, which is life imprisonment. Throughout the period of the trial, the accused person had enjoyed the bail of this Court, and was consistently present in Court. I shall take into consideration the fact that the accused person is a first offender and a young man of 20 years old whom I am informed gained admission into Ozoro Polytechnic. I shall therefore temper justice with mercy and sentence the convict as follows: –
The Accused person Joshua Eradavwe (m) is hereby sentenced to 5 years imprisonment with five strokes of the cane.”

Being aggrieved with the judgment of the lower Court, the Appellant initiated the instant appeal by lodging at the registry of the said Court on 9/1/2018, an undated notice of appeal. The notice of appeal contains 11 grounds of appeal. The grounds of appeal and their respective particulars read: -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law and therefore occasioned a substantial miscarriage of justice when he found the Appellant guilty of defilement.
PARTICULARS OF ERROR
i. There was no clear and convincing evidence connecting the Appellant to the offence charged.
ii. There was no credible eye witness account or independent corroborative evidence.
GROUND TWO
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when he held that the Respondent proved the charge beyond reasonable doubt.
PARTICULARS OF ERROR
1. There was no evidence that there was penetration of the vagina of the prosecutrix.
2. There was no independent evidence from the prosecution which confirmed the story of the prosecutrix.
3. There were material contradictions by the prosecution witnesses on vital evidence.
GROUND THREE
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when he refused the Appellant’s plea of alibi.
PARTICULARS OF ERROR
i. The trial Court found as a fact that the Appellant raised his plea of alibi

at the earliest possible time.
ii. The PW1 and PW4 (IPOs) admitted on record that they were fully briefed by the Appellant of the alibi plea but that they could not investigate it because it was already past the date of commission of the offence.
iii. The IPOs admitted knowing the location of the Church, Celestial Church of Christ, Ajamimogha where the Appellant said he was from 10am till he arrived home at 4pm on the 1st day of February, 2015.
iv. Appellant said in his extra judicial statement that he came back from Church with his mother and sibling; and that they met the prosecutrix mother at home when they arrived home by 4pm.
v. No statement was ever taken by the Police from the Appellant’s mother, sibling and prosecutrix mother by the IPOs nor were these facts ever investigated.
vi. The trial Judge did not consider or inadequately considered this aspect of the evidence.
GROUND FOUR
The learned trial Judge erred in law and thereby occasioned a gross miscarriage of justice when he held that the evidence of PW5 (medical doctor) that he only saw and treated the prosecutrix (PW2) on

the 6/2/2015 vis-a-vis the evidence of PW1, PW2 and PW3 that it was on the very day the prosecutrix was defiled (1/2/2015) that she was taken to the hospital and examined by a medical doctor, were just mere inconsistencies and went further to rely on the evidence of PW5 as sufficient independent corroborative evidence.
PARTICULARS OF ERROR
i. PW5 was very clear when he said repeatedly (sic) under cross-examination that he only saw the prosecutrix on the 6/2/2015 and treated her case.
ii. PW1, PW2 and PW3 were very emphatic in their evidence that PW3 (prosecutrix) was taken to the hospital on the 1/2/2015 and treated that same day by a medical doctor. The case was very fresh at this time.
iii. The Respondent did not make any attempt to clarify or reconcile this contradictory vital evidence.
iv. It is not the duty of a trial Court to explain contradictions or inconsistencies in a trial, particularly in a criminal trial.
v. The trial Court explained this material contradiction as mere inconsistencies and that the date on the medical report (6/2/2015) explained the “inconsistency”.
vi. The trial Court’s heavy reliance on the

medical report which was never tendered as an exhibit at the trial occasioned a gross miscarriage of justice.
GROUND SIX
The trial Court erred in law and thereby occasioned a gross miscarriage of justice when it relied on a medical report purportedly issued by PW5 but which was not an exhibit in the case, thus denying the Appellant his constitutional right to fair hearing.
PARTICULARS OF ERROR
i. The respected trial Judge had earlier in his judgment held that it was not mandatory that the medical report be tendered as an exhibit by the prosecution, since the PW5 had already testified.
ii. The learned trial Judge resorted to and placed heavy reliance on the medical report to explain the material contradiction of the prosecution witnesses, whether it was 1/2/2015 or 6/2/2015 that the prosecutrix was taken to the hospital and examined by a medical doctor.
iii. The Appellant would have fully cross examined PW5 (medical doctor) on the contents of the medical report if it had been an exhibit in the case.
iv. The learned trial Judge relied on an inadmissible evidence or document that was not part of the evidence to convict the Appellant.

GROUND SEVEN
The lower Court erred in law and thereby occasioned a gross miscarriage of justice when it held that the mother of PW3 (prosecutrix) was not a material witness and that her not being called to testify was not fatal.
PARTICULARS OF ERROR
i. There is evidence from the prosecution’s witnesses that the mother of PW3 was at home with the PW3 when the incident happened on the 1/2/2015, and that she was the first person to see the blood on PW3’s legs.
ii. There is evidence that the said mother informed PW2 (the father of PW3) when he came back home thereafter.
iii. PW2 admitted under cross-examination that he never stated in his extra judicial statement (Exhibit C) that he saw blood on the legs of PW3.
iv. PW2’s evidence was hearsay evidence but the trial Court placed heavy reliance on it as sufficient corroborative evidence.
GROUND EIGHT
The lower Court erred in law and thereby occasioned a miscarriage of justice when it held that the word “toto” is the same as vagina.
PARTICULARS OF ERROR
i. The Respondent woefully failed to lead any credible evidence to explain the

