KINGSLEY v. STATE OF LAGOS
(2022)LCN/17007(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Monday, May 30, 2022
CA/LAG/CR/456/2020
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
INYANG KINGSLEY APPELANT(S)
And
THE STATE OF LAGOS RESPONDENT(S)
RATIO
THE POSITION OF LAW ON CORROBORATIVE EVIDENCE
Corroborative evidence must be independent, citing Joshua v State (2019) LPELR-47358 (CA) at page 12; R v Whitehead (1929) 1 KB LT 481. Where there is no corroboration, a Judge ought to exercise caution in convicting on such unreliable evidence. Reliance was placed on Iko v State (2001) 14 NWLR (PT 732) 221 at 259. That the doubts that plagued the evidence of PW2 ought to have been resolved in favour of the Appellant, relying on Al-Hassani v. State (2011) 3 NWLR (PT 1234) 254 at 279. The guilt of an accused must be proved to support a conviction, no matter the wickedness of the heinous offence. There is no place for suspicion, speculation and sentiment in law as an erroneous conviction is equally heinous, citing Zubairu v State (supra) at page 528. PER OTISI, J.CA.
WHETHER OR NOT AN APPEALLATE CURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
An appellate Court will not ordinarily disturb the findings of a trial Court unless the findings are perverse, not supported by credible evidence, and have occasioned a miscarriage of justice. But in the instant case, it was submitted that all evidence led by the Respondent were credible and substantial in the circumstances of this case, citing Michael Omisade V. State (1976) 11 SC 75; The State v Shonto (2019) LPELR-47431 (SC). PER OTISI, J.CA.
WHETHER OR NOT CONTRADICTIONS IN THE EVIDENCE OF WITNESSES FOR THE PROSECUTION CAN AFFECT CONVICTION
It is well settled that for contradictions in evidence of witnesses for the prosecution to affect conviction, they must be material to the fact or issue to be decided in a case and so substantial in the determination of the issue or case as to create doubt on the guilt of the accused person; Adenekan v. The State of Lagos (supra). The contradictions must be of such magnitude and relevance to the charge that to ignore them would cause a miscarriage of justice. Minor discrepancies in the evidence of the prosecution witnesses are not sufficient, without more, to entitle the Appellant to an acquittal; Iko v State (supra); Shurumo v. The State (2010) LPELR-3069(SC); Habibu Musa v State (2013) LPELR-19932(SC); Ogunbayo v. State (2007) LPELR-2323(SC); James v. The State of Lagos (supra). PER OTISI, J.CA.
WHETHER OR NOT HEARSAY EVIDNECE IS ADMISSIBLE
Hearsay evidence is not admissible except as provided in the Act or other statutory provisions; Section 38 of the Evidence Act, 2011. Exceptions to this general rule are provided under Section 39 of the Act. Clarifying what constitutes hearsay evidence, the Supreme Court, per Rhodes-Vivour, JSC in FRN v Usman (2012) LPELR-7818(SC) at pages 19 – 20, said:
“The question to be answered is what constitutes hearsay evidence. A witness is expected to testify in Court on oath on what he knows personally. If the witness testifies on what he heard some other person say, his evidence is hearsay. Such evidence is to inform the Court of what he heard the other person say e.g. in cases of slander. If on the other hand his testimony is to establish the truth of an event in question or as in this case to establish the truth of contents of the appellant’s statements, it is hearsay and inadmissible evidence.
Hearsay evidence is secondary evidence of an oral statement best described as second-hand evidence. What a witness says he heard from another person is unreliable for many reasons.” (Emphasis mine).
The hearsay rule is to protect an accused person from being convicted upon the testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony; Simeon v State (2018) LPELR-44388(SC). See also: Popoola v The State (2018) LPELR-43853(SC); Itodo v The State (2019) LPELR-49069(SC); Sama’ila v. The State (2021) LPELR-53084(SC); Okeremute v. State (2021) LPELR-55335(SC). I also find instructive the decision in Zubairu v. The State (2015) LPELR-40835(SC), per Ngwuta, JSC, at page 16, that:
“Evidence of PW1 of what happened to the deceased in the house of the 4th accused in the evening of 7th April, 2002 does not derive its veracity solely from the credit given to the PW1 herself but rests wholly on the veracity and competence of her daughter who is the source of her information. That part of her evidence is hearsay and inadmissible as its object is to establish the truth of what is contained in the statement made to her by her daughter concerning the event that took place in the evening of 7th April, 2002 in the house of the 4th accused. See Zaki v. Magayaki (2002) FWLR (Pt.135) 795 ratio 10.” PER OTISI, J.CA.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the High Court of Lagos State Coram S. S. Ogunsanya, J., on a one count-charge of defilement of a child contrary to Section 137 of the Criminal Law of Lagos State, 2015. The Appellant was further arraigned on an amended one-count charge of defilement under the same Section of the Law, to which he pleaded not guilty.
The prosecution alleged that the Appellant forcefully had sexual intercourse with the prosecutrix sometime in 2015 when the prosecutrix was 12 years old. At the hearing, the prosecution called four witnesses and tendered three exhibits. The Appellant testified for himself, and called 3 other witnesses. At the end of the trial, the learned trial Judge, on 11/6/2018, convicted the Appellant, and sentenced him to life imprisonment. Aggrieved by his conviction and sentence, the Appellant lodged this appeal by Notice of Appeal, dated 7/9/2018, on ten grounds of appeal, pages 187–197 of the Record of Appeal.
The parties filed Briefs of Argument in line with the Rules. The Appellant’s Brief was filed on 2/11/2020, but deemed properly filed and served on 6/3/2021. The Respondent’s Brief was filed on 8/7/2021 but deemed properly filed and served on 27/4/2022. The Appellant’s Reply Brief was filed on 25/4/2022 but deemed properly filed and served on 27/4/2022. At the hearing of this appeal on 27/4/2022, the respective Briefs were adopted by C.O.P. Emeka, SAN, who appeared with Oluwakemi Oni, Esq., and Jennifer Dipnap, Esq., for the Appellant, and by Y.A. Sule, Esq., Assistant Chief State Counsel, Ministry of Justice, Lagos State, for the Respondent.
