JAMES v. STATE OF LAGOS (2021)

JAMES v. STATE OF LAGOS

(2021)LCN/14936(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 08, 2021

CA/LAG/CR/722/2020

RATIO

APPEAL: RULES ON FORMULATION OF ISSUES AND GROUNDS OF APPEAL

There is no law limiting the number of grounds upon which an Appellant must bring his appeal. However, the issues must be birth from one or more of the grounds of appeal. See Lalapu vs. C.O.P (2019) LPELR-47814 (SC). Where however, an Appellant fails to raise an issue from a ground of appeal, that ground will be deemed abandoned and same struck out. The point I am getting at is that the Appellant counsel failed to formulate an issue from ground 2 of the notice of appeal. The implication of this is that the said ground 2 is deemed abandoned and same is hereby struck out. See Akinsuwa vs. State (2019) LPELR-47621 (SC); Ayinde vs. State (2018) LPELR-44761 (SC). PER EBIOWEI TOBI, J.C.A.

ACTION: CATEGORIES OF PERSONS THAT CAN SUE IN LAW

It is without doubt that in law, there are categories of persons who can sue in law. These persons are classified into natural persons and institutions, organizations or bodies called artificial persons having legal personality. The apex Court in AG Federation vs. ANPP & Ors (2003) LPELR-630 (SC) held so much in these words:
“The law recognises two categories of persons who can sue and be sued. They are natural persons with life, mind and brain, and other bodies or institutions having juristic personality. In Alhaji Mailafia Trading and Transport Company Limited v. Veritas Insurance Company Limited (1986) 4 NWLR (Pt. 38) 802, the Court held that a party who should commence action in Court must be a person known to law, that is, a legal person. The office of the Attorney-General, being a creation of the Constitution, is a legal person known to law. In the English case of Knight and Searle v. Dove (1964) 2 All ER 307, Mocatta, J. said at page 309: “The proposition was that no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly, or by common law, either (a) legal person under the name by which it sues or is sued or (b) a right to sue or be sued by that name.”
Same position was reiterated in Reptico S.A. Geneva vs. Afribank (Nig) Plc (2013) LPELR-20662 (SC); Carlen (Nig) Plc vs. Unijos & Anor (1994) LPELR-832 (SC); Abubakar & Ors vs. Yar’adua & Ors (2008) LPELR-51 (SC). PER EBIOWEI TOBI, J.C.A.
INTERPRETATION: HOW SHOULD THE CONSTITUTION BE CONSTRUED

It is settled law that the Constitution being the organic law is to be given the purposive interpretation: NAFIU RABIU vs. THE STATE (1981) 2 NCLR 293 at 326, PDP vs. INEC (2001) 1 WRN 1 at 32-33 and DIRECTOR OF SSS vs. AGBAKOBA (2003) 10 WRN 93 at 153-154. PER EBIOWEI TOBI, J.C.A.

WORDS AND PHRASES: MEANING OF THE WORD “INCONSISTENT”

In NIGERCARE DEVELOPMENT CO. LTD vs. ADAMAWA STATE WATER BOARD (2008) LPELR (1997) 1 at 37, Tobi, JSC (of blessed memory) defined “inconsistent” as follows:
“The word ‘inconsistent’, the verb variant of the noun inconsistency is the opposite of consistent. It means ideas or opinions which are not in agreement with each other or with something else. It also means mutually repugnant or contradictory, contrary, the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other as, in speaking the repeal of a statute which is inconsistent with the Constitution. See Black’s Law Dictionary Sixth edition, page 766. In the context of Section 1 (3) of the Constitution, it simply means the statute speaking quite a different language from the Constitution.
Equally, in A.G FEDERATION vs. A.G LAGOS STATE (2013) 16 NWLR (PT 1380) 264 at 329, Muhammad, JSC (now CJN) gave the word ‘inconsistency’ the following meaning: “Inconsistency’, in law, to me, can be taken to be a situation where two or more laws, enactments and or rules, are mutually repugnant or contradictory, contrary, the one to the other so that both cannot stand and the acceptance or establishment of the one implies the abrogation or abandonment of the other. It is thus, a situation where the two or more enactments cannot function together simultaneously.” See also GOVT OF PLATEAU STATE vs. NWAOKORIE (2014) LPELR (23368) 1 at 107 -108. PER EBIOWEI TOBI, J.C.A.
LEGISLATION: SCOPE OF THE ADMINISTRATION OF CRIMINAL JUSTICE LAW OF LAGOS STATE

What is the scope of the Administration of Criminal Justice Law of Lagos State? It seems to me that the general scope of the said legislation will be an aid in its construction in order to ascertain if the scarified Section 249 is inconsistent with the Constitution. It is the Long Title of a statute that explains the general scope of the statute. In OSAWARU vs. EZEIRUKA (1978) LPELR (2791) 1 at 17, Aniagolu, JSC asseverated:
“In an earlier period, in interpretation of Statutes, titles to statutes were not considered part of the statutes and were on that ground held to be excluded from consideration in construing the statutes… But the modern view, which appears now to be settled law, is that the title of a statute is an important part of the enactment and may be referred to for the purpose of ascertaining its general scope.”
See also BELLO vs. A-G OYO STATE (1986) LPELR (764) 1 at 71 and IDIONG vs. TRADITIONAL RULERS COUNCIL, IKOT ABASI (2013) LPELR (21389) 1 at 8-9. The Long Title of the Administration of Criminal Justice Law of Lagos State, 2011 reads as follows:
“A law on Criminal Justice Administration in the High Courts and Magistrates Courts of Lagos State and for other connected purposes.”
It is effulgent from this Long Title that the general scope of the law is for the administration of criminal justice in the High Court and Magistrates’ Courts in Lagos State. Given the circumscribed scope of the Administration of Criminal Justice Law of Lagos State 2011, which it must be emphasised, does not purport to create Lagos State, can it really be contended that Section 249 thereof which stipulates that the prosecutorial authority in the administration of criminal justice in Lagos State shall be in the name of The State of Lagos’ has the effect and implication of creating Lagos as a sovereign state, such that it will be inconsistent with the provisions of the Constitution? It would not seem to be so! I do not see how criminal prosecution in Lagos State being conducted in the name of The State of Lagos is not in agreement with the Constitution which provides for Lagos as one of the component States of the Sovereign State of Nigeria. The provision is not mutually repugnant, contradictory or contrary to the Constitution.

Therefore, it cannot be said to be speaking a different language from the Constitution such that it can be said to be Inconsistent with the Constitution.
By all odds, a Court has the power and jurisdictional competence to strike out a provision of a law which is inconsistent with the Constitution. But the power can only be exercised where, in fact, the said provision is inconsistent in the sense of offending the consistency rule under the Constitution. This is not the position in the diacritical circumstances of this matter. Section 249 of the Administration of Criminal Justice Law of Lagos State, 2011 is not inconsistent with the Constitution. The lower Court was wrong to have held that the said section “is void for being inconsistent with the provisions of the 1999 Constitution” and consequently struck out the provision.”
It could not have been put in any better words than this. To my mind, I think this settles the whole of issue one without more. For avoidance of doubt referring to another decision of this Court will not be out of place. This is yet another lengthy one but enjoy the ride. This is the case of Francis vs. State of Lagos (2020) LPELR-50453 (CA), where this Court per Ogbuinya JCA held:
“The kernel of the issue one, though seemingly knotty, is canalised within a narrow compass. It seeks to indict and puncture the juristic personality of the respondent, The State of Lagos, to prosecute the charge against the appellant. It is a subtle invitation to comb the authorities for the purport and features of a juristic entity.
By way of prefatory observations, a juristic person is an entity armed with the capacity to ventilate his/its complaints in judicio. Generally, it is only natural persons, id est, human beings and artificial persons, such as body corporate/corporation, an artificial being which is invisible, intangible and exist only in the contemplation of the law, that are imbued with the capacity to sue and be sued in law Court. The jural units, which the law has cloaked with the garment of legal personality, are: human beings, incorporated companies, corporate sole with perpetual succession, trade unions, partnerships and friendly societies. No action can be commenced by or against any party except a natural person(s) save such a party has been accorded by a statute, expressly or impliedly, or by common, either a legal personality under the name by which it sues or is sued or right to sue or be sued by that name. Where either of the parties is not a legal person, capable of exercising legal rights and obligations in law, the action is plagued by incompetence and liable to be struck out on account of want of legal personality, see Agbonmagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. (1961) 2 SCNLR 317; Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt.105) 558; Ataguba & Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt. 927) 429; A. G., Anambra State v. A. G., Fed (2007) 12 NWLR (Pt. 1047) 4; Admin./Exec., Estate, Abacha v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; M.M.A. Inc. v N.M.A. (2012) 18 NWLR (Pt. 1333) 506; Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; BB. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Interdrill (Nig) Ltd v. U.B.A. Plc (2017) 13 NWLR (Pt. 1581) 52; Dairo v. Regd. Trustees, T. A. D., Lagos (2018) 1 NWLR (Pt. 1599) 62; Bajehson v. Otiko (2018) 14 NWLR (Pt. 1638) 138; Socio-Political Research Dev. v. Min., FCT (2019) 1 NWLR (Pt. 1653) 313; Moses v. NBA (2019) 8 NWLR (Pt. 1673) 59; Persons, Name Unknown v. Sahris Intl Ltd. (2019) 13 NWLR (Pt. 1689) 203. PER EBIOWEI TOBI, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ONUOHA JAMES APPELANT(S)

And

STATE OF LAGOS RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The judgment that culminated into this appeal is the judgment of Hon. Justice A.A. Akintoye (Mrs) of the Lagos Division of the High Court of Lagos State delivered in Charge No. LD/2405c/2016 – State of Lagos vs. Onuoha James on 1/6/2020. The Appellant (then Defendant) was arraigned before the lower Court vide an information on a charge of defilement contrary to Section 137 of the Criminal Law of Lagos State 2011 whereupon he pleaded not guilty. The matter went on trial and after the addresses of counsel for the respective parties were adopted on 14/1/2020, the matter was adjourned to 25/3/2020 for judgment. The judgment was however delivered on 1/6/2020 due to the Covid-19 epidemic and lockdown in place which restricted movements. In the judgment of the lower Court found on pages 382 – 402 of the records (pages 1-21 of the judgment) particularly on page 401 of the record (page 20 of the judgment), the lower Court found the Appellant guilty whereupon it held thus:
“I have no doubt that the Prosecution has established the ingredients required to prove a case of defilement against

the Defendant and I therefore find the Defendant Onuoha Ikenna James guilty as charged. The Defendant Onuoha Ikenna James is accordingly convicted.”

In its sentencing found on page 402 of the record (page 21 of the judgment), the lower Court held:
“I have listened to the plea of allocutus made by Learned Counsel to the Defendant and have also taken into consideration that he is a first time offender. However I find it so difficult and sad to believe that a grown man would take any pleasure from defiling a child. This must stop in our society and all over the world for that matter. Children must be allowed to be children, let them enjoy their childhood. I hereby sentence you Onuoha Ikenna James to fifteen years imprisonment. The said imprisonment is to start from today 1st June 2020.
This is the judgment of this Court.”