meaning of the word “toto” mentioned by PW3.
ii. After PW3 gave evidence, two other witnesses gave evidence for the prosecution and no attempt was made to explain the meaning of the word.
iii. The learned trial Judge’s interpretation of the word “toto” was unsolicited and a violation of the Appellant’s right to fair hearing.
GROUND NINE
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when it held that Exhibit B (alleged blood stained pant of PW3) belonged to PW3.
PARTICULARS OF ERROR
i. PW3 (the 2nd IPO) admitted that the case file and exhibits were transferred to her after 23 days and that the pant of PW3 was still wet when she received it.
ii. PW5 (the medical doctor) admitted and the trial Court agreed with him that it is only when a bloodstained pant is preserved in a special form that it can only be wet after 23 days.
iii. The trial Court found as a fact that the prosecution led no evidence to show that Exhibit B was preserved.
iv. PW3 also admitted under cross-examination that she had nothing to show that Exhibit B belonged to PW3.
v. Considering PW5’s evidence that it

was on the 6/2/2015 that he saw PW3 and the evidence of PW1 that he pulled the pant of PW3 at the hospital on the 1/2/2015, it is obvious that we are talking about more than one pants (sic).
vi. PW4 admitted that she is not sure if the blood on Exhibit is that of the prosecutrix.
GROUND TEN
The lower Court erred in law and thereby occasioned miscarriage of justice when it held that it could not place any reliance on Exhibit F (the school attendance register) because there was no evidence of the whereabout of the maker.
PARTICULARS OF ERROR
i. Exhibit F is the Attendance Register of all the Classes in Baptist Nursery & Primary School, including the particular class that PW3 was at 1/2/2015.
ii. PW2 and PW3 had said emphatically in their evidence that PW3 was allegedly defiled on the 1/2/2015 (a Sunday) and that because of the incident she could not go to school throughout that week (i.e. 2nd, 3rd, 4th, 5th and 6th of February, 2017).
iii. DW1 (the school’s head teacher) was on subpoena duces tecum to tender the Register and same was tendered without objection.
iv. The Register (relevant page of PW3’s class was

identified) and it confirmed that PW3 attended classes on Monday and Tuesday i.e. 2/2/2015 and 3/2/2015 but that 4/2/2015 was a public holiday.
v. It also confirmed that PW3 was not in school on the 5th and 6th of February, 2015.
vi. 6th of February, 2015 was the day that PW5 (medical doctor) said that she saw the PW3.
vii. There is uncontradicted evidence that Exhibit F belonged to Baptist Nursery & Primary School and that it contained attendance record of all the classes in the school.
viii. There was no evidence challenging DW1 as the head teacher and employee of the school.
ix. Exhibit F confirmed that PW2 and PW3 (father and daughter) lied on oath.
GROUND ELEVEN
The learned trial Judge erred in law and thereby occasioned miscarriage of justice when he held that the PW3 was a witness of truth and that her evidence was unshaken.
PARTICUALRS OF ERROR
i. Exhibit F showed clearly that PW3 was a false witness and that at her tender age she could dare come to a Court to tell lies.
ii. There was no contrary evidence from the prosecution that Exhibit F was a false document or that PW3 was in school on the said dates.

iii. The respected trial Judge allowed a perjured witness to benefit from her perjury, which makes mockery of the judicial process.
iv. The entire evidence of PW3 is anchored on falsehood and therefore unbelievable and lacks credibility.”

The relief which the Appellant seeks as contained in the notice of appeal is an order setting aside the judgment of the Delta State High Court, Warri Judicial Division, delivered on the 20th day of December, 2017, and in its stead enter an order discharging and acquitting him (Appellant) of the offence charged.

The appeal was entertained on 30/9/2020 with Olukunle Edun of counsel adopting and relying on Appellant’s brief of argument dated 26/3/2018 and filed on the same date as well as Appellant’s reply brief of argument dated “…… March, 2019” and filed on 27/3/2019, in urging the Court to allow the appeal. In the same vein, learned Assistant Director Department of Appeals, Delta State, E.E. Erebe leading two other Law Officers, in urging the Court to dismiss the appeal, adopted and relied on Respondent’s brief of argument dated 26/7/2018 and filed

on 27/7/2018, but deemed as properly filed and served on 11/6/2020.

Having first disclosed in his brief of argument that his notice of appeal actually contains 10 grounds of appeal and not 11 grounds of appeal as Ground number 5 was omitted therein, the Appellant proceeded to formulate 3 issues for the determination of the appeal. The issues are: –
“a. Whether the Appellant did not establish the defence of alibi? Distilled from Ground 3 (three).
b. Whether the trial Court’s reliance suo motu on the contents of a medical report which was not an exhibit in the case to make a critical finding in support of the Respondent’s case does not amount to denial of Appellant’s right to fair hearing? Distilled from Ground 6.
c. Whether the Respondent was able to prove the charge of defilement against the Appellant beyond reasonable doubt? Distilled from Grounds 1, 2, 4, 7, 8, 9, 10, 11.”

The two issues the Respondent formulated for the determination of the appeal in its brief of argument are: –
“1. Whether the learned trial Judge was right in holding that the prosecution proved the charge against the appellant beyond

reasonable doubt?
2. Whether in view of the facts on record the learned trial Judge was wrong when she held that the defence of alibi did not avail the Appellant.”