From the ten grounds of appeal, the Appellant distilled a sole Issue for determination of this appeal, as follows:
Whether the Appellant’s conviction and sentence to life imprisonment for child defilement are not perverse, when the Prosecution failed to prove the charge against the Appellant beyond reasonable doubt.
For the Respondent, two issues were formulated thus:
1. Whether the Learned trial Judge was right in convicting the Appellant taking into consideration the oral testimonies of the Respondent’s witnesses and Exhibit P1?
2. Having regard to the circumstance of the case, whether the circumstantial evidence was not credible, cogent and unequivocal pointing to the guilt of the Appellant in proof of the offence of defilement beyond reasonable doubt?
The issues seek the Court’s determination of whether the case against the Appellant was proved beyond reasonable doubt. I shall adopt the sole issue as framed by the Appellant, and consider alongside the arguments of the Respondent.
Arguments of Counsel
Senior Counsel for the Appellant contended that there was no credible evidence at the trial to establish beyond reasonable doubt that it was the Appellant that defiled the prosecutrix, who testified as PW2. As required in criminal proceedings, the prosecution must prove all the essential ingredients of the offence to sustain a conviction, citing Adonike v The State (2015) 7 NWLR (PT 1458) 237 at 263.
The Appellant was charged with the offence of defilement of a child under Section 137 of the Criminal Law of Lagos State. Relying on Adonike v The State (supra), in a charge of defilement of a child, the prosecution has the burden to prove three essential ingredients:
(a) That the victim is a child
(b) That there was sexual intercourse i.e. penetration by the defendant.
(c) That the evidence of the child was corroborated
There was evidence from PW1, PW2, PW3 and PW4 that the victim was a child within the meaning of Section 261 of the Child Rights’ Law of Lagos State. She was under the age of 18 years as at 2015. The first ingredient was therefore proved.
It was argued, however, that the key element of the charge, which is, whether the Appellant and no other person committed the offence, was not established beyond reasonable doubt. The prosecution called four witnesses. The Appellant reviewed the evidence of the prosecution witnesses and submitted that the element of the offence, that the Appellant and no other person committed the offence, was not proved. That the evidence of PW1, the father of the prosecutrix, was a rehash of his daughter’s version, and being hearsay, was incapable of independently establishing the truth of the charge against the Appellant. Reliance was placed on Subramanian v Public Prosecutor (1956) 1 WLR 956 at 969; Odogwu v State (2013) 14 NWLR (PT 1373) 74 at 103-104. It was argued that the evidence of PW3, the Investigating Police Officer (IPO), also amounted to hearsay. PW4, a medical practitioner, did not prepare or sign the medical report of Mirabel Centre, Exhibit P1. He did not take part in the examination of the prosecutrix, PW2. The evidence he gave about PW2 was what he read in the report.
The Appellant submitted that it was unsafe to rely on the evidence of PW1, PW3 and PW4. None of them had an independent experience of what transpired when the prosecutrix visited the Appellant on the day in question. Reliance was placed on Section 126 Evidence Act, 2011. That their testimony lacked the credibility to establish that the Appellant defiled PW2 as they merely recounted facts which they heard or read from other sources.
The only direct evidence against the Appellant was that of PW2, who incidentally was a child. While it was conceded that PW2 may have had a penetration, if the content of Exhibit P1 was accepted as credible, the question was whether the evidence of PW2 would satisfy the legal requirement to be the basis for the conclusion that it was the Appellant who penetrated her. It was posited that an analysis of PW2’s evidence would show that it is unsafe to rely on it as the lower Court did, to conclude that it was the Appellant who penetrated her. Senior Counsel for the Appellant called the attention of the Court to portions of the evidence of PW2, including her extra-judicial statement, Exhibit D2, which contradicted her evidence under cross-examination. It was argued that the contradiction was material to the entire case.
One of the main points of divergence between the case of the prosecution and that of the defence was whether the Appellant had a time alone with PW2. It was the Appellant’s defence that he did not have any private time with PW2 on the day of the alleged defilement. That the finding that the Appellant defiled PW2 would have some foundation if he ever had a time alone with her. PW2 stated in her statement that she visited the Appellant’s home with her brother and the Appellant sent her brother outside and made love to her. In her testimony in Court, she was vehement that she visited the Appellant’s house alone. It was argued that the learned trial Judge ought to have taken PW2’s narrative with caution. It was a material contradiction in the Prosecution’s case that ought not to have been treated with levity and the Appellant convicted on the evidence of PW2, without any independent evidence corroborating same, as required by law.
The uncontroverted evidence of DW1, DW2, DW3 and DW4 was that the Appellant together with his roommate and friends were in the room when PW2 came to invite the Appellant for house fellowship. While conceding the morally despicable nature of a sexual offence, particularly child defilement, it was submitted that a Court should also be mindful of the effect of an erroneous conviction swayed by understandable societal reprehension for the offence. An accused person is not meant to prove his innocence. The prosecution is to establish his guilt beyond reasonable doubt, relying on Section 135 (1) Evidence Act; Olaiya v State (2015) 11 NWLR (PT 1470) 360 at 371.
The Appellant called further attention to contradictions between Exhibit D2, PW2’s statement to the Police, and her evidence under cross-examination. The evidence of PW2 was also shown to be unreliable when she testified as to how her father got knowledge of the incident. Different versions of her account of the incident made her testimony unreliable and raised serious concern as to the truthfulness of PW2
It was submitted that, from the totality of PW2’s evidence, it can be concluded that PW2 was untruthful and her evidence is so unreliable that the lower Court ought not to have relied on same. An untruthful witness ought not be accorded any credibility, citing Ayeni v People of Lagos State (2016) LPELR–41440 (CA) at 57. The prosecution failed to establish by cogent and compelling evidence that the Appellant and no one else committed the alleged offence. There was no proof that the Appellant penetrated or ever attempted to have sexual intercourse with PW2 which was the most crucial element, citing Jegede v State [2001] 14 NWLR (PT 733) 264 at 274–275.
