KINGSLEY EZE v. THE STATE (2019)

KINGSLEY EZE v. THE STATE

(2019)LCN/13928(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 3rd day of July, 2019

CA/E/81C/2017

RATIO

CRIMINAL LAW AND PROCEDURE: WHEN A CRIMINAL PROCEEDING IS SAID TO COMMENCE: ARRAIGNMENT

I agree with learned counsel to the Appellant that a criminal proceeding is said to have been validly commenced when an accused person is arraigned before a Court, or at least, when an information or a charge has been filed against him in a Court of competent jurisdiction and his plea taken. This is also the position of the Apex Court in the case of AUDU v. AG FEDERATION & ANOR (2012) LPELR-15527(SC). PER ABUBAKAR SADIQ UMAR, J.C.A.

CRIMINAL LAW AND PROCEDURE: PRESUMPTION OF INNOCENCE: MEANING OF INNOCENT UNTIL PROVEN GUILTY

The law is long settled that in a criminal trial, the prosecution is duty bound to prove his case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)  which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See DANBABA V. THE STATE (2018) 11 NWLR PART 1631 AT PAGE 444 ? 445; IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO vs. THE STATE (1989) 4 NWLR (Pt. 113) 57. PER ABUBAKAR SADIQ UMAR, J.C.A.

CRIMINAL LAW AND PROCEDURE: DEFILEMENT: THE ESSENTIAL INGREDIENTS OF DEFILEMENT AND COMPARISON WITH RAPE

It has been established in a long chain of judicial authorities that to secure a conviction for the offence of defilement, the prosecution is duty bound to prove the following ingredients 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.
See ADONIKE V STATE (2015) LPELR-24281(SC)

It is also important to state the evidence for defilement is the same as in rape except that for defilement, it is immaterial whether the act was done with or without consent of the child. The law is trite that a girl under the age of 11 is a child and so is incapable of consenting to sex. PER ABUBAKAR SADIQ UMAR, J.C.A.

COURT: DUTY OF COURT: DUTY OF THE  COURT WHEN EVIDENCE IS UNCHALLENGED AND UNCONTROVERTED

The law is trite that where a piece of evidence is unchallenged and uncontroverted, the trial Court has a duty to evaluate it and be satisfied that it is credible and sufficient to sustain the claim. See the case of ADEKANBI v. OSENI & ANOR (2017) LPELR-42370 (CA).
PER ABUBAKAR SADIQ UMAR, J.C.A.

CRIMINAL LAW AND PROCEDURE: BURDEN OF PROOF IN CRIMINAL CASES ON THE PART OF THE PROSECUTION

The law is trite that the prosecution is bound to prove the essential elements of an offence beyond reasonable doubt and that any doubt in the case of the prosecution would entitle the accused person to an order of discharge and acquittal. However, it is also the law that despite the daunting burden placed on the prosecution, the prosecution is not expected to prove the guilt of the accused person beyond every reasonable shadow of doubt. See ALO v. STATE (2010) LPELR-3751(CA). PER ABUBAKAR SADIQ UMAR, J.C.A.

APPEAL: WHEN THE APPELLATE COURT IS UNDER AN OBLIGATION TO SET ASIDE THE FINDINGS OF A TRIAL COURT

It is trite that setting aside findings of a trial Court is a very serious Appellate function which an Appellate Court cannot exercise for fun of it, but rather for valid legal reason or reasons. An Appellate Court cannot fault the findings of fact of a trial Court when the Appellate Court does find or see any fault. See IDEOZU V. OCHOMA (2006) 20 WRN 145 (2006) 4 NWLR (PT. 970) 364, (2006) ALL FWLR (PT. 308) 1183, particularly at 1209 paragraphs A – B. PER ABUBAKAR SADIQ UMAR, J.C.A.

Before Their Lordships

MONICA BOLNA’AN DONGBAN-MENSEM            Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE                Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR                                       Justice of The Court of Appeal of Nigeria

Between

KINGSLEY EZE Appellant(s)

AND

THE STATE Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of High Court of Ebonyi State, Abakaliki Judicial Division, delivered by D.O. OKOH J. on the 22nd December, 2014 wherein the Appellant/Cross Respondent was arraigned on a two count charge of defilement contrary to Section 218 of the Criminal Code Law cap 33 Vol. 1, Laws of Ebonyi State of Nigeria 2009 and indecent assault punishable under Section 222 of the Criminal Code law Criminal Code Law cap 33 Vol. 1, Laws of Ebonyi State of Nigeria 2009.

BRIEF FACTS OF THE CASE
?The brief facts that culminated into the filing of the instant appeal as gleaned from the record are that the Appellant on the 17th day of May, 2012 walked into the compound of Mrs. Ifeyinwa Egbe, PW2 at the Court below when neither PW2 nor any adult was at home. The Appellant was said to have met PW2?s children the oldest of whom was Chiemerie Amaka (PW1). Appellant requested for a cup of water from the said PW1 and the Appellant?s request was granted. The Appellant was said to have asked PW1 to show him the stone on which her parents sharpened machetes within the compound and all of a sudden, the Appellant was said to have suddenly seized PW1, gagged her mouth, whisked her into a bush behind PW1?s compound, stripped her of her clothing and had unlawful canal knowledge of her.