Having read very painstakingly the judgment of the lower Court particularly the portions re-produced hereinbefore; the briefs of argument of the parties; and in the light of the settled position of the law in respect of what is expected of the prosecution in any criminal trial, the issues that I consider as appropriate for the determination of the instant appeal and the order in which they would be considered are: (i) whether the Respondent (i.e. prosecution) proved its case against the Appellant beyond reasonable doubt; (ii) whether the Appellant needed to establish a reasonable doubt to the case of the Respondent given the case established by the prosecution from the evidence it placed before the lower Court; and if the answer is in the affirmative, whether the Appellant did establish any reasonable doubt in the case. The issues I have nominated for the determination of the instant appeal have been fashioned as stated above given the position of the law in respect of the meaning of

“proof beyond reasonable doubt” and “reasonable doubt” as enunciated in the case of BAKARE V. STATE (1987) LPELR-714(SC) wherein the Supreme Court stated as follows: –
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what 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. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373: –
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong 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”.
…. Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the facts and surrounding circumstances of the case.
Another sense in which the expression “Proof beyond Reasonable Doubt” is used refers to the shifting of the onus of proof as stipulated by Section 137(1) Evidence Act Cap 62 of 1958: –
“137(1) If the commission of a crime by a party to any proceedings directly in issue… it must be proved beyond reasonable doubt.”
But if the prosecution proves the commission of a crime beyond reasonable doubt then the burden of proving reasonable doubt is shifted onto the accused – see Section 137(3) of Cap 62 of 1958. What does this subsection mean in relation to the case

now on appeal. It means this. At the close of the prosecution case the Court had heard 9 witnesses testified. If the prosecution witnesses were believed and there was nothing urged in defence, no fair minded jury can return any verdict except that of guilty. In other words, the prosecution established this case beyond reasonable doubt. The onus then shifted to the defence to adduce evidence capable of creating some reasonable doubt in the mind of the trial Judge. The primary onus of establishing the guilt of the Appellant was still on the prosecution and this does and did not shift. What does shift is the secondary onus or the onus of adducing some evidence which may render the prosecution case improbable and therefore unlikely to be true and thereby create a reasonable doubt: – R. v. Harry Lazarus Lobell (1957) 41 C.R. App. R. 100 at p.104 per Goddard L.C.J.
….. Evidence that is not accepted cannot possibly create a doubt in the mind of a fair minded jury. If the defence account of the incident is disbelieved then that is the end of the story and there will then be no evidence on which to consider the existence of a reasonable doubt.

The Court of Appeal was right in holding that the case was proved beyond reasonable doubt. Ground 2 of the grounds of appeal therefore fails.”
See also the case of AIGBADION V. THE STATE (2000) LPELR-264(SC), (2000) 7 NWLR (Pt. 666), (2000) 4 S.C (Pt l) 1.

In arguing the 3 issues, he formulated for the determination of the appeal, the Appellant first dwelled on his issue 1 which is as to whether or not he established his defence of alibi. The Appellant in the main submitted that he established his defence of alibi. It is the position of the Appellant that PW1 and PW4 failed to investigate his alibi. He submitted to the effect that a successful plea of alibi would have led to his discharge and acquittal in respect of the offence he was charged with. The Appellant proceeded to engage in an evaluation of the evidence adduced in the case. He submitted that the findings of the lower Court on his plea of alibi were perverse. That if the lower Court had considered the admissions of PW1, PW4 and the contents of Exhibit “A” collectively (all of which were information furnished at the earliest time and with particulars of persons he (Appellant) was with and

timelines), it would have reached a different decision. That PW1 and PW4 never said that they did not know where the Church he (Appellant) claimed to have attended on 1/2/2015 is, or that they could not obtain statements from his relations or PW3’s mother. That the Appellant is just a teenager who is not learned in law to know what to write in his statement that will meet the requirement of an alibi. That he did not have the services of a legal practitioner while at the Police Station. This Court was urged to allow this appeal and acquit the Appellant for failure of PW1 and PW4 to investigate the alibi availed the Police during the investigation of the case.

Dwelling on his issue 2, which is in respect of the use of the contents of a medical report by the lower Court suo motu, (and which was not an exhibit in the case to make a finding to support a material issue in favour of the Respondent), it is the position of the Appellant that this amounted to a denial of his right to fair hearing. It is the position of the Appellant that the entire proceedings before the lower Court is a nullity for failing to give him (Appellant) the full benefit of his

constitutional right to fair hearing, as envisaged by the provisions of Section 36 of the amended 1999 Constitution of the Federal Republic of Nigeria. It is the stance of the Appellant that it is clear from a perusal of the judgment of the lower Court that the said Court relied heavily on the medical report in arriving at one of its findings in the case. Indeed, that the medical report seemed to be the only independent evidence the lower Court used in convicting him (Appellant). That he had argued before the lower Court, extensively that the medical evidence of PW5 was manufactured and that it contradicted the evidence of PW1, PW2, PW3 and PW4, regarding the date the incident happened and when PW3 was taken to the hospital for exanimation. That it was his (Appellant’s) submission that the medical evidence adduced by the prosecution was unreliable based on material contradictions. That the medical report was not tendered as an exhibit but the lower Court relied on it. That the evidence of PW5 obviously contradicted the evidence of PW1, PW2 and PW3 that they took PW3 to the hospital on 1/2/2015, and that she was examined on that same day. That this is a

fundamental and material contradiction and it raised a lot of doubts on the credibility of the evidence of PW5 in that it is possible that PW5 treated a different person entirely as there was no evidence from PW1, PW2 and PW3 that they visited the Central Hospital, Warri where PW5 worked on 6/2/2015 or were attended to by any medical doctor on the said 6/2/2015. It is the stance of the Appellant that from the evidence of the prosecution witnesses, three possibilities emerge, namely: (i) that PW3 bleed on 1/2/2015 and it stopped; (ii) bleed again on the 6/2/2015 and it stopped; or (iii) that she bleed from the 1/2/2015 till 6/2/2015. That it was interesting that the lower Court did the work of the prosecution not only by finding that the contradictions were minor but had to look for evidence outside the proceedings to make a finding that PW3 was attended to by PW5 on 1/2/2015 and not on 6/2/2015. It is the stance of the Appellant that this unsolicited intervention of the lower Court was perverse. That this is more so as he (Appellant) would have had the opportunity of cross-examining the medical doctor on the credibility of the report if it had been admitted as