The Appellant dissatisfied with the judgment of the lower Court and exercising his constitutional right of an appeal initiated this appeal vide a notice of appeal dated 8/7/2020 containing sixteen grounds of appeal found on pages 403-421 of the records. The grounds bereft of their particulars are hereunder

reproduced:
GROUND ONE (1)
The learned trial Judge erred in law when she assumed jurisdiction to try a matter instituted by and prosecuted in the name of a non-juristic personality and its decision, conviction and sentencing is accordingly a nullity.
GROUND TWO (2)
ERROR IN LAW
The Learned Trial Judge erred in law when his Lordship delivered his judgment on 1st June, 2020, two months outside the time period constitutionally allowed under the Constitution of the Federal Republic of Nigeria (1999) (as amended).
GROUND THREE (3)
ERROR IN LAW
The Learned Trial Judge erred in law when his lordship believed the age claimed by the PW1 and held as follows:
“What was the age of the victim who was defiled? PW1, the victim herself stated, while giving evidence that she was 15 years old, having been born on 4th March, 2001. The victim was therefore a child at the time of the incident…” See pages 10 and 11 of judgment.
GROUND FOUR (4)
ERROR IN LAW
The Learned Trial Judge erred in law and made a perverse finding that PW1 was a child at the time of the alleged defilement and in the process glossed

over the lack of credible documentary evidence relating to her true age.
GROUND FIVE (5)
ERROR IN LAW
The Learned Trial Judge erred in law and made a perverse finding, when his lordship made the following finding:
“The PW1, the victim in this case opened the door for him. Thus, he was at the scene of the crime when the crime occurred.
“The evidence of PW1 has been stated above. As it pertains to the Defendant, stated that the Defendant pushed her unto the bed in her uncle’s room and she started to shout and cry and he used a pillow to cover her mouth. He took his penis out and put it inside her vagina and began to have sexual intercourse with her. This of course implies penetration of the vagina” See page 12 of judgment.
GROUND SIX (6)
ERROR IN LAW
The Learned Trial Judge erred in law and reached a wrong conclusion, when his lordship held as follows:
“To further support the issue of sexual activity, I refer to the evidence of Dr. Alagbe Oyedeji, a Medical Doctor with Lagos State University Teaching Hospital Mirabel Centre to the effect that bruises and redness had been found on

PW1’s genitals. She has lacerations and cut on her hymen. The conclusion reached by them was that there had been forceful penetration into PW1’s vagina, which was consistent with PW1’s declaration that there had been penile penetration into her vagina…” See page 12 of judgment.
GROUND SEVEN (7)
ERROR IN LAW
The Learned Trial Judge erred in law and thereby inflicted severe injustice on the Appellant when his lordship believed that PW1 was a child and was defiled by the Appellant on 4th January, 2016.
GROUND EIGHT (8)
ERROR IN LAW
The Learned Trial Judge erred in law when his lordship convicted the Appellant for defilement of PW1, based on the parole evidence of Dr. Alagbe Oyedeji alone and held as follows:
“I am not unmindful of the fact that the learned counsel to the Defendant has argued that non-tendering of the Medical Report by PW2, shows that there was no penetration and furthermore that the said Dr. Alagbe Oyedeji (PW2) was not the one who initially attended to the PW1 (the victim), but rather one Dr. Olaniyi, who has relocated abroad and no longer works at Lagos State University

Teaching Hospital. I however agree with the learned Prosecutor that it is not mandatory that a medical report should be tendered by the person who prepared it as any medical officer from the same organization who has been shown to have knowledge of the contents of the medical report can give evidence in respect of the matter.” See page 12 of the judgment.
GROUND NINE (9)
ERROR IN LAW
The Learned Trial Judge erred in law and wrongly came to the finding that the evidence of PW1 has been corroborated to the effect that the Appellant was responsible for the forceful penetration into the PW1’s vagina, when she held thus:
“Has the evidence of the child, PW1 (the victim) been corroborated?
“The evidence of PW2, Dr. Alagbe Oyedeji corroborates the evidence of PW1 (the victim) in this case. He stated that the examination carried out on PW1 showed that there was forceful penetration of PW1’s vagina…
“In this case the PW2, the Doctor has corroborated PW1’s assertion that someone sexually defiled her by forcefully penetrating her vagina. The only person who was present on the day of the

incident, on the premises where PW1 lived and who has not denied he was present at the said time is the Defendant” See pages 14-15 of judgment.
GROUND TEN (10)
ERROR IN LAW
The Learned Trial Judge erred in law and consequently arrived at a perverse decision when his lordship gave credit to the testimonies of the IPO from Langbasa Police Station (PW4) and the IPO from Zone 2 Police Headquarters (PW5) linking the Appellant with the defilement of PW1 on 4th January, 2016 when his lordship held thus:
“PW4, the IPO at Langbasa also stated that after a report of defilement was made at the station by PW3, the uncle of the victim (PW1), she was given a medical note to go to the Badore Medical Health Centre. She received a report back which stated that PW1 had been sexually assaulted.
“PW5, the IPO from Zone 2 also conducted an investigation as the case file was transferred at the request of the Defendant to him at Zone 2. He also stated that the investigation revealed a doctor’s report contained in the transferred case file which showed that there had been forceful canal knowledge of the victim.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“…when an IPO gives evidence, he is giving evidence on his investigation, his evidence and the documents that he tendered are not hearsay. In other words, the evidence of the IPO should be given due consideration by the Courts” – Page 15 of judgment.
GROUND ELEVEN (11)
ERROR IN LAW
The Learned Trial Judge erred in law and made the wrong inference when his lordship held as follows:
“In addition to proving the essential ingredient of the offence, the PW1 has identified the Defendant as being the person who had sexual intercourse with her. It is trite that the best identification of an accused person is the evidence given by the victim of the crime with which the accused has been charged. See the case of Okosi V. State (1989) 1 NWLR (Part 100) 642 SC” See page 16 of judgment.
GROUND TWELVE (12)
ERROR IN LAW
The Learned Trial Judge error in law when his lordship imputed the admission of commission of the crime on the Appellant as follows:
“The Defendant has never denied he was at the scene of the incident. As he said himself, he went to the apartment of PW3 who is PW1’s

uncle and PW1 let him into the apartment when he told her he was the landlord, she also told him that her uncle was not at home.
“PW3, Kenneth Igwe also stated that the Defendant told him “on the phone that he had come to his house on the day of the incident.” See page 17 of judgment.
GROUND THIRTEEN (13)
ERROR IN LAW
The Learned Trial Judge erred in law when his lordship failed to properly evaluate the evidence of Rev. Jeremiah (DW2) and held that the said testimony was not favourable to the Appellant’s case, holding that:
“I also refer to the evidence of the 2nd Defence Witness who admitted during cross examination that he did not know the time the incident occurred, he did not know what had happened to PW1, Chindera on the day of the incident as he did not go into PW3’s apartment on the day of the incident and to crown it all, he did not know the exact time the Defendant left the premises. In fact, I do not know what value this witness has added to the case of the Defendant, Ikenna James Onuoha.” See page 17 of judgment.

GROUND FOURTEEN (14)
ERROR IN LAW
The Learned Trial Judge erred in law when his lordship held thus:
“The Defendant to my mind also failed to help his case by refusing to attend Langbasa Police Station where a report had been made of his defilement of PW1. The IPO handling the matter, PW4 made several calls to him to invite him to the station to be interviewed and give his own account of the incident. Rather than do this the Defendant went to another Police Station and reported the IPO and other officers and alleged that PW3, the victim’s uncle was trying to blackmail him.
“Upon investigation of this allegation as PW5 stated in Court, they found that PW1 had indeed been defiled and ended up charging the Defendant to the Magistrate Court. This was after a second independent investigation of the case done by another Police Station and its Officers.”
GROUND FIFTEEN (15)
ERROR IN LAW
The learned Trial Judge erred in law when his lordship justified in law, the evidence of a purported medical report emanating from a medical examination of an alleged victim of defilement carried out eight (8) days after the alleged defilement, when his lordship held as follows:

“I am not also unmindful of the fact that the Defence Counsel made much ado about who sent the PW1 to Mirabel Centre and that PW1 visited Mirabel Centre several days after the incident… I find it very difficult to comprehend the suggestion of learned counsel to the Defence that “a list of things could have happened in between 4th January 2016 and 12th January 2016” Is learned counsel for the Defence suggesting that in between this time, someone else took the opportunity to and did defile the child victim, PW1? I do not believe this to be so.”
GROUND SIXTEEN (16)
ERROR IN LAW
The judgment of the lower Court is unreasonable, perverse, unwarranted and cannot be supported having regard to the evidence before it.

The Appellant’s brief dated and filed 28/9/2020 but deemed as properly filed and served on 30/9/2020 was settled by Uchechukwu V. Obi, SAN. In the Appellant’s brief learned senior counsel formulated the following issues for determination:
1. Whether the information against the Appellant was preferred by a person recognized in law.
2. Whether the ingredients of defilement were present in the

evidence before the lower Court.
3. Whether the prosecution was able to prove its case beyond reasonable doubt against the Appellant.

On issue one, it is the contention of learned silk that a criminal trial prosecuted on behalf of the State of Lagos is a nullity and the Court has no jurisdiction ab initio to entertain the charge. He relied on Madukolu vs. Nkemdilim (1962) 1 All NLR 582; A.G Kwara State vs. Adeyemo (2016) LPELR-4117 (SC); Sections 2(2) and 3(2) of the Constitution of the Federal Republic of Nigeria. Learned silk argued that it is strange and unknown to law and the Constitution of Nigeria that the State of Lagos can institute a criminal proceeding in Lagos State in the light of Section 318 and Part 1 of the First Schedule to the 1999 Constitution, as amended. It is the submission of learned senior counsel that a community reading of the Constitution, the case of Aregbesola vs. Oyinlola (2010) LPELR-3805 (CA) and Sections 1 and 2 of the State Government (Basic Constitutional and Transitional Provisions) Act, Laws of the Federation, 2004 clearly establishes the fact that what is permissible in law is Lagos State and not State of Lagos.

It was stated by senior counsel that the duty of the Court when interpreting a provision of the Constitution is to read and construe together all provision of the Constitution unless there is a very clear reason that a particular provision of the Constitution should not be read together. He cited Justice Raliat Elelu-Habeeb (Chief Judge of Kwara State) & Anor vs. The Hon. Attorney-General of the Federation & 2 Ors (2012) 2 SC (Pt. 1) 45; Marwa vs. Nyako (2012) 1 SC (Pt. 111) 44; Knight Frank & Rutley vs. Attorney General of Kano State (1998) LPELR-1694 (SC); Esenowo vs. Ukpong (1999) 4 SCNJ 109 @ 114; Sections 1 and 2 of the States (Creation and Transition Provisions) Act contained in the annotated Laws of the Federation, 2014, Vol. 16 at pages 354-355..