The Appellant, at the earliest opportunity, stated that he was with his girlfriend, his roommate and two other persons when PW2 came to invite them for a fellowship. The facts constituting the offence revolved around the fellowship and the fellowship time. Yet, PW3, the IPO, failed to properly investigate the surrounding facts or question the persons who were mentioned. PW4 had testified that the forceful penetration could have been a penis, carrot, banana, or a stick. It was argued that without credible evidence that it was the Appellant that penetrated the victim, the medical report of vaginal bruises was insufficient to rely on to convict the Appellant of defilement of the victim.
The learned trial Judge found the testimony of PW2 to be sufficiently corroborated by PW3 and PW1. The Appellant however submitted that the evidence of PW2, a child, was not corroborated, relying on Aje v State (2019) LPELR-46828 (CA) at 27–28. The offence of defilement could not have been proved against the Appellant when there was no corroboration for the evidence of PW2 that the Appellant was the person who had sexual contact with her.
PW1 testified that all he knew about the case was as relayed to him by her daughter. His evidence was hearsay and inadmissible, Zubairu v State (2015) 16 NWLR (PT 1486) 504 at 524-525. PW3 also admitted that all she knew about the case was as relayed by PW1 and PW2. She did not interrogate, see or hear from anyone at the crime scene or elsewhere. The evidence of an IPO is admissible if it is what he saw, or observed and actually did during investigation. Otherwise, it is hearsay evidence, citing Musa v State (2018) LPELR-46037 (CA) at 16 -18. That there was therefore no admissible evidence to corroborate PW2’s unreliable evidence.
Corroborative evidence must be independent, citing Joshua v State (2019) LPELR-47358 (CA) at page 12; R v Whitehead (1929) 1 KB LT 481. Where there is no corroboration, a Judge ought to exercise caution in convicting on such unreliable evidence. Reliance was placed on Iko v State (2001) 14 NWLR (PT 732) 221 at 259. That the doubts that plagued the evidence of PW2 ought to have been resolved in favour of the Appellant, relying on Al-Hassani v. State (2011) 3 NWLR (PT 1234) 254 at 279. The guilt of an accused must be proved to support a conviction, no matter the wickedness of the heinous offence. There is no place for suspicion, speculation and sentiment in law as an erroneous conviction is equally heinous, citing Zubairu v State (supra) at page 528.
In urging the Court to refrain from affirming the conviction of the Appellant when the prosecution had failed to establish that the Appellant was indeed the person who committed the offence, it was posited that it is a timeless judicial policy that it is better to allow ninety-nine guilty persons to go free rather than punish one innocent person, citing Shehu v State (2010) 8 NWLR (PT 1195) 112 at 135-136; Nwosu v State (1986) 4 NWLR (PT 35) 384 at 360.
The Court was urged to resolve the sole issue in favour of the Appellant, and to set aside the Appellant’s conviction and sentence, which maximum punishment had been found to be excessive by this Court in Benjamin v. State (2016) LPELR-42041(CA) at 14.
The Respondent, in reply, conceded that in all criminal trials the burden of proof is always on the prosecution to establish the guilt of a defendant beyond reasonable doubt, citing Ayinde v State (2019) LPELR-47835 (SC). Relying on Saminu v State (2019) LPELR-47622 (SC), it was submitted that the guilt of a defendant may be established in any of the following ways;
A. Confessional statement of the defendant
B. Direct eye witness account of a witness or witnesses
C. Circumstantial evidence
The prosecution called PW2, the victim of the crime, who gave vivid description of events on the day of incident, without being shaken under cross-examination. It was argued that the evidence of PW1 and PW3 was not hearsay. The evidence of an IPO is not hearsay evidence but direct evidence. The duty of an IPO is to investigate crime. He obtains statements from accused persons and witnesses alike, and thereafter testifies, giving the synopsis of what he did during investigation. Reliance was placed on Lekan Olaoye v. The State (2018) LPELR -43601 (SC); Ubong Obot v. The State (2014) LPELR-23130 (CA); Osho v. State (2011) LPELR-4804(CA).
It was further submitted that the contention that the evidence of PW4 was documentary hearsay as PW4 was not the maker of the medical report, Exhibit P1, and as such the trial Court erred in law to have accorded probative value to such evidence was erroneous. PW4 testified that he was a member of the team of doctors that work at the Mirabel Centre. PW4 confirmed the authenticity of Exhibit P1 and gave account on the medical examination process of PW2 to conclude that the PW2 was sexually assaulted and defiled. Evidence of injuries were seen and the process of inflammatory situation was reported. The Court was urged to hold that, by the provisions of Sections 39 and 55 of the Evidence Act, 2011, this peculiar situation fits into an exception to the rule of hearsay evidence, relying on Chima Ejiofor v The State (2001) 4 SC (PT II) 7-8; Olatunji v The State (2016) LPELR-41113(CA).
There was ample evidence by PW2 that the Appellant was well known to her prior to the day of the incident as he was the choir leader of their fellowship in the Church that she attended and that she was sent to call him. PW2 also narrated how the Appellant penetrated her and threatened her not to tell anyone. The Court was urged to hold that PW2 was a credible eye-witness, and that her testimony was cogent, compelling and credible.
It was not in dispute that as at the time the offence of defilement was committed, PW2 was less than 14 years of age. PW2 gave evidence before the trial Court when she was above the age of 14 years. Her testimony did not require corroboration, citing Section 209(2) Evidence Act, 2011. The Court was urged to hold that this piece of evidence was sufficient for the trial Court to hold that PW2 was a child as at the time of the commission of the offence by the Appellant. It was further submitted, assuming without conceding that PW2 was under the age 14 years, though in offences of sexual nature it is desirable that the evidence of the prosecutrix or complainant is buttressed by other pieces of evidence implicating the accused in a substantial way, the Court can still convict an accused on uncorroborated evidence of the complainant, relying on Habibu Musa v. The State (2013) LPELR-19932 (SC). That in the instant case, there were other pieces of evidence that corroborated the testimony of PW2, such as the testimonies of PW1, PW3, PW4 and Exhibit P1, the medical report. Further reliance was placed on Adenekan v The State (2020) LPELR- 50406 (CA).