an Exhibit in the case. The Appellant urged this Court to hold that the proceedings at the lower Court was a nullity and that the resolution by the lower Court of the conflicting dates (of 1/2/2015 and 6/2/2015) by reference to materials which were not in evidence before it, prejudiced him (Appellant) and has occasioned a substantial miscarriage of justice and therefore violated Appellant’s constitutional right to fair hearing.

Dwelling on his issue 3, it is the stance of the Appellant that the Respondent did not prove the charge of defilement against him beyond reasonable doubt. Referring to the provisions of Section 218 of the Criminal Code of Delta State, Cap. C21, Laws of Delta State, 2006, the Appellant submitted that it is mandatory that the evidence of the victim (PW3) who alleged that she was a minor as at 1/2/2015, must be corroborated. In the main it is the stance of the Appellant that there is no independent corroborative evidence in support of the case of the prosecution. Indeed, the Appellant submitted that the prosecution failed to call a material witness – Iya Ibeji who could be described as an eyewitness. That from the evidence

adduced by the prosecution, this person was the first witness to arrive at the scene and that in all probability this was as a result of the cry of or alarm raised by the prosecutrix before and during the sexual intercourse. That there is no doubt that the evidence of this person was most material on the issue of consent on the part of the prosecutrix. That no satisfactory evidence was given by the prosecution for failing to call this particular witness. This Court was urged to invoke the provisions of Section 167(d) of the Evidence Act, 2011, against the Respondent, for the withholding of material evidence of a vital witness, who if called would not have testified in favour of the Respondent. It is also the stance of the Appellant that the lower Court relied on unscientific method and guesswork in the 21st century to arrive at its erroneous decision relying on Exhibit “B” to convict him (Appellant). That with this unscientific (and illogical) approach the liberty of a citizen of the Federal Republic of Nigeria, was denied him. This is more so as PW3 admitted that she wore Exhibit “B” the day after the medical examination. It is the

stance of the Appellant that Exhibit “B” is of doubtful source, lacks credibility and that the reliance on same by the lower Court to convict him (Appellant), is perverse and has occasioned a miscarriage of justice.

Having also dwelled on what he termed “contradictory evidence of bleeding”; “issue of toto”; and “lying by PW2 and PW3 under oath that PW3 was not in school the next day after the alleged defilement”; “issue that no defilement was committed on 1/2/2015” and “issue that PW3 could not have been at home at the time the alleged incident happened”; the Appellant ended up by urging this Court to hold that the prosecution did not establish the crime with which he was charged, beyond reasonable doubt.

Dwelling on the first of the two issues it formulated for the determination of the appeal, to wit: “whether the learned trial Judge was right in holding that the prosecution proved the charge against the appellant beyond reasonable doubt”, it is the stance of the Respondent that it did so having regard to the overwhelming evidence against the Appellant.

The Respondent thereafter proceeded to set out the ingredients of the offence of defilement and referred copiously to the evidence by which it proved the ingredients beyond reasonable doubt.

Dwelling on its issue 2, to wit: “whether in view of the facts on record the learned trial Judge was wrong when she held that the defence of alibi did not avail the Appellant”, the Respondent again, submitted that the lower Court was not wrong. It was submitted by the Respondent amongst others, that while it is the duty of the police to investigate alibi, it is also the duty of the accused to furnish the particulars of his alibi to the Police at the earliest opportunity. That he must furnish his whereabouts and those present with him. That it is then left to the prosecution to disprove same and failure to investigate will lead to acquittal. The Respondent stated that the question to be asked is whether the Appellant furnished the particulars of his whereabouts and those present with him to the Police at the earliest opportunity? The Respondent stated that the answer, is in the negative. That when the Appellant was confronted with the offence, he made a

statement to the Police on 2/2/2015, and which was tendered as Exhibit “A”. The Respondent submitted that no alibi was raised by the Appellant in the statement. That there were insufficient facts for the Police to investigate, it was vague. That the Appellant said he was at a Celestial Church of Christ at Ajanimogha Warri. That the following questions begged for clarification: (i) which Celestial Church of Christ at Ajanimogha; (ii) where in Ajanimogha is the said Celestial Church of Christ; (iii) what street; (iv) what is the number of the Church; and (v) who was with him. That the Appellant mentioned no one. The Respondent also stated that the Appellant made another statement that was tendered as Exhibit “D”. That he did not raise any alibi therein. The Respondent submitted that the attempt of the Appellant to raise the defence of alibi at the trial therefore went to nought as it is trite law that alibi to be properly raised, it must be raised at the earliest opportunity when an accused person is confronted by the Police with the commission of an offence so that the Police will be in a position to check it.