It is the position of learned silk that the only instance when a non-juristic person can institute a criminal proceeding is when such non-juristic person is mentioned in the statute. In support of this position, he called in aid the cases of Ndi Okereke Onyuike vs. The People of Lagos State (2013) LPELR-24809; Isuofia & Anor vs. Umueze Village Union & 11 Ors (2011); Ataguba & Co. vs. Gura Nig. Ltd

(2005) 8 NWLR (Pt. 27) 429. Senior counsel therefore made an attempt to distinguish this case currently on appeal from that of Adebayo vs. State (2012) LPELR-9464 (CA) and Umaru vs. State (2009) LPELR-3360 (SC). Learned senior counsel also commended to this Court the decision of the Osun State High Court in Suit No. HIL/M.47/2016 – Kanmi Ajibola vs. Government of Osun State & 2 Ors delivered on 14/12/2017 by Hon. Justice O.D. Afolabi; which is of persuasive authority. It is the final submission of learned silk on this issue that the information which is the foundation of this action currently on appeal is grossly incompetent.

On issue two, counsel asked the question whether any of the ingredients of defilement was positively placed as evidence before the Court against the Appellant, through any of the means stated by the lower Court in its judgment? A question which he answered in the negative. With respect to the age of the PW1 (the victim), it is the contention of learned silk that there were inconsistencies in her age which inconsistency simply point to the fact that her real age was unknown to the Court. The effect of the

uncertainty of PW1’s age, learned senior counsel submitted is that the charge of defilement preferred against the Appellant was not sustained, as the doubt in the age of the PW1 ought to be resolved in favour of the Appellant referring to Ankwa vs. State (1969) LPELR-25460 (SC); Ugboji vs. State (2017) LPELR-43427 (SC); Nweze vs. State (2017) LPELR-42344 (SC). Learned senior counsel argued that in the face of the foregoing inconsistencies regarding the age of PW1, the lower Court ought to carry out an investigation into the age of the PW1. Counsel relied on Modupe vs. State (1988) LPELR-1888 (SC); Akpan vs. State (2000) 3 NWLR (Pt. 649) 498 @ 503. Learned senior counsel posited that in the light of the aforementioned cases, the PW1 was incapable of giving evidence as to her age and as such her birth certificate ought to have been tendered at the trial, which the Respondent failed to do. He placed reliance on Onah vs. State (1985) 3 NWLR (Pt. 12) 236 @ 244.

Learned senior Counsel relying on Adebayo vs. State (2014) LPELR-22988 (SC); Alufohai vs. State (2014) LPELR-24215 argued that the lower Court failed to properly identify the Appellant as the one

who defiled the PW1 as there was no identification parade carried out. Learned silk argued that the lower Court was in error when it convicted the Appellant on the eye witness account of the PW1. He further argued that PW1 being the victim of the offence, cannot be an eye witness as an eye witness is somebody other than the alleged victim. For this he relied on the definition of an eye witness from the Black’s Law Dictionary 10th Edition @ page 707. It is the submission of learned senior counsel that the evidence of all the Prosecution witnesses did not prove beyond reasonable doubt that the Appellant had sexual intercourse with the PW1. Counsel argued that the evidence of PW2 was clearly what he alleged that PW1 narrated to the doctor who attended to her when she visited the Mirabel Center and there was no documentary evidence to support his oral testimony. Learned senior counsel relied on Section 167(d) of the Evidence Act, 2011 and Ewugba vs. State (2017) LPELR-43833 (SC) on the consequence of not tendering the documents. On the evidence of PW3, PW4 and PW5, it was the assertion of learned senior counsel that their testimonies were based on what PW1

had told them and not from investigation carried out. Counsel argued that from all the surrounding facts, there was no evidence before the Court, sufficient to establish that there was any offence of defilement committed against the PW1, neither was there any evidence linking the Appellant to the offence but that the lower Court only acted on speculation. He relied on Igabele vs. State (2006) 6 NWLR (Pt. 975) 100 @ 119.

On the issue of corroboration, learned silk cited Obi vs. State (2016) LPELR-40543 (CA); Queen vs. Ekelagu (1960) LPELR-40923 (SC); Ahmed vs. Nigeria Army (2016) 17 NWLR (Pt. 1540) 34 @ 60; Okabichi & Ors vs. The State (1975) All NLR 69 @ 77-78. Learned silk further cited Shofolahan vs. State (2013) 17 NWLR (Pt. 1383) 281; Hamza vs. State (2016) LPELR-41557 (CA) @ 19-20; Abiodun vs. State (2016) LPELR-41399 @ 11-12 in arguing that the testimony of PW2, PW3, PW4 and PW5 respectively must be independent, support the main evidence and must implicate the Appellant, which it failed to do.

On issue three, learned silk cited Jibrin vs. FRN (2018) LPELR-43844 (SC); Ankpegher vs. The State (2018) LPELR-43906 (SC); which cases borders on

burden of proof. He argued that the effect of the refusal to tender the medical reports even though frontloaded and contained in the Court’s file, is that it is not before the Court and the Court cannot make reference to them. For this position, he relied on Lucky vs. State (2016) LPELR-40541 (SC). Counsel argued that this is made worse by the fact that the medical reports on which evidence was given by PW2 and PW5, were not prepared by them. At this point, learned silk raised the issue of alibi in the Appellant’s favour.

It is the final submission of learned senior counsel relying on Afolalu vs. State (2010) LPELR-197 (SC) that doubt was created in the Respondent’s case and as such same should have been resolved in the Appellant’s favour. He therefore urged this Court to allow the appeal and set aside the judgment of the lower Court.

The Respondent’s brief dated and filed 17/11/2020 but deemed as properly filed and served on 19/11/2020 was settled by Adetutu Oshinusi Esq from the chambers of the Attorney General of Lagos State, Ministry of Justice. In the Respondent’s brief, learned counsel raised the following

issues for determination.
1. Whether the State of Lagos as it appears in the information filed against the Appellant at the lower Court is a proper prosecutorial authority.
2. Whether from the totality of the evidence before the lower Court the guilt for the offence of defilement was established beyond reasonable doubt so as to ground the conviction and sentencing of the Appellant.

On issue one, it is the submission of learned counsel that the use of the name ‘The State of Lagos’ as the prosecutorial authority in Lagos State does not in any way suggest the sovereignty of Lagos State within the Federation of Nigeria. Counsel placed reliance on the definition of a state as contained in the Black’s Law Dictionary, Sections 2, 3(1) and 4(7) of the 1999 Constitution, Sections 249, 250 – 253 of the Administration of Criminal Justice Law of Lagos State (2011);Onyuike vs. The People of Lagos State & Ors (2013) LPELR-24809 (CA) and the recent decision of this Court in The State of Lagos vs. Femi Omotayo (unreported) in Appeal No. CA/L/1110/16 delivered in July 2020, to buttress this point. Counsel contended that the Constitution

simply provides for Lagos as one of the States of the Federation but never provided for any style of nomenclature and as such construing the Constitution as a whole, the use of the nomenclature ‘The State of Lagos’ does not show or suggest that the Respondent is arrogating sovereignty to itself. He called in aid the cases of AG Ondo vs. A.G Federation & 35 Ors (2002) 7 MJSC 184; Nafiu Rabiu vs. State (1980) NSCC 291 @ 300-301; Global Excellence Communication Ltd & Ors vs. Duke (2007) NWLR (Pt. 1059) 22 @ 47-49, (2007) 7 SC (Pt. II) 162 @ 175-176.

On the strength of the above, learned counsel urged this Court to discountenance the argument of the Appellant counsel.

On issue two, counsel relied on the cases of Adeniji vs. The State (2001) FWLR (Pt. 57) 809 @ 824; Nkebisi vs. The State (2010) 5 NWLR (Pt. 1188) 471; Osuagwu v. State (2013) LPELR-19823 (SC); Ojuri vs. State (2012) LPELR-19699; Igabele vs. The State (2006) 6 NWLR (Pt. 975) 100; Section 135(1) of the Evidence Act, 2011 which are to the effect of the standard of proof and on whom lies the burden of proof in criminal trials.

Learned counsel relied on Adonike vs. The State

(2015) LPELR-24281 (SC); Ogunbayo vs. State (2007) LPELR-2323 (SC); Edwin Ezigbo vs. State (2012) NWLR (Pt. 1326) 318 on the ingredients to be proved in a charge of defilement. Counsel argued that by the oral testimonies of the prosecution witnesses, the most essential ingredient, which is penetration was firmly established at the lower Court as the PW1, who is the victim of the offence identified the Appellant as the one who committed the offence while also giving testimony of her age. Learned counsel argued that assuming there are inconsistencies with respect to the age of the PW1, such inconsistencies are not material in determining the culpability of the Appellant. He cited Isibor vs. State (2005) 1 NCC 221; Nkemji vs. State (2005) 1 NCC 369; Mamuda vs. State (2019) LPELR-46343 (SC); Musa vs. State (2019) LPELR-46350 (SC). Counsel relying on Yakubu vs. Jauroyel (2014) LPELR-22732 for the definition of contradiction, submitted that there are no contradictions in the evidence of the prosecution in proving the case of defilement of the PW1 at the lower Court.

Counsel further relied on Abdu vs. State (2016) LPELR-41461 (SC); Ojo vs. State (2018)

LPELR-44600 (SC) on the various means by which the commission of an offence can be proved and Aiguoreghian vs. State (2004) LPELR-270 (SC); Chudi Verdical Co. Ltd vs. Ifesinachi (2018) LPELR-44701 (SC) in submitting that from the direct evidence of the PW1, there are no other probabilities, that could give a possible likelihood that another person than the Appellant, was likely to have committed the offence. Counsel argued that the PW1 having being born on 4/3/2001 and which makes her at the time of the commission of the offence, above 14years, her testimony does not require corroboration. He relied on Section 209 of the Evidence Act, 2011 and Ogunbayo vs. State (supra) in submitting that in any ways, the evidence of PW2, PW4 and PW5 are all independent evidence that corroborate the evidence of PW1. Counsel posited that the evidence of PW2 which is an expert opinion, clearly corroborates the direct evidence of PW1. Counsel further posited on the issue of tendering of medical reports that, it is not mandatory that a medical report should be tendered by an expert who carried out the medical examination or that the report must be tendered at all where a medical

expert has testified orally in Court. He relied on Sections 68(1) and (2) and 71 of the Evidence Act 2011; Uwa Printers. Vs. Investment Trust Ltd (1988) 5 NWLR (Pt. 92) 110.

Counsel further submitted that the testimony of PW1 was further corroborated by the evidence of PW4 and PW5 who gave evidence of their investigations and the steps taken during their investigations. Counsel stated that all the witnesses led in evidence by the prosecution at the lower Court are all vital and material witnesses necessary to establish the prosecution’s case. It is the final contention of learned counsel that the failure of the police to investigate the 4 year old daughter of PW3 who was alleged to be with the victim on the day of the commission of the offence, should not in any way vitiate the decision of the lower Court. He therefore urged this Court to dismiss the appeal and affirm the judgment of the lower Court.