On the ingredients to be established in proof of the offence of sexual defilement, reliance was placed on the cases of Boniface Adonike v The State (2015) LPELR-24281 (SC); Eze v The State (2019) LPELR- 47984(CA); Edwin Ezigbo v. The State (2012) 16 NWLR (PT. 1326) 318.
The Respondent submitted that the evidence before the lower Court was sufficient to meet the ingredients of the offence. PW2 was consistent and coherent in establishing the fact that she was defiled by the Appellant. She was precise as to the room arrangement of the Appellant and gave details of the incident and event thereafter. Evidence that is not controverted or disputed is relevant and admissible, and the Court is bound to act on it, relying on Adamu v Akukalia (2005) 11 NWLR (PT.936) 263 at 279.
The Appellant conceded that the first ingredient of defilement as stated in the case of Adonike v. The State (supra) was established. It was submitted that the second and third ingredients were also proved through the evidence of PW1, PW2, PW3, PW4 and Exhibit P1. Minor lapses in the evidence of PW1, PW2 and PW3 were not sufficient to justify the interference of this Court in the findings of the trial Court. The discrepancies or contradictions referred to by the Appellant were not material facts that affect the substance of the case and do not occasion a miscarriage of justice; relying on Ebeinwe v. The State (2011) 7 NWLR 402 (incomplete citation); Omisade v. Queen (1964) 1 ALL L.R. 233.
An appellate Court will not ordinarily disturb the findings of a trial Court unless the findings are perverse, not supported by credible evidence, and have occasioned a miscarriage of justice. But in the instant case, it was submitted that all evidence led by the Respondent were credible and substantial in the circumstances of this case, citing Michael Omisade V. State (1976) 11 SC 75; The State v Shonto (2019) LPELR-47431 (SC).
It was further submitted that there is no yardstick by which any circumstantial evidence can be measured before a conviction can be entered against an accused person. Each case depends on its own facts. One test which such evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree to possibility or chance that other persons could have been responsible for the commission of the offence, citing Ebenehi v. The State (2009) ALL FWLR (PT 486) 1825; Ijioffor v The State (2001) 9 NWLR (Pt 718) 371 at 385. Where there are no eye witnesses or direct account of the commission of an offence, a conviction may be based on circumstantial evidence, relying on Igabele v. State (2004) 15 NWLR (Pt 896) 314. Such circumstantial evidence must point to only one conclusion, that the offence was committed by the accused person, citing Dick v. C. O. P. (2009) 9 NWLR (PT 1147) 530, 551.
In the instant case, PW2 was the victim of the crime and she gave a direct account of what transpired between herself and the Appellant thereby linking the Appellant to the commission of the offence. A victim of a crime is an eye witness who can best describe from personal observation, what they saw or what happened to them; citing Ude v The State (2016) 14 NWLR (PT. 1531) 122 at 158. The decisions in Oyakhere v The State (2006) ALL FWLR (PT. 305) 703 at 720; Shurumo v. State (2010) LPELR-3069(SC) were also cited and relied on.
It was submitted that all facts and evidence pointed to no other person than the Appellant. The testimonies of the witnesses called by the Appellant were full of inconsistences which only strengthened the case of the Respondent. The Respondent posited that the testimonies of the Appellant’s witnesses were an afterthought to sway the trial Judge in favour of the Appellant, placing reliance on Stephen v The State (2009) ALL FWLR (PT 491) 962 at 976; Aiguokhian v The State (2004) LPELR-269 (SC).
The duty of the trial Court is to evaluate all the material evidence placed before it and reach just decision on the rights and obligations of the parties. Where the trial Court has properly discharged its primary duty to evaluate the totality of evidence before it and reached a just decision, the appellate Court would not interfere with the decision, citing Gabriel v The State (2010) 6 NWLR (PT 1190) 280. It was argued that in the instant case the trial Court evaluated the totality of evidence before it and demonstrated how same was concluded.
The Court was urged to discountenance the submission of the Appellant that the circumstance of the case does not point to the Appellant as the person that commit the offence of defilement against PW2, relying on the case of Lucky v. The State (2016) LPELR-40541 (SC). The totality of facts and circumstances of the case presented by the Respondent proved that the Appellant was the one that defiled PW2. The Court was urged to hold that the Respondent proved its case beyond reasonable doubt. The Court was further urged to dismiss the appeal and affirm the conviction and sentence of the Appellant.
In the Reply Brief, the Appellant submitted that the law is that to establish child defilement, the evidence of the child victim must be corroborated. What calls to question in this regard is the age of the victim at the time of the incident and not at the time of her testimony. The need is to corroborate what the child’s mind perceived when the defilement allegedly occurred, citing James v State of Lagos (2021) LPELR-52456 (CA) at 56. Section 209 of the Evidence Act, 2011 was not applicable. That the case of Adenekan v The State (2020) LPELR-50406 (CA) which the Respondent relied upon was inapplicable. The offence in this case is child defilement and to prove the ingredients of the offence, the law mandatorily requires corroboration for the evidence of the child victim, citing Adonike v State (supra).
On the contention that the evidence of the IPO, PW3, did not amount to hearsay, it was submitted that, while this represents the general rule applicable to cases where the IPO gives evidence of what he saw, observed, or actually did during the course of investigation, it is not applicable in the instant case where the IPO admitted that the primary sources of her testimony are statements of PW1 and PW2 without more. PW3 ought to give evidence as to how her investigation showed that the Appellant committed the offence. However, she merely rehashed what PW1 and PW2 relayed to her. So long as the aim of her evidence was to establish the Appellant’s guilt, her evidence was hearsay and inadmissible, citing Odogwu v State (2013) 14 NWLR (PT 1373) 72 at 103-104. Her evidence was not a product of her investigation but of information relayed to her.