The Supreme Court had cause to dwell on the offence of defilement in the case of ADONIKE V. STATE (2015) LPELR-24281(SC). Therein, the Supreme Court stated thus:
“The offence of defilement is complete when the Court is satisfied that the person defiled was under the age of 11 at the time the appellant committed the act. There was penetration of the child’s private part by the penis of the appellant, and the evidence of the child was corroborated by independent evidence. The case against the appellant has been proved beyond reasonable doubt.”
The offence of rape is certainly a kindred offence to that of defilement given the elements of the offence that must be established beyond reasonable doubt and which excludes or does not include establishing the age of the victim and the need for independent corroborative evidence of the commission of the offence by an accused person. In this regard, see the case of OGUNBAYO V. STATE (2007) LPELR-2323(SC) wherein the Supreme Court long ago stated thus: –
“I will pause here to state that the important and essential ingredient of the offence of rape, is penetration. It is also settled that sexual interference is deemed

complete upon proof of penetration of the penis into the vagina. See the cases of R. v. Marsden (1891) 2 Q.B. 149 @ 15 – per Lord Coleridge, C.J. that “emission” is not a necessary requirement;…. It has however, been held that any, even the slightest penetration, will be sufficient to constitute the act of sexual intercourse. This is why, even where penetration was proved but not of such a depth as to injure the hymen, it has been held to be sufficient to constitute the crime of rape. See…. Thus, proof of the rupture of the hymen is unnecessary to establish the offence of rape. See …
I hold therefore that the evidence of the PW1 was adequately corroborated by the available evidence as required in practice including that of PW2 and PW5. My answer therefore to issue 1 of the appellant and that of the respondent – first arm, is that corroboration is not necessarily required because it is not a rule of law that an accused person cannot be convicted on uncorroborated evidence of the prosecutrix. In respect of the second arm, my answer is definitely in the affirmative.”
The Appellant having regard to the Information preferred

against him was charged with the offence of defilement under Section 218 of the Criminal Code, Cap. 21 Laws of Delta State, 2006. The offence of defilement is one of the offences set out under Chapter XXI which is headed or titled “Offences against Morality”. The provisions of Section 218 read thus: –
“Defilement of girls under eleven
Any person who has unlawful carnal knowledge of a girl under the age of eleven years is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning.
Any person who attempts to have unlawful carnal knowledge of a girl under the age of eleven years is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning.
A person cannot be convicted of either of the offences defined in this section upon the uncorroborated testimony of one witness.”
I am of the considered view that it is clear from the provisions re-produced above, and indeed the authorities that while consent is a proper defence to rape, that is not the case with defilement given the fact that the law totally prohibits sexual intercourse with a girl under the age of 11, in Delta State.

I have before now set out nearly the whole of the judgment of the lower Court appealed against. My understanding of the various submissions of the Appellant in questioning whether the prosecution proved the case of defilement against him beyond reasonable doubt, is no more than that the lower Court did not have before it any corroborative evidence that supported his conviction and that this is a requirement of the law in respect of the offence for which he was convicted.
There would appear to be no recondity in respect of what corroborative evidence is. In this regard, see the case of OGUGU V. STATE (1994) LPELR-2316(SC) wherein the Supreme Court dealing on corroborative evidence stated thus: –
“Corroborative evidence was defined in Omisade & Ors. v. The Queen (1964) NSCC 170: (1964) 1 All NLR 233; (1964) 1 NMLR 67 as evidence given by an independent witness which showed or tended to show that the accused committed the crime was true, not merely that the crime had been committed, but that it was committed by the accused. The corroboration needs not be direct evidence that the accused committed the crime; it is

sufficient if it is merely circumstantial evidence of his connection with the crime….”
Also dwelling on what corroborative evidence is, in the case of UZIM V. STATE (2019) LPELR-48983(SC), the Supreme Court stated thus: –
“Now, “corroboration” explained by Lord Reading, CJ, in Rex v Baskerville [1916] 2 KB 658 must be independent evidence, which affects an accused by connecting or tending to connect him with the crime. It must be evidence, which implicates him, that is, which confirms in some material particular not only the evidence that the crime was committed, but that the accused committed it. So, corroborative evidence is evidence that shows that the story that the accused committed the crime is true, and not merely that the crime has been committed, but that it was committed by him.”

Having regard to the judgment of the lower Court that has been re-produced hereinbefore and the submissions of the Respondent i.e., prosecution, I am of the considered view that the only independent corroborative evidence that the said Court had before it, was the evidence of the medical practitioner, i.e. PW5. See the evidence of the

said witness on pages 31-32 of the records. I am however of the considered view that all the evidence of the witness can be said to have established in all probability is that PW3 was carnally known or someone had carnal knowledge of PW3 on 1/2/2015 (when the incident of sexual assault was said by PW1 to have been reported at “A” Division Warri, by Daniel Esimigbemi (i.e. PW2) against the Appellant) and/or on 6/2/2015 when the medical doctor practitioner, i.e. PW5 stated that PW3 who was said to have been sexually abused or sexually assaulted on 1/2/2015, was seen or examined by him. The Appellant has not only questioned the credibility of the evidence of PW5, but has also challenged the reliance by the lower Court on a medical report that was not tendered by the prosecution, in finding that PW3 was sexually assaulted on 1/6/2015, against the backdrop of the express testimony of PW5, that he examined or saw PW3 as a patient on 6/2/2015.