The Appellant exercising his constitutional right of appeal filed a reply brief on 18/11/2020. Mostly, the arguments in the reply brief were a re-argument by the Appellant on the conflicting or contradictory evidence of the Respondent on the age of PW1

and the failure to tender medical report. This is not the purpose of a reply brief. The reply brief is not an opportunity to add more voice to earlier arguments or re-echo earlier arguments. It is not an opportunity to have a second bite at the cherry. A reply brief is meant to reply to the issues raised in the Respondent’s brief which was not covered in the brief of the Appellant. It is called a reply and not a re-opening of issues addressed earlier or amplifying the earlier arguments. See Enilolobo vs. NPDC & Anor (2019) LPELR-49512 (SC); Aweto vs. FRN (2018) 8 NWLR (Pt. 1622) 527.
In the circumstance I will not rehash the arguments in the reply brief.

I have examined the issues for determination as formulated by the counsel to the respective parties and I make bold to say that the issues are one and the same apart from the fact that the Appellant formulated three issues while the Respondent formulated two issues. The Appellant’s issues 2 and 3 are the Respondent’s issue 2. The Respondent combined Appellant’s issue 2 & 3 as his own issue 2. Whichever way I go is fine but I think I will take Appellant’s issue 1

and Respondent’s issue 2. This marriage can only end here. As for the final determination of this appeal, such marriage will not be possible. It is either the appeal succeeds and is allowed or it fails and it is dismissed. The issues for determination in this appeal therefore are to wit:
1. Whether the information against the Appellant was preferred by a person recognized in law.
2. Whether from the totality of the evidence before the lower Court the guilt for the offence of defilement was established beyond reasonable doubt so as to ground the conviction and sentencing of the Appellant.

In the resolution of the issues for determination, I will be considering issue one first and then go on to consider issue two. But before I do that, I will like to comment that the Appellant’s appeal is hinged on sixteen grounds of appeal. The Appellant’s counsel has therefore formulated the three issues for determination from the grounds of appeal. There is no law limiting the number of grounds upon which an Appellant must bring his appeal. However, the issues must be birth from one or more of the grounds of appeal. See Lalapu vs. C.O.P (2019)

LPELR-47814 (SC). Where however, an Appellant fails to raise an issue from a ground of appeal, that ground will be deemed abandoned and same struck out. The point I am getting at is that the Appellant counsel failed to formulate an issue from ground 2 of the notice of appeal. The implication of this is that the said ground 2 is deemed abandoned and same is hereby struck out. See Akinsuwa vs. State (2019) LPELR-47621 (SC); Ayinde vs. State (2018) LPELR-44761 (SC).

Now let me address the substantive issues in this appeal starting from issue one. The said issue reads:
Whether the information against the Appellant was preferred by a person recognized in law.

The Appellant’s counsel has argued that the appellation “The State of Lagos” is not a legal personality empowered by law to sue and be sued and as such instituting the criminal charge in that name divested the lower Court from having jurisdiction over the matter.
It is without doubt that in law, there are categories of persons who can sue in law. These persons are classified into natural persons and institutions, organizations or bodies called artificial persons having

legal personality. The apex Court in AG Federation vs. ANPP & Ors (2003) LPELR-630 (SC) held so much in these words:
“The law recognises two categories of persons who can sue and be sued. They are natural persons with life, mind and brain, and other bodies or institutions having juristic personality. In Alhaji Mailafia Trading and Transport Company Limited v. Veritas Insurance Company Limited (1986) 4 NWLR (Pt. 38) 802, the Court held that a party who should commence action in Court must be a person known to law, that is, a legal person. The office of the Attorney-General, being a creation of the Constitution, is a legal person known to law. In the English case of Knight and Searle v. Dove (1964) 2 All ER 307, Mocatta, J. said at page 309: “The proposition was that no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly, or by common law, either (a) legal person under the name by which it sues or is sued or (b) a right to sue or be sued by that name.”
Same position was reiterated in Reptico S.A. Geneva vs. Afribank (Nig) Plc (2013)

LPELR-20662 (SC); Carlen (Nig) Plc vs. Unijos & Anor (1994) LPELR-832 (SC); Abubakar & Ors vs. Yar’adua & Ors (2008) LPELR-51 (SC).
From the foregoing, it therefore means that where I find that the contention of the Appellant’s counsel represents the true position of the law, I will have no other option than to hold that the lower Court had no jurisdiction to try the Appellant.
The Respondent’s counsel holds a contrary position. It is the contention of the Respondent’s counsel that the Respondent was imbued with legal personality by virtue of Section 249 of the Administration of Criminal Justice Law of Lagos State, 2011. Before I proceed, let me settle a score. The Appellant’s learned senior counsel has argued that the Appellant was arraigned under the Criminal Law of Lagos State, 2011 and in that law, there is no reference to ‘The State of Lagos’ as the prosecutorial authority, rather it is ‘The People of Lagos’. It would seem that the observation of learned senior counsel is correct on this point. Although I find as a fact that the appellation ‘The State of Lagos’ was

referenced under Section 249 of the Administration of Criminal Justice Law of Lagos State, 2011 (“ACJL”). The said section reads”
“Prosecutorial authority shall be exercised in the High Court in the name of “The State of Lagos”
Having said this, the question that remains to be answered is, having charged the Appellant under the Criminal Law of Lagos State, can the Respondent make reference to the ACJL? This question I will answer in the affirmative. It is no doubt that the House of Assembly of a State by virtue of Section 4(7) has been empowered by the Constitution to legislate in respect of laws to ensure for the peace, order and good government of a State. It is in the exercise of this power granted the House of Assembly that the Lagos State House of Assembly enacted the Administration of Criminal Justice Law of Lagos State, 2011. The long title of the law reads:
“A LAW ON CRIMINAL JUSTICE ADMINISTRATION IN THE HIGH COURTS AND MAGISTRATES’ COURTS OF LAGOS STATE AND FOR CONNECTED PURPOSES.”
From a clear reading of the long title as reproduced above, it is obvious that just as the

Criminal Law of Lagos State was enacted as a law with respect to offences, so also was the ACJL. It therefore means that both of them can run concurrently as they are both complimentary to each other. While ACJL is a procedural law, the Criminal Law of Lagos State is the substantive law that contains the substantive offences. The ACJL outlines the step by step actions to be taken in the prosecution of the offences contained in the Criminal Law of Lagos State. Both laws were made for the prosecution of offences in the Magistrate and High Courts of Lagos State.
Having laid out this foundation, let me now say that whichever appellation is used as the prosecutorial authority, whether ‘The State of Lagos’ as contained in the ACJL or ‘The People of Lagos” as contained in the Criminal Law of Lagos State, will be an appropriate prosecutorial authority for criminal matters in the state. With due respect to the learned silk, nobody is misled in any way as to who the prosecutorial authority is. It is in the light of this that I do not see any merit in the argument of the Appellant’s counsel and all the cases cited in this regard.

I have examined closely the arguments of learned counsel for the respective parties and I make bold to say that the crux of this issue is on the interpretation of Section 249 of the Administration of Criminal Justice Law of Lagos State, 2011 (“ACJL”) and whether same is consistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the Constitution”). Learned senior counsel has argued that there is no state as ‘the State of Lagos’ as what the Constitution made provision for is Lagos State. Counsel further contended that the appellation ‘The State of Lagos’ not being a creation of the Constitution or a statute cannot be conferred with legal personality.
With due deference to the contention of learned silk, it is no doubt that the Respondent herein is a creation of statute by virtue of Section 249 of the ACJL having been established as the nomenclature for prosecution of criminal cases in the High Court of Lagos State. This much counsel conceded to in its paragraph 5.1.9 of the Appellant’s brief citing the case of Ndi Okereke Onyuike vs. The People of Lagos State

(2013) LPELR-24809 (CA). It can be gleaned from the argument of learned silk that amidst the whole argument, learned silk is contesting the fact, whether the use of the nomenclature ‘The State of Lagos’ does not amount to arrogating sovereignty to Lagos State whereas the nomenclature used by the Constitution is Lagos State. This answer to this question was proffered in the more recent judgment of this Court per Ogakwu, JCA in State of Lagos vs. Omotayo (2020) LPELR-50101 (CA), a case which is impari materia with this current appeal at hand. Though a lengthy one, at the end of the day, it is worth the read. In that case, his lordship held:
“The crux of the disceptation in this matter is whether the provision of Section 249 of the Administration of Criminal Justice Law of Lagos State, 2011 is inconsistent with the provision of the Constitution. With due deference to counsel, it cannot be confuted that by Section 4(7) of the Constitution, the House of Assembly of a State has power to make laws for the peace, order and good government of the State. It can also not be confuted, indeed it is abecedarian, that the Constitution is the

supreme law and that by Section 1(3) of the Constitution, any law that is inconsistent with the provisions of the Constitution shall to the extent of the inconsistency be void. The Appellant before us is a creature of statute, it has legal persona having been established as the nomenclature for the prosecution of cases in the High Court in Lagos State vide Section 249 of the Administration of Criminal Justice Law of Lagos State, 2011. See FAWEHINMI vs. NBA (NO. 2) (1989) 2 NWLR (PT 105) 558, A.G ANAMBRA STATE vs. A.G FEDERATION (2007) 12 NWLR (PT 1047) 1 and ONYUIKE vs. THE PEOPLE OF LAGOS STATE (supra) at 82-83. Howbeit, the salient contest is whether the provision for the prosecutorial authority as ‘The State of Lagos’ connotes the establishment or creation of a sovereign state as held by the lower Court and contended by the Respondent before us, in which case, it would be inconsistent with the provisions of the Constitution. We will find out in a trice. Let me start by setting out the Legislative provisions on which learned counsel have anchored their submissions. First is the chafed Section 249 of the Administration of Criminal Justice Law of Lagos State, 2011.