It was reiterated that PW4’s evidence should not be accorded weight in the light of the peculiar facts of the case, more so, when he did not personally examine PW2. That, in any event, the medical report, Exhibit P1, alone did not show that the Appellant committed the offence.
The Appellant also reiterated that the contradictory accounts of the incident as given by PW2 cast doubts as to the guilt of the Appellant, which contradictions or doubt must be resolved in favour of the Appellant, citing Usman v State (2019) 15 NWLR (PT 1696) 411 at 434.
On the contentions of the Respondent that the circumstantial evidence was cogent and unequivocal, it was submitted that the issue of circumstantial evidence does not arise in this case. The prosecution’s evidence was said to be the eye-witness account of PW2, which had been shown to be unreliable.
On alleged contradictions in the evidence of the Appellant, it was submitted that the Respondent did not show how these alleged contradictions showed that the Appellant committed the offence. That the important point was for the Court to marry the ingredients of the offence with the evidence adduced by the prosecution, which a proper evaluation of the evidence would have shown that the prosecution failed to establish the ingredients of the offence beyond reasonable doubt.
The Court was urged to resolve the points of law in favour of the Appellant.
Resolution
In our criminal jurisprudence, it is well settled that the burden of proving the guilt of an accused person in a criminal trial must be discharged by the prosecution beyond reasonable doubt; Section 135 of the Evidence Act, 2011. See also: Ogundiyan v. State (1991) LPELR-2333(SC), [1991] 1 NSCC 448; Shande v State (2005) 12 MJSC 152; (2005) LPELR-3035(SC); The State v. Azeez (2008) 4 S.C. 188; Bille v The State (2016) LPELR-40832(SC); Isah v The State (2017) LPELR-43472(SC); Kalgo v The State (2021) LPELR-53077(SC). The expression proof beyond reasonable doubt does not mean beyond any shadow of doubt or that of absolute or scientific certainty. ‘Proof beyond reasonable doubt’ simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness, unless it is an offence for which corroboration is statutorily required. The demand for proof beyond reasonable doubt takes bearing from the explicit provisions of Section 36(5) Constitution of the Federal Republic of Nigeria, 1999, as amended, by which an accused person is presumed to be innocent until his guilt of the offence is established. Expounding on the background for this demand, the Supreme Court, per Oputa, JSC in Bakare v State (1987) LPELR-714(SC) at pages 10 – 11, said: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit to plausible and fanciful possibilities but it does admit to a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373: –
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt”.”
Thus, while the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence; Ayinde v. The State (2018) LPELR-44761(SC); Abokokuyanro v. The State (2016) LPELR-40107(SC); The State v. Musa Danjuma (1997) LPELR-3216(SC). See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2010. Therefore, where all the ingredients of an offence have been established and proved by the prosecution, then the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348(SC); Alabi v. State (1993) 7 NWLR (PT. 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT. 1) 59.
The Appellant was charged under Section 137 of the Criminal Law of Lagos State C17 Laws of Lagos State of Nigeria, 2015, which provides:
Any person who has sexual intercourse with a child commits a felony and is liable on conviction to imprisonment for life.
In Adonike v State (2015) LPELR-24281(SC), in which the appellant therein was found guilty under Section 218 of the Criminal Code of Delta State for the defilement of a girl under 11 years, it was established that in order to secure conviction of an accused person for this offence, the prosecution must prove beyond reasonable doubt:
i. That the victim is a child.
ii. That there was penetration into the vulva of the vagina of the child by the defendant.
iii. That the evidence of the child must be corroborated.
See also: Adenekan v. The State of Lagos (2020) LPELR-50406(CA); James v. The State of Lagos (2021) LPELR-52456(CA).
As rightly submitted by the Respondent, the guilt of an accused person can be established by:
1. His direct, positive and voluntary confessional statement;
2. Circumstantial evidence.
3. Direct oral evidence given by a victim or by a witness who saw and watched the act.
See: Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1, Igabele v. State (2006) 6 NWLR (PT 975) 100, (2006) LPELR-1441(SC), (2006) 5 MJSC 96; Okpulor v. State 1990 7 NWLR (Part 164) 581; Afolalu v State (2010) 6-7 MJSC 187; Emeka v. State (2001) 88 LRCN 234; Ime David Idiok v. The State (2008) 6 MJSC 36, (2008) 4-5 S. C. (Pt. I) 84. No confessional statement was tendered by the prosecution. The Respondent relied on the evidence of the victim and circumstantial evidence in proof of the guilt of the defendant.
A child, under Section 418 of the Criminal Law of Lagos State, 2015, the interpretation section, has the meaning assigned to it in the Child Rights Law of Lagos State, 2015. Section 261 of the said Child Rights Law of Lagos State, 2015, defines child as a person under the age of eighteen. As rightly submitted by the Appellant, there was uncontroverted evidence that the victim was a child, within the meaning of the Child Rights’ Law of Lagos State. The victim, who testified as PW2, was 12 years old, a child under the age of 18 years, as at 2015. The first ingredient was therefore established.
The Respondent had called four witnesses. PW2, the victim, testified, pages 209–211 of the Record of Appeal:
A- We went to a house fellowship, and the house where we were doing it was next to the defendant’s compound. He was the leader of the programme, so I was asked to go and call him and when I got there he was inside and I knocked at the door, and he said, who was that? I said it was me and I continued by saying that I was asked to come and call him because we were about to start the fellowship and he said I should wait for him and I said, I was going to come back so he said, no that I should come inside and sit down. I was afraid to go inside and he said, I shouldn’t be worried that nothing is going to happen. So when I got inside, I sat on a white chair he went outside I don’t know what he went to do for about 15 minutes and he came inside and he was like pretending as if he wants to dress and I now asked him that do you want to dress? So I said let me step outside for him. He said, I should not worry that it is only shirt that he wants to wear that he was already wearing a jean trouser and I now said okay. So he went back outside, I still don’t know what he went outside to do and when he eventually came back he asked me to sit on the bed and I now said to do what? And he said, I should not worry, I was trying to run outside, the door was already locked and he pushed me to the bed and I was putting on a flame(sic) skirt like the one I am wearing that if you push me the skirt will open up to immediately as he pushed me my gown got opened, he pulled off my pant.