I must first observe that the prosecution would appear not to realise the importance of time and date in the charge it framed against the accused person vis-à-vis the defence of alibi set up by the

Appellant when it (Respondent) stated on pages 6-7 of its brief of argument thus: –
“ON CONTRADICTION AS TO DATES OF EVENT
Appellant’s Counsel in his Brief made heavy whether (sic) as to contradiction that PW1, PW2 gave evidence that PW3 {the victim} was taken to central hospital and was examined by PW5 {doctor} on 1/2/2015.
While PW5 {doctor} on the other hand under cross examination {at page 31 of the record} that he examined PW3 on 6/2/2015, Appellant counted (sic) in the Appellant (sic) Brief submitted that there was conflicting and contradictory piece of evidence as to the date that PW3 went to the hospital and was examined by PW5 visa a vise (sic) PW5 evidence under cross examination and that the trial Court rely (sic) on the medical report not tendered to clear the contradiction. I submit that the contradiction if any was a mere discrepancies (sic).
I submit that in dealing with contradictions and discrepancies of evidence of the prosecution, it must be borne in mind that the human faculty is not a computer in recollection, the memory of witness might fail him. His human faculty may miss some minor details by reason of lapse of

time or accuracy in narration. It is also very possible that there may be a mix up of dates when the issue of date is not an essential ingredient. When such happens, so long as the Court believes the evidence of the prosecution, such contradictions which do not touch on material substance of the case cannot discredit the evidence of the prosecution.
….
As rightly held by the trial Judge at page 85
“….. the contradiction in the evidence of the prosecution witnesses will amount to material contradiction if it is such that relates to the material ingredient of the offence charged. It is not every inaccuracy in the evidence of the prosecution witnesses that will amount to material contradiction…..
What is material is that PW3 was taken before PW5 who examined her and found that the hymen was not intact. From the evidence before me, there were no material contradiction in the evidence of the prosecution witnesses that were such as to render the evidence of PW1, PW2 and PW5 unreliable, …..”
The Appellant in the Appellant Brief submitted that the trial Judge rely (sic) on medical report not tendered to resolve the conflicting evidence.

I urge my Lords to discard that submission on that point.
As the trial Court held that the contradictions are mere discrepancies and that the discrepancy as to dates PW3 was examined by PW5 is immaterial to the charge before reference was made to the medical report. See page 84 Line 5-12 of the said judgment wherein the trial Judge stated thus: –
“….. the contradiction in evidence of the prosecution witnesses did they affect the credibility of the prosecution witnesses? The conflict is as to the date that pw3 was taken to the hospital for treatment and the time that the alleged incident occurred; the time of the alleged incident whether it was 22:00hr, before 3:00pm or after 4:00pm. There were differences in the narration of the events that occurred on the date of the incident and the date PW3 was examined by PW5. The conflict or contradiction in the narration of the event that occurred on 1st February, 2015 were not material contradictions but were mere discrepancies ….. ”
I submit that the trial Judge properly evaluated the evidence on record and held that the discrepancies as to the date PW3 was examined

by PW5 {doctor} is immaterial and that there were no material contradiction in the evidence of the prosecution witnesses that were such as to render the evidence of PW1, PW2, PW3 and PW5 unreliable….”

Because of the attitude of the society to sexual offences and which I believe is that perpetrators of such crime should not be let of lightly, in order to deter others that might have such propensity or tendency, I have read the whole of the records (inclusive of all the exhibits tendered), painstakingly. This is more so as it is a sacrosanct position of the law that an accused person must be convicted on proper and legal evidence; hence the often-stated position of the law that it is better that 10 guilty persons be left to go scot free; than to convict an innocent person. Suffice it to say that having read the records as well as the “supplementary record of appeal” placed before this Court most painstakingly, I am of the considered view that there appears to be more than meet the eyes in the instant case.
PW1 testifying in the case stated thus: –
“My name is Corporal Akakpor Friday, Force No. 4467. I am attached to

the Nigeria Police Force ‘A’ Division Warri now posted to Daudu out post. I know the accused person. On the 1st of February, 2015 at 10.00pm, one Mr. David Audu Esimigbemi came to the station, with his daughter Emmanuella Esimigbemi who is eight (8) years old Emmanuella was bleeding from her private part. A case of defilement was reported by the said Daniel Esimigbemi against one Joshua Eradarwe, the accused person. The case was referred to me for investigation.
I recorded statement from the complainant at page A4 of the police case file. The statement of the victim was also taken at page A5 of the file. The statement of the accused was recorded at page B1.
After recording the statement of the victim and complainant, I took the victim to the hospital for medical examination. There was a white pant stained with blood was recovered (sic) by me and taken as Exhibit, the accused person was arrested in his house. The accused person was thereafter detained for the offence of defilement.
After taken the victim, the said Emmanuella to the hospital, on 8th of February, 2015, there was a medical report from the medical doctor which was of the

effect that the victim was sexually assaulted which investigation is still going on….”

The statement of Hon. Daniel Esimigbemi i.e. PW2, was admitted as Exhibit “C”. The statement was made on 24/02/2015. It is in this statement that the said PW2 is recorded to have reported on 1/2/2015, what allegedly happened to his daughter – PW3 on the said 1/2/2015.
Under cross-examination, the witness – PW1 stated amongst others thus: –
“It was not the father of Emmanuella that handed the victim over to me. I took the victim to the hospital while blood was coming out from her private, (sic) the victim Emmanuella pulled the pant whilst I was in the hospital with her handed (sic) her pants to me. It is not correct to suggest that I was not in the hospital where the victim was examined. I was not in the room when the doctor examined the victim. There was a medical report. The medical report showed that there was blood on Exhibit ‘B’.
The medical doctor conducted examination on Exhibit ‘B’. I see the report. It was not stated in the report that the blood in Exhibit ‘B’ was the blood of

Emmanuella. It is the doctor who will tell whether the blood is the blood of Emmanuella. There is nothing to show whether the blood on the pant is the blood of Emmanuella….”