It reads:
“249. Prosecutorial authority shall be exercised in the High Court in the name of “The State of Lagos”
Next are the stipulations of Sections 2 and 3 (1) of the Constitution. They provide thus:
“2 (1) Nigeria is one indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.
(2) Nigeria shall be a Federation consisting of States and a Federal Capital Territory.”
“3 (1) There shall be thirty six states in Nigeria, that is to say, …Lagos…”
By the above provision of the Constitution, Lagos is one of the thirty six component States of the Nigerian Sovereign State. The learned counsel on both sides are agreed that the Constitution has not stipulated how the States are to be addressed, whether the word State is to appear after the name of the State or otherwise. The Respondent has however urged the Court to inferentially deduce that, because in Part II of the First Schedule to the Constitution, in defining the boundaries of the Federal Capital Territory, the word ‘State’ is used after the names of the various

States having boundary with the Federal Capital Territory, and that the Seventh Schedule setting out the Oath of Office of Governor, the word ‘State’ is used after the name of the particular State; that the Constitution can only be interpreted to intend that the word ‘State’ is to appear after the name of the State and that by Section 249 of the Administration of Criminal Justice Law having provided for ‘The State of Lagos’, it was inconsistent with the provisions of the Constitution.
In unraveling this poser, it is my differential view that a pragmatic and purposeful approach is to be employed. It is settled law that the Constitution being the organic law is to be given the purposive interpretation: NAFIU RABIU vs. THE STATE (1981) 2 NCLR 293 at 326, PDP vs. INEC (2001) 1 WRN 1 at 32-33 and DIRECTOR OF SSS vs. AGBAKOBA (2003) 10 WRN 93 at 153-154. It seems lucent that the Constitution establishes the Federation of Nigeria as a Sovereign State with the thirty six States as the component parts of the Federation. So the States being component parts of the Sovereign State of Nigeria are not sovereign. The quaere therefore

is whether Section 249 of the Administration of Criminal Law of Lagos State conferring prosecutorial authority on ‘The State of Lagos’, has by the stipulation made Lagos, one of the thirty six component States of Nigeria, a Sovereign State such that the provisions will be inconsistent with the Constitution? What does it connote when a provision is said to be inconsistent with another? Put differently, what is the meaning of “inconsistent” in this regard?
In NIGERCARE DEVELOPMENT CO. LTD vs. ADAMAWA STATE WATER BOARD (2008) LPELR (1997) 1 at 37, Tobi, JSC (of blessed memory) defined “inconsistent” as follows:
“The word ‘inconsistent’, the verb variant of the noun inconsistency is the opposite of consistent. It means ideas or opinions which are not in agreement with each other or with something else. It also means mutually repugnant or contradictory, contrary, the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other as, in speaking the repeal of a statute which is inconsistent with the Constitution. See

Black’s Law Dictionary Sixth edition, page 766. In the context of Section 1 (3) of the Constitution, it simply means the statute speaking quite a different language from the Constitution.
Equally, in A.G FEDERATION vs. A.G LAGOS STATE (2013) 16 NWLR (PT 1380) 264 at 329, Muhammad, JSC (now CJN) gave the word ‘inconsistency’ the following meaning: “Inconsistency’, in law, to me, can be taken to be a situation where two or more laws, enactments and or rules, are mutually repugnant or contradictory, contrary, the one to the other so that both cannot stand and the acceptance or establishment of the one implies the abrogation or abandonment of the other. It is thus, a situation where the two or more enactments cannot function together simultaneously.” See also GOVT OF PLATEAU STATE vs. NWAOKORIE (2014) LPELR (23368) 1 at 107 -108.
Given the legal meaning of inconsistent, is Section 249 of the Administration of Criminal Justice Law of Lagos State, 2011 speaking a different language from the Constitution as it relates to the sovereignty of Nigeria and Lagos as only one of the component States of the Federation of Nigeria? Can the said stipulation

function simultaneously with the Constitution? What is the scope of the Administration of Criminal Justice Law of Lagos State? It seems to me that the general scope of the said legislation will be an aid in its construction in order to ascertain if the scarified Section 249 is inconsistent with the Constitution. It is the Long Title of a statute that explains the general scope of the statute. In OSAWARU vs. EZEIRUKA (1978) LPELR (2791) 1 at 17, Aniagolu, JSC asseverated:
“In an earlier period, in interpretation of Statutes, titles to statutes were not considered part of the statutes and were on that ground held to be excluded from consideration in construing the statutes… But the modern view, which appears now to be settled law, is that the title of a statute is an important part of the enactment and may be referred to for the purpose of ascertaining its general scope.”
See also BELLO vs. A-G OYO STATE (1986) LPELR (764) 1 at 71 and IDIONG vs. TRADITIONAL RULERS COUNCIL, IKOT ABASI (2013) LPELR (21389) 1 at 8-9. The Long Title of the Administration of Criminal Justice Law of Lagos State, 2011 reads as follows:
“A law on

Criminal Justice Administration in the High Courts and Magistrates Courts of Lagos State and for other connected purposes.”
It is effulgent from this Long Title that the general scope of the law is for the administration of criminal justice in the High Court and Magistrates’ Courts in Lagos State. Given the circumscribed scope of the Administration of Criminal Justice Law of Lagos State 2011, which it must be emphasised, does not purport to create Lagos State, can it really be contended that Section 249 thereof which stipulates that the prosecutorial authority in the administration of criminal justice in Lagos State shall be in the name of The State of Lagos’ has the effect and implication of creating Lagos as a sovereign state, such that it will be inconsistent with the provisions of the Constitution? It would not seem to be so! I do not see how criminal prosecution in Lagos State being conducted in the name of The State of Lagos is not in agreement with the Constitution which provides for Lagos as one of the component States of the Sovereign State of Nigeria. The provision is not mutually repugnant, contradictory or contrary to the Constitution.

(2020) LPELR-50453 (CA), where this Court per Ogbuinya JCA held:
“The kernel of the issue one, though seemingly knotty, is canalised within a narrow compass. It seeks to indict and puncture the juristic personality of the respondent, The State of Lagos, to prosecute the charge against the appellant. It is a subtle invitation to comb the authorities for the purport and features of a juristic entity.
By way of prefatory observations, a juristic person is an entity armed with the capacity to ventilate his/its complaints in judicio. Generally, it is only natural persons, id est, human beings and artificial persons, such as body corporate/corporation, an artificial being which is invisible, intangible and exist only in the contemplation of the law, that are imbued with the capacity to sue and be sued in law Court. The jural units, which the law has cloaked with the garment of legal personality, are: human beings, incorporated companies, corporate sole with perpetual succession, trade unions, partnerships and friendly societies. No action can be commenced by or against any party except a natural person(s) save such a party has been accorded

by a statute, expressly or impliedly, or by common, either a legal personality under the name by which it sues or is sued or right to sue or be sued by that name. Where either of the parties is not a legal person, capable of exercising legal rights and obligations in law, the action is plagued by incompetence and liable to be struck out on account of want of legal personality, see Agbonmagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. (1961) 2 SCNLR 317; Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt.105) 558; Ataguba & Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt. 927) 429; A. G., Anambra State v. A. G., Fed (2007) 12 NWLR (Pt. 1047) 4; Admin./Exec., Estate, Abacha v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; M.M.A. Inc. v N.M.A. (2012) 18 NWLR (Pt. 1333) 506; Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; BB. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Interdrill (Nig) Ltd v. U.B.A. Plc (2017) 13 NWLR (Pt. 1581) 52; Dairo v. Regd. Trustees, T. A. D., Lagos (2018) 1 NWLR (Pt. 1599) 62; Bajehson v. Otiko (2018) 14

NWLR (Pt. 1638) 138; Socio-Political Research Dev. v. Min., FCT (2019) 1 NWLR (Pt. 1653) 313; Moses v. NBA (2019) 8 NWLR (Pt. 1673) 59; Persons, Name Unknown v. Sahris Intl Ltd. (2019) 13 NWLR (Pt. 1689) 203.
Now, the gravamen of the appellants chief grievance is that the respondent is not a creation of statute or the Constitution. The complaint is pegged on the provision of Section 249 of the Administration of Criminal Justice (Repeal and Re-enactment) Law, Cap A3, 2011 (ACJL). Due to its kingly position on the issue, it is imperative to pluck it out, whence it is domiciled in the statute book, ipsissima verba, as follows:
“249. Prosecutorial authority:
Prosecutorial authority shall be exercised in the High Court in the name of The State of Lagos.
This provision is submissive to easy appreciation. To this end, the law mandates ordinary grammatical meaning without any embellishments, see FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361; Nigerian Army v. Aminu Kano (2010) 5 NWLR (Pt. 1188) 429; Agbiti v. Nigerian Navy (2011) 14 NWLR (Pt. 1236) 175; Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344; Amoshima v. State (2011) 14 NWLR (Pt. 1268) 530;

FRN v. Mohammed (2014) 9 NWLR (Pt. 1413) 551; Martins v. COP (2013) 4 NWLR (Pt. 1343) 25; Dahiru v. State (2018) 14 NWLR (Pt. 1640) 567; Komolafe v. FRN (2018) 15 NWLR (Pt. 1643) 507; Babade v. FRN (2019) 1 NWLR (Pt. 1652) 100; Mamuda v. State (2019) 5 NWLR (Pt. 1664) 128. I will use this literal rule as the yardstick for the interpretation of the provision.
It is settled beyond any per adventure of doubt, that one of the critical ways to acquire juridical personality is through statutory acceptance and recognition. A statute bestows a legal personality on a party thus: (a) under the name by which it may sue or be sued or (b) a right to sue or be sued by that name, see Lion of Africa Insurance Co. Ltd. v. Esan (1999) 8 NWLR (Pt. 614) 197; Carlen (Nig.) Ltd. v. University of Jos (1994) 1 NWLR (Pt. 323) 631; Socio-Political Research Dev. v. Min., FCT.(supra). It is axiomatic, that once penal legislation assigns/endows an institution or body with the power to institute criminal proceedings against any person before any Court of law, it gains a juristic personality to prosecute: to commence and carry out legal action; to institute and pursue criminal action

against a person, see Ehindero v. FRN (supra) at 323, per Eko, JSC. Indeed, all agencies charged with prosecutorial powers are qualified to initiate criminal charges in Court see Ezekiel v. A.G., Fed (2017) 12 NWLR (Pt. 1578) 1 at 17, per Nweze, JSC; Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344; Dariye v. FRN (2015) 10 NWLR (Pt. 1467) 325; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 201; Shema v. FRN (2018) 9 NWLR (Pt. 1624) 337; State v. Matthew (2018) 9 NWLR (Pt.1625) 399; Olagunju v. FRN (2018) 10 NWLR (Pt. 1627) 272; Alao v. FRN (2018) 10 NWLR (Pt. 1627) 284; Nweze v. FRN (2019) 10 NWLR (Pt. 1679) 51.
I have, in total obeisance to the expectation of the law, married the provision, sought to be creamed, and the inelastic positions of the law displayed above. The raison detre for the juxtaposition is plain.
It is ascertain if the respondent is obedient to the law of juristic personality or rebellious to it. It is decipherable from the provision of Section 249 of the ACJL, which is in the heat of extermination, that the respondent is a creature of statute, id est, ACJL. In other words, the respondent, as a party, is not an orphan as it traces its

paternity to the provision in that enactment. In order to concretise its birth and destigmatise it of amorphousness, Section 371 of the ACJL, its definition provision, explains State to mean Lagos State. The import of the provision of Section 249 of the ACJL, which is comprehension friendly, is unequivocal and divorced from woolliness. It has stated, in an unmistakable term, that criminal proceedings shall be initiated in the name of the respondent, The State of Lagos. Put simply, the provision has invented the respondent and invested it with the right to sue or be sued, eo nomine, in criminal proceedings in Lagos State. It flows, that the provision has adorned the respondent with the enviable status of a legal persona vis a vis criminal prosecutions in Lagos State. On this score, it will be an affront to the law to label the respondent with badge of a non-juristic entity that is destitute of the capacity to initiate or respond to the criminal matter that parented the appeal. Contrariwise, I am compelled, on the footing of the provision supra, to crown the respondent with the toga of a juristic personality with all the attendant rights and liabilities

appurtenant to it. In effect, I declare the respondent as a juristic entity which is suable or can sue, eo nomine, in the firmament of criminal proceedings in Lagos State.
This brief legal anatomy of juristic personality, with due reverence, exposes the poverty of the learned appellants seemingly salivating argument on the point. In essence, all the strictures, which the learned appellants counsel weaved and unleashed on the issue, in order to derobe the respondent of juristic personality, pale into insignificance. The lower Court did not, in the least, offend the law when it treated the respondent as a juristic entity. As a result, I will not hesitate to resolve issue one against the appellant and in favour of the respondent.”
On the strength of the above cases and on the fact that I have held earlier that the nomenclature, ‘The State of Lagos’ is a juristic personality by virtue of Section 249 of the ACJL and also draw the correlation between the Criminal Law of Lagos State and the ACJL, it is in the light of this that I have no hesitation in resolving issue one in favour of the Respondent.