Q- Can you describe the room that went into?
A- It is only one room, there was a bed at the side of the room and just a stove with hanger that he hung his cloths and a white chair.
Q- How many people were in the room?
A- Nobody. I was the only one
Q- Can you describe to us what exactly he was wearing when you got to the room?
A- He was wearing a jean with boxer…
Q- After he slept with you what did you observe, did you observe anything?
A- Yes, I was bleeding so I ran home to change
Q- You were bleeding from where?
A- From my private part.
Q- So when you observed that, what did you do?
A- I went home to change
Q- To change your cloth
A- Yes
Q- After you changed your cloth, what did you do?
A- I went back to the fellowship
Q – After you changed your cloth, what did you do?
A- I went back to the fellowship
Q- So what happen after?
A- As my brother came back and he was asking why didn’t I come to the fellowship I told him nothing and as he was disturbing me, as an elder sister, I shouted at him and pushed him away.
I note that in the same breath, PW2 said that she went back to the fellowship after she changed her blood-stained pant/dress, and then that her brother came back (from the fellowship) to ask her why she did not go come for the fellowship and she said nothing. Thus, while one version of her story was that she went back to the fellowship, and the other version was that she did not go back, and her brother noticed her absence.
PW2 had made an extra-judicial statement to the police, Exhibit D2, page 8 of the Record of Appeal. This statement was made on 2/8/2015, when the incident was still fresh in her memory. She stated:
“I know a guy called Kingsley as my church member. I and my brother used to attend House fellowship together. The first time I met him was on Sunday because we attended the same church. After the church he said that he want(sic) to see me. After in the evening we went to house fellowship so they ask(sic) me to go and call him he now ask(sic) me to go and call him. When I went and call(sic) him he said I should come inside. I was afraid he told me not to be afraid and that if I should tell my parent that he will beat me. Then on Sunday we went for bible study he called I and my brother after church because that same street we pass to our house. When we got to his house he sent my brother outside and he force me to make love to me again…”
Now, from this statement, the day the alleged incident took place was not the first time PW2 had been in the Appellant’s room. According to her statement, the second time, she went with her brother, but the Appellant sent the brother out of the room and forced her to make love to her again. That is to say, she had been to the Appellant’s room before and it was also not her first time of being intimate with him. PW3, the IPO, testified that, page 232 of the Record of Appeal:
“According to the complainant, she said the first time the guy forced her was on the 22nd of the (sic) July so the second time she said she cannot remember either 26 or 27 but she cannot remember.”
Under cross-examination of PW2 at the trial, she further testified, pages 218–219 of the Record of Appeal:
Q – You told the Court some minute ago that when you were going to Kingsley’s room you did not go there with anybody?
A – Yes, sir
Q – You still stand by that statement?
A – Yes, sir
Q – Will you be surprised that in your statement to the police, you actually wrote that you went there with your brother?
A – No, sir
Q – Can you remember?
A – I can’t remember but I went there alone
MR. FAJIMITE – My Lord may I humbly ask the witness to read her last portion of her statement.
THE WITNESS: Read out the statement to the hearings of the Honourable Court.
MR. FAJIMITE – Now you can see that you went there with your brother, you remember now?
THE WITNESS: Yes, sir”
On whether she had been to the Appellant’s room before, PW2, under cross-examination said, page 222 of the Record of Appeal:
Q – So you are sure that he was using a room?
A – Yes, sir
Q – But was that the first time you were going there for the first time?
A – Yes, sir
Q – You have never been there until that particular day?
A – Sir I do pass through there because I have a friend in that particular compound.
Q – No we are talking about this issue
A – That was the first time sir
Q – And that was last day you were there too or you went there subsequently?
A – No, sir that was the last day I was there.
Clearly, her extra judicial statement, Exhibit D2, made soon after the alleged incident to the police, differed from her evidence at the trial Court.
Further, her evidence at the trial on how her father found out about the incident, was divergent from her extra-judicial statement, Exhibit D2. In Exhibit D2, PW2 stated:
“That same day on 26/7/2015 he came to our street and sent somebody to come and call me. That was how my uncle find out and he told my daddy.”
She testified at the trial, pages 211–212 of the Record of Appeal:
A – As my brother came back and he was asking why didn’t I come to the fellowship I told him nothing and as he was disturbing me, as an elder sister, I shouted at him and pushed him away.
Q – Okay, after you pushed him away, what now happened?
A – He went and told my daddy and that was how my daddy found about everything.
Then further:
A – So when my dad came back he told my dad that I am behaving strange that after we came back from Church that I was not in Church and my dad came to ask me and I said nothing happen(sic).
Q – He told your dad what?
A – That I was behaving strange.
Q – And then what happened after he told your dad that?
A – My dad came to meet me
Q – And what transpired?
A – When my dad came to meet me and asked me what happen. I refuse to tell him so after he beat me and I told him the truth of what happen and he now brought out a scissor that he was going to cut my hair so that was when I told him what happened.”
She testified that the incident happened on a Sunday but her brother informed her father about her strange behaviour on Saturday, about six days later. Under further cross-examination, she now said it was her uncle, who she had narrated the incident to, that told her brother. Her brother then informed her father. See page 223 of the Record of Appeal. Senior Counsel for the Appellant strenuously argued that these were material contradictions, which ought to be resolved in favour of the Appellant.
I agree that there were contradictions in the evidence of PW2 as stated in Exhibit D2, and during the hearing of the case. It is well settled that for contradictions in evidence of witnesses for the prosecution to affect conviction, they must be material to the fact or issue to be decided in a case and so substantial in the determination of the issue or case as to create doubt on the guilt of the accused person; Adenekan v. The State of Lagos (supra). The contradictions must be of such magnitude and relevance to the charge that to ignore them would cause a miscarriage of justice. Minor discrepancies in the evidence of the prosecution witnesses are not sufficient, without more, to entitle the Appellant to an acquittal; Iko v State (supra); Shurumo v. The State (2010) LPELR-3069(SC); Habibu Musa v State (2013) LPELR-19932(SC); Ogunbayo v. State (2007) LPELR-2323(SC); James v. The State of Lagos (supra).