The evidence of PW2 is on pages 24-26 of the records. Suffice it to say that the witness having stated that he saw blood on PW3’s pant on 1/2/2015, left no one in doubt that it was on the same 1/2/2015, that he reported the incident to the Police and went to the hospital where PW3 was examined by a medical doctor who thereafter issued a medical report on the same date. On the other hand, it is clear from the evidence of the medical practitioner who testified as PW5, that it was on 6/2/2015, he saw and examined PW3. The Respondent in its brief of argument, has submitted to the effect that human memory fades with time. This apparently is to justify the attitude of the lower Court under the guise of the principle of law that it can look at any document in its case file, in looking at a medical report which the prosecution never tendered for any purpose, in resolving the contradictory evidence presented by the prosecution as to the date on which PW3, was not only

allegedly sexually assaulted, but was sent in or brought in for medical examination, so as to know what it was that happened to the said PW3, and which resulted in blood seen on her pant. It would however appear that the prosecution in making its submissions have forgotten that our Evidence Law, 2011, in the knowledge that human memory do get dim, has made provisions for “refreshing of memory” by a witness. While it is apparent from the portion of the judgment of the lower Court re-produced hereinbefore that the said Court was very much aware of the provisions of the Evidence Act, relating to “refreshing of memory” by a witness, the said Court would appear not to have considered it desirable that this be done in respect of PW5. Section 239 of the of the Evidence Act, 2011 reads: –
“SECTION 239 – Refreshing memory.
1. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
2. The witness may

also refer to any such writing made by any other person, and read by the witness within the time mentioned in Subsection (1) of this section, if when he read it he knew it to be correct.
3. An expert may refresh his memory by reference to professional treaties.”

PW1 and PW3 were the only witnesses that testified that on 1/2/2015, blood was coming out from the vagina of PW3. What PW2 said in his evidence was that he saw blood on the pant of PW3. PW1 is not a doctor and never disclosed in his evidence that he carried out an examination of the vagina of PW3. PW5 claimed in his evidence that he carried out an examination of PW3, but there is in my considered view some doubt as to whether it was PW3 that he actually examined or whether he was the actual doctor that carried out the examination of PW3. The lower Court stated that it had the right or power to look at the medical report attached to the Information. It would however appear that the lower Court did not realise the fact that apart from the fact that the “medical report” was not one of the exhibits listed in the proof of evidence, the name of the 4th PW the prosecution intended

to field in the proof of its case, was Dr. Erhueh S.O., Central Hospital Warri; while PW5 gave his name as Ogheneovwoke Evhuh. It is in my considered view equally obvious from medical report placed before this Court by the Appellant through the “supplementary record of appeal” that the medical report which the lower Court in its wisdom sighted was signed by the 4th witness that the prosecution intended to call at the trial of the case and not PW5 that testified before the lower Court. In any case, the position of the law is clear that proof of evidence and I daresay exhibits set out therein, are not by themselves pieces of judicial evidence, in proof of a crime in the Court. See the cases of SANUSI V. STATE (2019) LPELR-48193(CA) and DADA V. FRN (2014) LPELR-24255(CA).

Flowing from all that has been said is that the lower Court in my considered view was not only wrong to have resolved the inconsistency in respect of whether or not PW3 was actually sexually assaulted on 1/2/2015, by resorting to a very material piece of documentary evidence which the prosecution deliberately decided to keep away from the said Court, but also did not confine

itself to the role given to it by law as an unbiased umpire in the case before it. This is because the lower Court took on the duty of the prosecution in resolving the inconsistency in the case of the said prosecution. The inconsistency in the date of the examination of PW3 by the medical practitioner (i.e. PW5) and the account by the Police, are too material to excuse; or to find an answer to; or resolve the inconsistency; in or by a document not exhibited or tendered. The fact of the alleged sexual assault of PW3 and when it occurred and which the prosecution intended to establish by the evidence of the medical doctor on the ground of his perceived independence, in my considered view was not established at all. The prosecution played a fast one apparently with the active support of the lower Court, to allow the evidence relating to the examination of PW3, and that is if it was carried out at all, to be given by PW5, who never disclosed that he was testifying based on a report issued by another doctor. This is nothing but persecution as it is not expected that the prosecution should set out to secure a conviction by all means.

In any case, I consider it

pertinent to say that even if the fact of the sexual assault or indecent assault of PW3 can be said to have been proved beyond reasonable doubt, (and this is not conceded), there was no scintilla or iota of evidence; medical or otherwise that linked the Appellant with the act of sexual assault suffered or experienced by PW3. I cannot but say that the observation made by the lower Court to wit: “There is no piece of evidence either from the prosecution or the accused person that the relationship between the family of PW3 and that of the Appellant was strained or unfriendly” does not constitute and cannot amount to irresistible circumstantial evidence linking the Appellant with the crime with which he was charged. The lower Court in my considered view would appear to have ignored the position of the law as stated by the Supreme Court in the case of LUCKY V. STATE (2016) LPELR-40541(SC). Therein, the Supreme Court stated thus:-
“On the issue of corroboration in rape cases, I am satisfied to express the view that where an accused person denies the charge, the evidence of corroboration which the Court must look for is the medical evidence

showing injury to the virginal or to other parts of the body of the prosecutrix which may have been occasioned in a struggle and semen stains on the clothes of the prosecutrix or that of the accused or on the place where the offence was alleged to have been committed. See Posu v. The State (Supra)….”