Having resolved issue one, I will now proceed to resolve issues two which reads thus:
Whether from the totality of the evidence before the lower Court the guilt for the offence of defilement was established beyond reasonable doubt so as to ground the conviction and sentencing of the Appellant.

It is the contention of learned silk that the Respondent was not able to prove its case at the lower Court. That the lower Court convicted and sentenced the Appellant on the uncorroborated testimony of the PW1, the victim of the offence and also that the failure of the lower Court to investigate the real age of the PW1, which is a necessary prerequisite for the conviction of the offence to be sustained, is fatal to the case of the prosecution. Learned senior counsel also queried the judgment of the lower Court that same was in error as there was no medical evidence to support the claim of the PW1.

To attend to all the allegations and counter-allegations contained in this appeal, I am inclined to take a little excursion to some general and trite legal principles which applicability will assist this Court towards deciding this appeal.

The law is trite and of general application that in all

criminal proceedings such as this, the burden of proof rests heavily on the prosecution to prove the guilt of the accused person. This burden rests squarely on the shoulders of the prosecution must be proved beyond reasonable doubt and it does not shift. See Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369. In Esangbedo vs. State (1989) 4 NWLR (Pt. 113) 57, the apex Court held:
“The expression “burden of proof” in criminal cases is often loosely used to include the burden to prove the guilt of an accused person beyond reasonable doubt – a burden which is always on the prosecution and never shifts. This is called the persuasive, ultimate or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt.”
The standard of proof required to discharge the burden is proof beyond reasonable doubt. This does not mean beyond all shadow of doubt or beyond all reasonable doubt, as proof in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, the proof requires that the evidence must be compelling, cogent and credible

against the accused person such that any reasonable person will be convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is what proof beyond reasonable doubt entails. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the apex Court per Peter-Odili, JSC held:
“A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v State (2009) 16 NWLR (pt 1168) 443 per Tobi JSC thus:-
The expression beyond reasonable doubt in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a

prudent man to hesitate before acting in matters of importance to him.
The importance of the phrase beyond reasonable doubt cannot be over emphasized and so a long line of judicial authorities have not let off the opportunity to dwell on it in consonance with the Evidence Act section relating thereto.
It is trite that for the prosecution to establish the offences charged, it must prove beyond reasonable doubt that there was a robbery, with offensive weapons and that the accused was involved in the operation.
The Supreme Court has no difficulty in restating the above principles in the case of Ogudo v State (2011) 18 NWLR (Pt. 1278) 1 and held thus:-
All the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. The above ingredients were not proved in this case. In the case the learned trial judge believed the contents of EXHIBIT 1 and disbelieved the testimony of the appellant on oath wherein he gave his own version of events. It amounts to improper evaluation of evidence for a judge to rely on his belief or

disbelief. The learned trial judge should ask himself the six questions earlier alluded to in this judgment and this includes looking for some independent evidence to corroborate or show that the confession is true. That was not obtained in this case.”
The prosecution in proving beyond reasonable doubt must bear in mind that he will have to prove all the ingredients of the offence in a way that is compelling, cogent and credible which points to the guilt of the accused person. The prosecution does not have to call a host of witnesses as even by a single witness, the prosecution can establish the guilt of an accused provided the evidence is cogent, credible, and compelling. In Osuagwu vs. The State (2013) 5 NWLR (Pt. 1347) 360, the Supreme Court held:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. It is the duty of the prosecution in a criminal case to prove the case beyond reasonable doubt and this entails calling

material witnesses to establish the essential elements of the crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required, a single witness can easily establish a case beyond reasonable doubt. This is a duty that the Respondent should prove at the lower Court by direct evidence, circumstantial evidence and confessional statement.”
For the evidence to amount to proof beyond reasonable doubt, it means that all the ingredients of the offence are proved which leaves no substantial doubt on any of the ingredients that the accused committed the offence he is charged with. The law is settled on the fact that, if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt to have such an effect must be material doubt, that is, doubt that relates to the ingredient of the offence the accused is charged with and not fanciful doubt. See Aikhadueki vs. State (2014) 15 NWLR (Pt. 1431) 530; FRN vs. Abubakar (2019) LPELR-46533 (SC). In Abubakar & Ors vs. Yar’adua & Ors (2008) LPELR-51 (SC), the

Court held:
“Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable man or woman might entertain and it is not fanciful doubt, is not imagined doubt, and is not doubt that the Court might conjure up to avoid performing unpleasant task or duty. See Black’s Law Dictionary, 6th Edition, page 1265. A reasonable doubt is an honest misgiving generated by the insufficiency of the proof, which reason sanctions as a substantial doubt. It is a doubt which makes the Court hesitate as to the correctness of the conclusion which it arrives at. The principle of proof beyond reasonable doubt is necessary because of the Constitutional presumption of the innocence of the accused, provided in Section 36(5) of the Constitution.”
This legal principle is based on the premise that it is better for ten guilty people to go free than for one innocent person to be convicted and also on the established trite legal principle that suspicion no matter how grave is not evidence and cannot be the basis for the conviction of any person in law. Suspicion remains suspicion and

cannot graduate to convincing evidence no matter how grave the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Sopakiriba Igbikis vs. The State (2017) 2-3 S.C (Pt. 1) 78. In Ahmed vs. State (2001) LPELR-262 (SC), the apex Court put it succinctly thus:
“It is now trite that suspicion, however strong, will not amount to proof. In Onyenankeya v. The State (1964) 1 NMLR 34, this Court cited with approval the case of R. v. Oledinma 6 WACA 202 where it was held that: “… to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did, and went further to add: “The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution.” The principle of these two cases applies to the present case. Our criminal justice system loses its essential requirement of proof by evidence beyond

reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.”

It will be necessary at this stage to address the specific issues raised in this appeal and the addresses by counsel in their various briefs. The Appellant was charged for the offence of defilement under Section 137 of the Criminal Law of Lagos State 2011. The ingredients of the offences are stated therein in the law under which the Appellant is charged with and in a line of cases. For the offence of defilement, the Respondent in the lower Court must prove the three ingredients of the offence, these are:
(i) That the accused/Appellant had sexual intercourse with a child;
(ii) That there was penetration into the vault of the vagina;
(iii) The evidence of the child must be corroborated.
In Adonike vs. State (2015) 7 NWLR (Pt. 1458) 237, the apex Court per

Rhodes-Vivour, JSC at page 60-61 stated the above ingredients of the offence of defilement when he held:
“Section 218 supra creates the offence of Defilement of a Girl under the age of 11 years. To succeed the prosecution must prove beyond reasonable doubt: (a) that the accused/appellant had sex with the child who was under the age of 11 years. (b) that there was penetration into the vault of the vagina (c) the evidence of the child must be corroborated. The evidence for defilement is the same as in rape expect that for defilement it is immaterial whether the act was done with or without the consent of the child. This is the well laid down position of the law, that a girl under the age of 11 is a child and so is not capable to consenting to sex. The Court would hold that she did not consent even if she did consent. A child cannot consent to sex, that is the position of the law.”
Similarly, in Nwele vs. State (2019) LPELR-47956 (CA), these same ingredients were reiterated:
“Section 34 of the said Ebonyi State Child Right and other Related Matters Law, 2010 under which the Appellant was charged and tried summarily provides that

for an Appellant to be convicted of the said offence, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt: a. That the appellant had sex with the child under the age of 18 years; b. That there was penetration into the vault of the vagina; and c. That the evidence of the child must be corroborated.”
See also Aje vs. State (2019) LPELR-46828 (CA); Eze vs. State (2019) LPELR-47984 (CA).

Having laid out the ingredients with which the Appellant was charged at the lower Court, I believe it is apposite to start with a determination of all the ingredients of defilement to ascertain if the Respondent has proved its case beyond reasonable doubt. I will proceed with the first which is that the accused/Appellant had sexual intercourse with a child and in doing this, it behooves this Court to determine who a child is and the age of the PW1, the victim of the offence, as at the time of the commission of the offence. This is necessary because the Appellant counsel made a fuss of the age of the PW1 when he argued that the real age of the PW1 was not determined at the lower Court and that there were some inconsistencies in

the testimonies of the prosecution at the lower Court with respect to the age of PW1; which inconsistency ought to have been resolved in favour of the Appellant. Having so said, let me state that it is not every inconsistency or contradiction in the evidence of a party that affects the credibility of the testimonies of the witnesses vide Aiyeola vs. Pedro (2014) LPELR-22915 (SC); Adeyemo Abiodun vs. FRN (2018) 1-2 S.C (Pt. I) 1; Godwin Igabele vs. State (2006) 2 ANLR 221. However, I wish to differ with regards to the position of learned counsel for the Respondent that the age of the PW1 is not material to the determination of the guilt of the Appellant. In actual sense, the age of the PW1 is a prerequisite for the establishment of the offence of defilement against the Appellant. Where this Court finds that the PW1 was not a child at the time of the commission of the offence, then the offence of defilement cannot be sustained against him.

Let me now go on to consider whether the PW1 was a child as at the time of the commission of the offence. I will start by defining who a child is. For the purpose of this judgment, I will refer to the interpretation

Section of the Criminal Law of Lagos State. Under Section 416 of the Criminal Law of Lagos State which is the interpretation section, a child “has the meaning assigned to it in the Child’s Right Law of Lagos State.” The Child’s Right Law of Lagos State, 2015 under Section 262 then proceeded to define child as “a person under the age of eighteen.” Can it therefore be said that from the facts before the lower Court, the PW1 could be said to fall under the category of a child by reason of Section 262 of the Child’s Right Law of Lagos State? This is what this Court will determine at this stage.