But what were these contradictions? That PW2 had two or three versions on whether she had gone to the Appellant’s room twice and not once; whether she went alone both times or with her brother on one occasion; whether PW2 returned to the fellowship after the incident or whether she did not; whether it was her brother or uncle that reported her to her father or whether it was not. I really do not see that these contradictions were material to the charge the Appellant faced. Whether PW2 had gone to his room once or twice or countless times, or whether she went alone or with her brother, who was sent out of the room, were not material to the charge. How her father got the information that she had been defiled was also not relevant.
The fundamental issue was whether the Appellant had defiled PW2 who was a 12-year-old young girl at the material time; Adonike v State (supra); Adenekan v. The State of Lagos (supra). This was the kernel of the charge that was required to be proved by the prosecution. In a case of defilement, it is immaterial whether the act was done with or without the consent of the child. A 12-year-old child is incapable of consenting to sex. A child cannot consent to sex. And, even if she did consent, the Court would hold that she did not consent. Section 27 of the Child Rights Law of Lagos State clearly provides:
(1) A person must not have sexual intercourse with a child.
(2) Where a person is charged with an offence under this section, it is immaterial that-
(a) the offender believed the person to be of or above the age of eighteen (18) years; or
(b) the sexual intercourse was with the consent of the child.
The contradictions in the evidence of PW2 were therefore not material.
PW1 was the father of the victim. He admitted under cross-examination that all he knew about the incident was what his daughter, told him. PW3 was the IPO. Under cross-examination, PW3 also admitted that all she knew about the case was as communicated to her by PW1 and PW2, as well as the medical report, Exhibit P1. For the Appellant, the evidence of PW1 and PW3 were purely hearsay.
By Section 37 of the Evidence Act, 2011, hearsay evidence is a statement-
(a) oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
Hearsay evidence is not admissible except as provided in the Act or other statutory provisions; Section 38 of the Evidence Act, 2011. Exceptions to this general rule are provided under Section 39 of the Act. Clarifying what constitutes hearsay evidence, the Supreme Court, per Rhodes-Vivour, JSC in FRN v Usman (2012) LPELR-7818(SC) at pages 19 – 20, said:
“The question to be answered is what constitutes hearsay evidence. A witness is expected to testify in Court on oath on what he knows personally. If the witness testifies on what he heard some other person say, his evidence is hearsay. Such evidence is to inform the Court of what he heard the other person say e.g. in cases of slander. If on the other hand his testimony is to establish the truth of an event in question or as in this case to establish the truth of contents of the appellant’s statements, it is hearsay and inadmissible evidence.
Hearsay evidence is secondary evidence of an oral statement best described as second-hand evidence. What a witness says he heard from another person is unreliable for many reasons.” (Emphasis mine).
The hearsay rule is to protect an accused person from being convicted upon the testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony; Simeon v State (2018) LPELR-44388(SC). See also: Popoola v The State (2018) LPELR-43853(SC); Itodo v The State (2019) LPELR-49069(SC); Sama’ila v. The State (2021) LPELR-53084(SC); Okeremute v. State (2021) LPELR-55335(SC).
I also find instructive the decision in Zubairu v. The State (2015) LPELR-40835(SC), per Ngwuta, JSC, at page 16, that:
“Evidence of PW1 of what happened to the deceased in the house of the 4th accused in the evening of 7th April, 2002 does not derive its veracity solely from the credit given to the PW1 herself but rests wholly on the veracity and competence of her daughter who is the source of her information. That part of her evidence is hearsay and inadmissible as its object is to establish the truth of what is contained in the statement made to her by her daughter concerning the event that took place in the evening of 7th April, 2002 in the house of the 4th accused. See Zaki v. Magayaki (2002) FWLR (Pt.135) 795 ratio 10.”
PW1 merely repeated what his daughter, PW2, told him. He did not personally witness any act. His evidence was hearsay and cannot establish the truth of what PW2 asserted.
The evidence of the IPO, PW3, was in a different category. One of the issues that came up for determination by the Supreme Court in Ijeoma Anyasodor v The State (2018) LPELR-43720(SC) was whether the lower Court was right to have relied on the evidence of the Police IPO in its judgment. The Apex Court, per Sanusi, JSC, held, pages 20 -21 of the E-Report: “On the appellant’s counsel’s submission that the testimony of PW3 was hearsay, I am also at one with the lower Court’s conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contact with in the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade vs. The State (2009) All FWLR (pt. 469) (SC) 423.” (Emphasis mine)
Contributing to the decision in Olaoye v The State (2018) LPELR-43601(SC), Peter Odili, JSC said, page 42–43 of the E-Report:
“It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating Police Officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him, since the Court has to know the synopsis of his investigative journey it is direct evidence. See Obot v State (2014) LPELR – 23130 (CA).”
See also Ayodeji v FRN (2018) LPELR-45839(CA); Obot v State (2014) LPELR-23130(CA). These pronouncements establish that facts or pieces of evidence that may incriminate or exculpate an accused person, which come to the knowledge of an Investigating Police Officer in the course of investigation do not constitute hearsay evidence. The case is different where evidence is given of a statement or other assertions made by some other person, who was not called as a witness, to establish the truth of what was asserted. That clearly would constitute hearsay evidence, which is inadmissible; Okoro v The State (supra), (1998) LPELR-2493(SC); Ijioffor v The State (2001) LPELR-1465(SC); Olalekan v The State(2001) LPELR-2561(SC). The evidence of an IPO garnered under investigation therefore constitutes an exception to rule against hearsay evidence;Arogundade v. The State (2009) LPELR-559(SC).