The clear impression that I have in respect of the instant case, is that the lower Court for reasons best known to it was hell bent or determined to convict the Appellant; hence it did not even bother to appreciate the defence of alibi raised by the Appellant in his statements. The said Court dwelled on the fact that the alibi raised by the Appellant was such that did not contain all the particulars that the Appellant ought to have raised to make it investigable by the Police. The lower Court would however appear to have closed its eyes to the admissions of PW1 that he did not investigate the alibi of the Appellant and which he never said he did not do, due to insufficiency of particulars in respect of the alibi. In the same vein, the lower Court would appear to have also closed its eyes to the fact that the reason PW4 gave for not investigating

the alibi of the Appellant was not that of “insufficient details in respect of the said alibi” but the weird reason that “there was nobody to ask”. Indeed, I believe it is better to re-produce what PW4 said on page 30 of the records in this regard. It goes thus: –
“It is correct but the case file at Daudu police station was also transferred to me. I see Exhibit ‘A’ made at Daudu police post by the accused person. I read Exhibit ‘A’ whilst I was investigating the case. I did not go to the celestial church to investigate whether or not the accused person was at the celestial church on the day of the incident because that particular day has passed and there was no body to ask. It is correct that the accused person also told me that he was in church when the incident happened.”

There are many cases decided by the Supreme Court and this Court in respect of the defence of alibi. One of such cases is the relatively old case of EBRE V. THE STATE (2001) LPELR-995(SC), (2001) 12 NWLR (Pt. 728) 617, and (2001) 6 SC 1. Therein, the Supreme Court dwelling on alibi and consequences of failure to

investigate/consider the defence of alibi given by an accused person stated: –
“In essence, alibi, as a defence, simply put, seeks to establish that at all times material to the commission of the offence, the accused person was nowhere near the locus in quo and ordinarily, therefore, he could not be expected to be involved in the physical execution of the criminal offence alleged. Generally, the accused person raises the defence of alibi. However, where evidence placed before the Court clearly demonstrates that the accused person seeks to rely on alibi, that defence cannot be denied to the accused person. Full consideration should be accorded to whatever plausible defence is relied upon by the defence as if it had been expressly pleaded or raised by the accused person. This is so because the Court is obliged to give due consideration to a defence either raised by the accused person or arising casually or by the tenor of the evidence placed before the Court once that evidence raises a reasonable doubt in the prosecution’s case.…
Where the prosecution fails to investigate the defence or the Court fails to examine or consider such

defence and it is demonstrable that the failure would lead to a miscarriage of justice, then any order of conviction arising in the circumstance, would, on appeal, be quashed and substituted with an order of discharge and acquittal.”

I will state again, that the Police never denied that they did not investigate the alibi of the Appellant or that they could not investigate the same, because it was considered fluid or lacking in specifics that they needed to investigate the same. Indeed, and having regard to some cases which I have read before now, the IPO in a case who knows what investigation entails, goes out with an accused person as a suspect to enable him show him where he (suspect) was, if the location is unclear from the statement of the accused/suspect. The IPOs in the instant case did not even go to interrogate the leadership of the Church where the Appellant stated that he was on 1/2/2015. Neither did they take any statement from the Appellant’s mother. The lower Court in my considered view was wrong not to have given the defence of alibi raised by the Appellant proper or adequate consideration on the ground that he did not mention those

he was with. Is it reasonable to expect a worshipper to know the names of other worshippers and reel the names off as if he was reciting a poem? This is a case in which the non-investigation of the Appellant’s alibi was highly detrimental to the proof beyond reasonable doubt by the prosecution of the crime the Appellant was charged with. This is more so as the prosecution never put forward the case that the Appellant was the only male that resided in the area where PW3 resided.

Flowing from all that has been said before now is that, even if the prosecution proved the fact of the sexual assault or sexual abuse of PW3, beyond reasonable doubt (and as I have earlier stated, I do not concede this), the Respondent have not linked the Appellant to the sexual assault or sexual abuse suffered by PW3, by any medical, or other corroborative evidence. Accordingly, the 3 issues formulated by the Appellant for the determination of the instant appeal are resolved in his favour; while the 2 issues, formulated by the Respondent, are resolved against it.

In the final analysis, the instant appeal is meritorious and it succeeds. Accordingly, the judgment of the

lower Court appealed against is hereby set aside; and judgment is entered for the Appellant acquitting and discharging him of the offence of defilement for which he was convicted and sentenced to “5 years imprisonment with five stroke of the cane” by the lower Court.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead Judgment prepared by His Lordship, Lokulo-Sodipe, JCA and agree completely with His Lordship that the appeal deserves to succeed.

The prosecution had not established beyond reasonable doubt the sexual assault or abuse of the PW3. The Appellant’s Defence of alibi was not investigated by the police, inspite clues given as to his where about on the day of the alleged crime. What is worse is that there was no proof of the defilement as relating to the ingredient of “penetration” as the Medical Report exhibited was not tendered nor the medical officer that allegedly examined the victim (i.e the prosecutrix) testify in evidence. It was PW5 that gave hearsay evidence on the Report.

On the whole, the hearsay documentary evidence in the nature of the medical report did not satisfy the

requirement of corroborative evidence for the prosecution’s reliance on same.

The Exhibit ‘B’ (i.e. pant with blood stain) tendered, was not proved to be linked to the prosecutrix nor the ‘blood’ defilement and by no other than the Appellant herein.

The lead judgment has meticulously justified why a conviction in the circumstances of the evidence led and the law must be quashed.

I agree in allowing the appeal and in setting aside the conviction and sentence. Appeal is allowed and the Appellant is discharged and acquitted, therefore.
Sentence passed is Quashed.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read before now a draft copy of the judgment delivered by my learned brother AYOBODE OLUJIMI LOKUKO – SODIPE, JCA and I agree with the reasoning and conclusion in the judgment.

Appearances:

Kunle Edun For Appellant(s)

E. Erebe (Assistant Director, Department of Appeals, Delta State) with him, M. U. Dibia (Assistant Chief State) and O. Eyesio (Senior State Counsel) For Respondent(s)

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