In the PW1’s statement at Langbasa Police Station on pages 17-18 of the record of appeal, (Exhibit C) she had informed the police that as at 18/12/2015, she was 14 years (not that she was born on 18th December). Further, in her statement at Zone II Onikan found on pages 19-21 of the record, (Exhibit C2) PW1 had also restated that she is 14 years which is consistent with her earlier statement to the Police at Langbasa. I also bear record of the Appellant statement to Zonal CIID found on pages 27-28 of the record that the

Appellant stated that the PW1 was of age 16. Having mentioned this, let it be recalled that the PW1 had stated that she was born on 4/3/2001 which by calculation, she should be 14 years as at the date of the commission of the offence, that is 4/1/2016. It therefore means that there were two separate ages before the lower Court, that is, 14 and 16 years respectively. The Appellant counsel has argued that the PW1 stated that she was 12 years of age when she started school and from the circumstances of her schooling, it means she was above 18 years as at the time of the commission of the offence. I do not find merit in this argument of counsel as can be gleaned from the record, the PW1 had finished Primary School before she was brought to Lagos and was only 12 years when she was still schooling in Enugu before being brought to Lagos by her uncle. Learned silk also contended that no birth certificate was tendered or a direct evidence given as to the real age of the PW1 and as such, the learned trial Judge admitted the hearsay evidence of the PW1 in determining her age. For this position, I will refer to the decision of this Court in ANPP & Anor vs. PDP & Ors (2006) LPELR-7588 (CA)

where Jega, JCA (of blessed memory) held that sometimes the Court will not take the evidence of the parents as succinct but the Court may put the conflicting evidence on the scale of justice.
As much as the learned senior counsel’s argument is not misplaced as to the ways of proving the age of a person, I do not see myself holding in his favour as it would amount to grave injustice that there was no proof of the age of PW1 at the lower Court in line with the stipulations of the law. From the sum total of the evidence at the lower Court, the learned trial Judge to my mind rightly came to the conclusion that the PW1 was 14 years as at the time of the commission of the offence. This view is supported by the decision of this Court in Onuorah & Anor vs. Onuorah (2018) LPELR-46315 (CA) where this Court per Umar, JCA held:
“The law is settled that in establishing one’s age, the evidence of a person who was present when he was born such as either of the parent, is direct admissible evidence. When that is not possible, his birth certificate with evidence of identification will suffice. But when the above two

mentioned are not possible, then the opinion of an expert who examined the person whose age is under determination is admissible. See the Nigerian case of Modupe Vs. State (1988) 9 SCNJ 1 and also the English cases of R. V Rishworth (1842) 2 QB 476 and R. V Cox (1898) 1 QB 179.
I must point out that none of the three instances highlighted above was met. But then, do I now throw the case away because none of the legally approved ways of determining age was met I say No to that because it will amount to injustice as against doing substantial justice. See Odua Investment Co Ltd Vs Talabi (1997) 10 NWLR (Pt. 523) 1 at 52. Paras E – F where my Lord Ogundare JSC said and I quote Technicalities are a blot upon the administration of the law and the Courts have moved away from allowing them to make an as of it and don’t the image of justice”.
Assuming that I am wrong, which I do not feel that I am, the age of the PW1 as at the time of the commission of the offence can at best be placed between the ages of 14-16 years which by Section 262 of the Child’s Right Law of Lagos State makes the PW1 a child. From the proceedings of the lower Court found on pages

1-12 of the additional record of appeal particularly on page 1, it is obvious that a birth certificate obtained from the National Population Commission was shown to the PW1 to which she confirmed that it was not fake and learned silk was not able to establish at the lower Court that it was fake. The birth certificate which the learned silk alleged to be fake had the presumption of regularity in its favour and therefore if the Appellant is alleging it is fake, the onus is on the Appellant to so prove. See Engr. George Nduul vs. Barr. Benjamin Wayo & Ors ELC (2018) 3038 page 1; Akinbade & Anor vs. Babatunde & Ors (2017) LPELR – 43463 (SC); Akerele vs. Atunrase & Ors (1969)1 ANLR 195; Onyenge & Ors vs. Ebere(2004) 6-7 SC. 52. It is unfortunate that same was not contained in the record of appeal to avail this Court the opportunity of making its necessary deductions from it. I however, believe the trial Judge was in the best position to have made such deductions and findings which to my mind, she rightly did and as such, I cannot overturn such findings. In the light of this I find that the age of the PW1 was rightly established at the lower

Court. There is consistent evidence that the PW1 is a child under the law by all intent and purposes. I cannot see my way clear to deviate from the finding of the lower Court to the effect that the victim of the defilement, that is PW1 is a child under the law as it is not perverse and in the circumstance I cannot interfere with the finding of fact of the lower Court in this respect. See State vs. Shonto (2019) LPELR-47431 (SC); Alioke vs. Oye & Ors (2018) LPELR-45153 (SC).

Having resolved the age of the PW1 as at the commission of the offence, I will now go on to consider whether the PW1 was defiled and by whom? This leads me to the second ingredient of the offence of defilement. Due to the fact that the second and third ingredient cuts across each other, it is necessary I splice them to avoid repetition.

From the testimony of PW1 (the victim of the offence), PW2 (a doctor from Mirabel Centre), PW3 (PW1’s Uncle), PW4 (the IPO from Langbasa) and PW5 (the IPO from Zone 2) all testified to the fact that the PW1 was defiled. It is the testimony of the PW3 that on being told what happened to PW1, he took PW1 to the Langbasa Police Station where

they made a complaint and their statements were recorded. In the light of the report, PW3 stated that they proceeded to Badore Primary Health Centre and got a medical report from there. This report is found on pages 33-36 of the record bearing evidence that the PW1’s allegation was true. The PW1 was also examined at Mirabel Centre by one Dr. Olaniyi who issued a report which is materially the same with that earlier report issued by Badore Primary Health Centre. This report is found on pages 37-39 of the record.

With respect to the contention of learned senior counsel that the evidence of the PW4 and PW5 were hearsay by the very fact that they did not carry out investigation but rather relied on the statement of PW1, I make bold to say that this argument is misplaced. Having taken statements from the PW1, PW3 and the wife of PW3, the PW4 issued a Case Request for Medical Treatment/Report found on page 33 of the record to ascertain if the statement of PW1 was true as she claimed. The PW4 also invited the Appellant to the Police Station to come and give his own account of what happened, but he refused to honour the invitation but rather wrote a

petition to the AIG Zone 2, Command Headquarters, Onikan, Lagos against the PW3 and PW4. All these went contrary to the Appellant counsel’s argument that no police investigation was carried out. All those actions taken by the Police are all investigation. The PW4 & PW5 got the report and went on to investigate what happened before coming to the conclusion that the Appellant is a suspect in the offence alleged against him. If what they did does not amount to investigation I wonder what it is. If the PW4 & PW5 after receiving the complaint did nothing more but went on straight to charge the Appellant then their evidence would have been hearsay. Their conclusion is based on the investigation carried out which include the medical reports. They even visited the scene and recovered the N1,000 the Appellant gave to the PW1. They even engaged the services of a photographer to take pictures which were tendered as Exhibits B-B2. I therefore see no reason to hold that the evidence of PW4 and PW5 were hearsay evidence.

While the Respondent by its evidence has rightly identified the Appellant as the person who committed the offence, the Appellant counsel

on the other hand contends that the Appellant was not rightly identified. Let me say here that against the Appellant learned senior counsel’s assertion that the Appellant was not rightly identified as the one who committed the offence, I find that this is not true. The basis of counsel’s assertion is due to the fact that no identification parade was carried out. I see no need why an identification parade should have been carried out when from the outset, the Appellant was identified as the one who committed the offence. It is settled that identification of an accused can be established by either recognition or identification parade. Recognition arises when a person sees and identifies a person he knows before the commission of the offence. See Onyekwere vs. State (2016) ALL FWLR (Pt. 841) 1415; Rasheed vs. State (2014) LPELR-22456 (CA). When a person does not know the offender before the commission of the offence and the arrest was not done within the scene of the crime, the identity of the offender can be established by identification parade. See Ogu vs. C.O.P. (2018) 8 NWLR (Pt. 1620) 134; Adebayo vs. State (2014) ALL FWLR (Pt. 743) 1994.

From the facts before the lower Court, the PW1 testified that the Appellant had introduced himself as the landlord and that was the reason why she granted him access into the home of PW3. She also identified the Appellant during trial as the one who committed the offence. Aside that, from the evidence before the lower Court, the Appellant was placed at the scene of the crime sometime around the commission of the offence. I have gone extensively through the records of appeal, taking into cognizance the facts and evidence before the lower Court and I do not agree that the fact that no identification parade was conducted is fatal to the case of the Respondent. The PW1 who was the victim of the offence was unarguably the best person to identify the Appellant which she rightly did and as such I cannot hold otherwise. I take shelter under the decision of this Court in Botu vs. State (2014) LPELR-23225 (CA) where it was held:
“The identification evidence of a witness who was either the victim of the armed robbery attack or of a witness who was an eye witness to the armed robbery operation, is that evidence which tends to show that the person charged with that

offence is the same as the person who was seen by the witness, as committing the said offence. See Abudu V. The State (1985) 1 NWLR (Pt. 1) 55; Mbenu v.The State (1988) 3 NWLR (Pt. 84) 615; Ogoala v. The State (1991) 3 SCNJ 61; Uche-Williams v The State (1992) 10 SCNJ….”
It is also of great relevance that the Appellant admitted knowing the PW1 and that he was at the scene of crime at the time referred to. In his evidence he admitted going into the house of PW3 to ask for his rent. He also admitted meeting the two children alone. He went ahead to discuss with them. With all this, is identification parade necessary? The answer is NO. This is because the Appellant was identified by the PW1, the victim who interacted with him for sometime and much more based on the admission of the Appellant of the interaction with the PW1. The positive identification of the Appellant by the PW1 is sufficient as the best form of identification is by the victim of the crime. See Agboola vs. State (2011) LPELR-8948 (CA). The Supreme Court made this point in Akinrinlola vs. State (2016) 16 NWLR (Pt. 1537) 73 where the Court held thus:

“Simply put, identification is the process of showing, proving or recognizing who or what somebody or something is and in relation to a criminal trial, it more often than not, relates to the identification of an accused person or persons who took part in the commission of an offence. An accused person may be identified directly either by the victim of the crime or by witnesses who were at the scene of crime. An accused person can also be identified by circumstantial evidence. For instance, where an accused person is found in possession of items stolen from a shop shortly after the shop was burgled. Moreso a person found running away from a murder scene with blood stained knife or machete may be so linked with the commission of the offence until it is proved otherwise. However, the best form of identification is the prompt one by the victim or people who saw the crime committed. See Adamu v. State (1991) 4 NWLR (Pt. 187) 530.
Now considering the proper mode of identification in matters of this nature, this Court stated clearly in Adamu v. State (supra) as follows:-
“The entire circumstances of a case determine the type of identification necessary. In some cases

when there is more of suspicion rather than some concrete evidence against an accused person, an identification parade may be necessary whereby the accused person is lined up among other persons or even suspects and the victim or witness is asked to identify the culprit. But such method is not necessary if the victim of the crime or a witness thereof promptly identifies the criminal without prodding as has happened in this case.”
See Adamu v. State (1991) LPELR – 73 (SC) at page 9, Paragraphs C-E. See also Okosi v. State (1989) 1 NWLR (pt. 100) 642, 656, Mbenu v. State (1988) 3 NWLR (pt.84) 615, 628.”