The Respondent/Cross Appellant at the Court below called four witnesses who testified as PW1 ? PW4 while the Appellant/Cross Respondent testified in his defence without calling any other witness (es). At the conclusion of trial, the Court below in its judgment discharged the Appellant/Cross Respondent for the offence of indecent assault but convicted him for the offence of defilement and sentenced him to five years imprisonment, without an option of fine.

Dissatisfied with the decision of the Court below, the Appellant/Cross Respondent appealed to this Honourable Court vide an undated Notice of Appeal filed on the 21st day of January, 2015. The Notice of appeal contains six grounds of appeal to wit:
GROUND ONE
The learned trial judge erred in law and facts when he held as follows:
?The testimonies of PW1, PW3 and Exhibits ?P1? and ?P2? create no doubt that PW1 having being (sic) an under aged child was a victim of unlawful sexual intercourse.?

GROUND TWO
The learned trial judge erred in law and facts when he held as follows:
Following from the above, I am of the view that the identity of the accused right from the time of the commission of the alleged offence had never been in doubt such as to make the identification of the accused an issue in this case.?

GROUND THREE
The learned trial judge erred in law when he held that:
Exhibits P1 and P2, the referral from the Chima Maternity & Hospital and the medical report respectively, corroborate the evidence of PW1?

GROUND FOUR
The learned trial judge erred in law and facts when he held that:
Accused persons denial of his extra-judicial statement in the face of other evidence and circumstances tendering to show that the confession/admission of guilt by the accused is true does not render the statement inadmissible in the circumstances of this case and I so hold.?

GROUND FIVE
The learned trial judge erred in law when he held that:
I therefore hold that accused having being arraigned in Court on a charge five days after the commission of the alleged offence satisfied the statutory requirement that prosecution in a charge of defilement has to commence within two months of the alleged commission of the offence.?

GROUND SIX
The judgment of the lower Court is unreasonable and cannot be supported having regard to the weight of evidence.

Also dissatisfied with a part of the decision of the Court below, the Respondent/Cross Appellant cross appealed vide a Cross Respondent Notice dated the 6th day of November, 2018 and filed on the 13th day of November, 2018. The Cross/Respondent Notice contains a sole ground of appeal to wit:

GROUND ONE
ERROR IN LAW
The learned trial judge erred in law when he held in this case as follows:
?It would be recalled that the prosecution, apart from defilement also charged the accused for indecent assault as a second count under Section 222 of the Criminal Code (supra). No evidence was led in this matter in proof of the said count of the charge. Accused person therefore is hereby discharged on the second count of the charge on indecent assault.?

In line with the Rules of this Honourable Court, parties filed and exchanged their respective Briefs. The Appellant/Cross Respondent brief to the main appeal is dated the 8th day of June, 2018 and filed on the 10th day of August, 2018. The said brief was deemed properly filed and served by an Order of this Honourable Court made on the 29th day of October, 2018. The Respondent/Cross Appellant filed a single brief in respect of the main appeal and its cross appeal. The Respondent/Cross Appellant?s brief is dated the 6th day of November, 2018 and filed on the 13th day of November, 2018. The Appellant/Cross Respondent?s Brief to the Cross Appeal undated was filed on the 27th day of November, 2018.

The Appellant/Cross Respondent?s Briefs were settled by G.B. OBI ESQ. while the Respondent/Cross Appellant Brief was settled by I.I ALOBU ESQ.

?It is important to point out that this stage that in the main appeal, the Appellant/Cross Respondent appealed against his conviction on count one of the charge i.e. the offence of defilement while the Respondent/Cross Appellant appealed against the discharge and acquittal of the Appellant/Cross Respondent on the second charge i.e. indecent assault.

In the main appeal, learned counsel to the Appellant distilled two issues for the determination of this appeal to wit:
i. ?Whether the decision of the High Court that the Charge commenced within the statutory limitation period and therefore had jurisdiction to entertain the charge is right. (Ground 5).
ii. Whether the testimonies of PW1, PW3 and Exhibits P1 and P2 corroborate each other and constitute legally admissible evidence to prove the guilt of the Appellant beyond reasonable doubt. (Grounds 1, 3, 4, and 6)?

The Respondent/Cross Appellant counsel on the other hand submitted two issues for the determination of the main appeal and the cross appeal to wit:
i. ?Whether the trial Court was right when it decided that the prosecution, on count 1 of the charge, was commenced within the statutory limitation period, and therefore had jurisdiction to entertain the charge.
ii. Whether the prosecution successfully proved the offence of indecent assault in count II of the information against the Appellant/Cross Respondent, and whether the learned trial judge was right when it held that the prosecution led no evidence in proof of it.?

Counsel to the Appellant/Cross Respondent in his Cross Respondent Brief distilled a sole issue for the determination of the cross appeal to wit:
i. ?Whether the finding of the High Court that the prosecution from the evidence on record failed to prove the charge of Indecent Assault in Count Two of the Charge is correct.

ARGUMENTS AND SUBMISSIONS IN THE MAIN APPEAL
On whether the Court below was right to have resumed jurisdiction on the charge of defilement haven not been commenced within the statutory limitation period, the learned counsel to the Appellant submitted that it is not in issue that the Appellant committed the alleged offence of defilement and indecent assault on the 17th May, 2012 and that the Appellant was