The Appellant made an issue of the Respondent not tendering the medical evidence and that PW2 was not competent to testify on the medical report and examination of the PW1 in Mirabel Centre. The evidence as disclosed in the record shows that the medical report was written by Dr Olaniyi who is no more in the service of Mirabel Centre. The medical report was not tendered. The PW2 gave evidence as to the content of the medical report that was not tendered. The Appellant says this evidence is unreliable and that the lower Court should not have

accorded it any regard. From the evidence, while it is true that the medical report was not tendered, the point however is that from the evidence of PW2, he had worked in the hospital for a long time and within the period material to this case he was working in the hospital and indeed he was working with Dr Olaniyi. The evidence he gave was much more of his finding as a result of the examination then and not what he was told or saw in the medical report. His evidence is clear on the fact that the PW1 was sexually assaulted as there was penetration into the vagina of the PW1. Among what could have caused the laceration in the vagina and the breaking of the hymen, is penetration by anything. The evidence of PW2 cannot pin the Appellant to the crime but what the evidence established is that the vagina of the PW1 was penetrated into. That is to say that the vault of the vagina of the PW1 was penetrated into. To establish penetration, the evidence of PW1, PW2, PW4 & PW5 are relevant. PW1 is the victim, PW2 is one of the doctor that examined her some days after the incident, PW4 & PW5 are investigating police officers whose evidence based on their

investigation establish the fact that there was penetration to the vagina of PW1. The question therefore is, does the fact that the medical report was not tendered affect fundamentally the evidence of the PW1, PW2, PW4 & PW5 and consequently the case of the Respondent at the lower Court? Is medical report necessary for all case of this sort? The answer is No. Let us take a little excursion into the case law. First is the Supreme Court’s case of Ameh vs. State (2018) 12 NWLR (Pt. 1632) 99 per Okoro JSC where he stated:
“Also, in respect of non tendering of medical report to show the nature of injuries inflicted on the PW1 by the appellant and his cohorts, I must say that even in murder trial, tendering of medical report is not a sine qua non to the proof of the charge against an accused person. In the instant case, the PW1 gave evidence of the several cuts inflicted on her by the appellant which took her to the hospital where she spent eleven days for treatment. In Exhibit P2, the appellant stated clearly that the PW1 was inflicted with injuries. If I may ask, what was medical report intended to prove in the face of abundant and

uncontroverted evidence before the Court I am in total agreement with the Court below that failure to tender medical report is not cancerous to the conviction and sentence of the appellant by the learned trial judge as affirmed by the Court below. See Onwumere v. The State (1991) 4 NWLR (pt.186) 428, Bille v. The State (2016) LPELR-40832 (SC), Popoola v. The State (2013) LPELR- 20973 (SC), Galadima v. The State (2017) LPELR-41911 (SC).”
This Court expressly answered this question in Bassey vs. State (2008) LPELR-4073 (CA) per Orji-Abadua, JCA held:
“I may, perhaps add that even though the prosecution did not tender any medical report to support the assertions of P.W.1 over the injury he suffered, it is trite law that even, in murder and manslaughter cases, medical evidence is said not to be always essential, let alone proof of ordinary injury.
In the case of Audu V. State (2003) 7 NWLR Part 820 p. 516 and Sowemimo V. State (2004) 11 NWLR Part 885 p. 515, it was held that in the absence of medical evidence, the cause of death can be established by oral evidence showing beyond reasonable doubt that death of the deceased arose from

the act of the accused. So, a person can be convicted of manslaughter even where the medical evidence is discredited, or where there is no medical evidence at all, per Tobi, J.S.C. It follows therefore, that P.W.1, did not need to tender any medical evidence to prove infliction of the injury so long as there was abundant oral evidence before the Court establishing that.”
From the aforementioned, I hold the view that the medical report was not a prerequisite in establishing the offence of defilement. There was evidence before the lower Court that injuries were inflicted on the PW1 and from reports issued from Badore Primary Health Centre and Mirabel Centre contained in the record of appeal, these facts were confirmed. See Popoola vs. State (2013) LPELR-20973 (SC); Lucky vs. State (2016) LPELR-40541 (SC) where in considering rape cases the Court held that tendering of medical report is not mandatory. From the evidence of PW1, PW2, PW4 & PW5, the ingredient of penetration has been established and that there was sexual assault on the PW1.

The above evidence alone cannot secure the conviction of the Appellant at the lower Court. The most

important aspect of the ingredient of the offence is that the Appellant was the person who defiled the PW1. The only direct evidence before the lower Court in this respect is the evidence of the victim PW1. Apart from the 4 years old girl that was with her in the room, there cannot be any other direct or eye witness testimony. No other person saw what happened apart from the victim PW1. The PW1 positively identified the Appellant as the person who defiled her. The evidence of all the others only showed that PW1 was defiled. That is as much as their evidence could go since they were not at the scene of crime. The law states that the evidence of PW1 need to be corroborated and this corroboration can come by way of other evidence outside that of PW1 which connects the Appellant to the offence. These evidences could be by direct evidence, confessional statement or circumstantial evidence. These are any of the ways by which the liability of a defendant can be established in a criminal case. See Musa vs. State (2019) LPELR-46350 (SC); Orode vs. State (2018) LPELR-43788 (CA); Adeyemo vs. State (2015) LPELR-24688 (SC); Bille vs. State (2016) LPELR-40832 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whichever way the evidence must be cogent, compelling and convincing enough to pin the Appellant to the offence. It has been stated above that suspicion no matter how strong cannot be enough evidence to convict a person. The question is what evidence will amount or qualify as corroborative evidence. In answer to this question, I will refer to the Supreme Court case of Ogugu & Ors vs. State (1994) 9 NWLR (Pt. 366) 1, where Bello, JSC (as he then was) held:
“Corroborative evidence was defined in Omisade & Ors. vs. 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.”
Corroborative evidence has been defined to be evidence which is supplementary to that already given and tending to strengthen or confirm it. It is additional evidence of a

different character to the same point. See Stephen vs. State (2013) 2-3 S.C. (Pt. 11) 113.

The lower Court had actually held that the evidence of PW2 corroborates the evidence of PW1. The Appellant’s counsel challenged the evidence of PW2 on two main grounds. The first is that he was not the person who wrote the medical report and secondly that PW1 was brought to the hospital about 8 days later. I have dealt with the first point above to the effect that since the PW2 was among the medical team that examined PW1, he was competent to give evidence as to their findings on the PW1 after examination. The second point is whether it really made much of a difference that the PW1 was not examined by PW2 immediately the incident happened. I do not think it did as the evidence of PW2 on examination showed that there was penetration of the vagina of the PW1. This finding corresponds with the evidence of PW4 who had earlier sent the PW1 to a hospital which report though not tendered the PW4 believed to the effect that the PW1 was defiled. This can add up to show that the PW1 was defiled on the 4th of January 2016. All these in my opinion add up to corroborate

the evidence of PW1. If that is not enough, there is admission by the Appellant that he was at the house of PW3 where he saw PW1 and the other little girl where he introduced himself as the landlord of the PW3. There is evidence that he entered the house, scattered things in the house and gave the PW1 N1,000. The Appellant by his evidence was at the scene of the crime at the time. There is enough evidence as held by the lower Court that corroborate circumstantially the evidence of PW1 that she was defiled by the Appellant. From all the evidence at the lower Court, the testimony of the PW1 cannot be said not to have been corroborated as the records show that PW1 was actually defiled by the Appellant. In the circumstance I cannot see my way clear to deviate from the finding of the lower Court. It is safe therefore to conclude that the Respondent was able to prove the offence of defilement against the Appellant.

It is really sad that the Appellant who has a good job and in a class far more than the PW1 and PW3 could engage in such an act that is a societal evil. Self control is a virtue which the Appellant lacked. This attitude should not be condoned in any

way by any Court. The Appellant should pay dearly for such not just immoral act but devilish and satanic act. The PW1 has been made to experience such an act which but for God’s grace will be a scar in her life. The Courts should send a strong worded message discouraging such an act. I must however quickly add a caveat that though this kind of act is frowned at by the society and the Court but in convicting a person, a Court should not be sentimental. I make bold to say the decision of the lower Court and indeed this Court is not based on sentiment.

In the light of the foregoing, I find that this appeal is unmeritorious and same is hereby dismissed. The decision of the lower Court per Hon. Justice A.A. Akintoye (Mrs) of the Lagos Division of the High Court of Lagos State delivered in Charge No. LD/2405c/2016 – State of Lagos vs. Onuoha James on 1/6/2020 is hereby upheld and affirmed.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the comprehensive judgment prepared by my learned brother, Ebiowei Tobi, J.C.A.. and wish to reiterate and adopt what the Court had said in the case of State of Lagos v. Omotayo (2020) LPELR-50101 CA particularly

part of my judgment which, for ease of reference, I copy below-
“l wish to add by way of emphasis that jurisprudentially, the legislature can assign a name or title to anybody or thing and vest it with juristic personality to perform certain functions like the undertaking of criminal prosecution in that name
I think legal personality is a by-product of legal fiction created by legislation or the common law. See Salmond on Jurisprudence (12th Edition) page 306 Revised by P. J. Fitzgerald thus-
“Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases”.
It follows that an enactment can create an indeterminate group of persons or even inanimate objects juristic persons that may sue or be sued eo nomine as prescribed by the enactment. See Fawehinmi v. N.B.A. (No 2) (1989) 2 NWLR (pt.105) 558 at 596 and 649, Solicitor-General Western Nigeria v. Adedoyin and Ors. (1973) 3 U.I.L.R. (pt.1) 143 at 149 – 150, Unipetrol Nigeria Plc v. Edo State Board of Internal Revenue (2006) 8 NWLR (pt. 983) 631, on the latitude and competence of the Legislature to endow legal personality on animate or inanimate entities.

There is the extreme apt case of Mullick v. Mullick (1925) L.R. 52 Ind. App. 245, cited by Salmond in his authoritative book on Jurisprudence (supra) pages 298 – 299, where the Privy Council, sitting on appeal in a case from India, approved/recognized Hindu Law that gave family idols legal personality to sue and be sued eo nomine in respect of spiritual purposes…
Legal personality can thus be conferred by such an enactment on the name so assigned for it to perform prosecutorial powers in the name or title statutorily bestowed on it to sue and be sued…”

JAMILU YAMMAMA TUKUR, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother EBIOWEI TOBI, JCA and I adopt the judgment as mine with nothing further to add.

Appearances:

UCHE V. OBI, SAN, with him, GABRIEL ONAJASON, ESQ. For Appellant(s)

ADETUTU OSHIMUSI, ESQ., (Deputy, Department of Public Prosecution, Lagos State Ministry of Justice) For Respondent(s)

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JAMES v. STATE OF LAGOS (2021)

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