PW3 admitted that all she knows about the case was narrated to her by PW1 and PW2, as well as by the medical report, Exhibit P1. She gave them a medical form to take to the Mirabel Centre, Lagos State University Teaching Hospital, Ikeja, for examination. Exhibit P1 was the medical report from Mirabel Centre, which constituted one of the pieces of evidence garnered in the course of her investigation. In the circumstance, the evidence of PW3 did not constitute hearsay evidence.
PW4 was the medical doctor from Mirabel Centre. He did not personally examine PW2 but he was part of the medical unit in Mirabel Centre, whose responsibility it was to conduct such examinations. The Appellant had raised contentions over the fact that PW4 did not personally examine PW2 and did not personally sign the medical report. His evidence was based on what he had read about PW2 in the report, Exhibit P1. On this point, I consider it well settled that it is not mandatory that a medical report should only be tendered by the medical officer who prepared it, unless the defendant disagrees with the contents of the report or it is desirable to call the medical officer in the interest of justice. A medical report is admissible even if it is not tendered through the maker; Fulani M v. State (2018) LPELR-45195(SC); Ali v. The State (2018) LPELR-45995(CA). See also Section 55 of the Evidence Act, 2011. The medical report, Exhibit P1, was therefore rightly admitted in evidence by the lower Court.
Under cross-examination, PW4 said, page 237 of the Record of Appeal:
“Q: In that report what could cause the redden bruises in that report of the inner surface of the genital lips and the raw surface of the posterior project?
A: The cause according to the client was that there have(sic) been forceful penetration into her vagina but as a doctor it is not experience(sic) of me to say this is what might(sic) happened. The forceful penetration could have been the penis, could have been carrot, could have been banana, it could have been stick but in conclusion here is the keeping with the fact that there have(sic) been penetration which has caused bruises into the client vagina especially the lips of the vagina as the forceful penetration.
Q: It is also stated that there was this tick(sic) creamy vaginal discharge, will you please explain what this means?
A: The creamy discharge could have been anything. It could have been the semen, which we call the sperm. It could have been as a result of an inflammatory process going on.”
PW4 and Exhibit P1 established that there was forceful penetration of PW2’s vagina. The question now is whether the forceful penetration was perpetrated by the Appellant. PW2 testified that the forceful penetration was by the Appellant.
PW2 was 14 years at the time she was testifying. The Respondent’s Counsel had argued that by virtue of Section 209(2) of the Evidence Act, 2011 the evidence of PW2 need not be corroborated. By Sections 209(1) and (3) of the Evidence Act, 2011, corroboration is required for the unsworn testimony or evidence of a child under the age of fourteen years for the conviction of an accused person for any offence. There must be some other material evidence in support implicating the accused person, aside from the unsworn testimony of a child;Idi v. State (2017) LPELR-42587(SC); Sambo v State (1993) LPELR-3000(SC); Dagayya v. The State (2006) LPELR-912(SC).
On the other hand, Section 209(2) provides that:
A child who has attained the age of 14 years shall, subject to Section 175 and208 of this Act give sworn evidence in all cases.
Section 175 (1) provides:
All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, any other cause of the same kind.
Section 208, which deals with cases in which evidence not given upon oath may be received, is not relevant in this appeal.
PW2 testified on oath, and she was quite lucid in her testimony. By virtue of Section 209(2), the trial Court could act on her sworn testimony.
However, it is important to bear in mind the peculiar circumstance of the instant case. The defendant was charged with the defilement of a child. One of the established elements required to prove this offence is that the evidence of the child must be corroborated; Adonike v State (supra); Kiwo v The State (2020) LPELR-53900(SC); Aje v State (2019) LPELR-46828(CA); James v The State of Lagos; Eze v State (2019) LPELR-47984(CA); Norman v The State of Lagos (2021) LPELR-55647(CA). Therefore, notwithstanding the sworn testimony of PW2, there was need for her testimony to be corroborated, having regard to the charge faced by the Appellant.
On the nature of corroborative evidence, the Supreme Court in Iko v State (2001) LPELR-1480(SC) at pages 13-14, citing with approval the decisions in R. v. Baskerville (1916-17) All ER Reprint 38 at 43, and D.P.P. v. Hester (1973) AC 296 at 315, held that
“…while corroborative evidence must be independent and capable of implicating the accused in relation to the offence charged, it must be credible and must go to confirm and support that evidence which is sufficient, satisfactory and credible whether the case is one in which it is required by statute or by rule of practice.” (Emphasis mine).
The required corroboration must not merely establish that a crime has been committed but must go to
identify the defendant with the crime in some material particular; Omisade v The Queen (1964) LPELR-25119(SC); Habibu Musa v The State (supra). Corroborative evidence is evidence, which shows or tends to show that the story that the accused person committed the crime is true, not merely that the crime has been committed but that it was committed by him; Okabichi & Ors v. State (1975) LPELR-2406 (SC); Ogunbayo v. State (supra); Ifaramoye v. The State (2017) LPELR-42031(SC).
In her concurring opinion in Kiwo v The State (supra), Peter-Odili, JSC described the essence of corroboration thus, page 26 of the E-Report: “The essence or purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and credible. What corroboration does in effect is to give support or strength to the assertion of the prosecution. Therefore in this instance the corroborative evidence of PW2, PW4 and PW5 and Exhibits P1 and PW2 are such that confirm in material particular not only that an offence has been committed but that it was appellant that committed it.” (Emphasis mine).
Corroborative evidence may be circumstantial. In Lori & Anor v State (1980) LPELR-1794(SC) at pages 8-9, the Supreme Court, per Nnamani, JSC, described circumstantial evidence in this manner:
“It is conceded that circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. R. v. Taylor and 2 ors. 21 Cr. App. R. 20. See also Rex v. Chung Y1 Miao 1928, Shortland Re. Cited in Wills on circumstantial Evidence, Seventh Edition (1936) p. 324 per Humphreys, J. But the circumstantial evidence sufficient to support a conviction in a criminal trial, especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” (Emphasismine).
See also Nasiru v State (2021) LPELR-55637(SC); Ukorah v State (1977) LPELR-3345(SC); Olorunfemi v. The State (2018) LPELR-45894(CA).
The learned trial Judge held that the evidence of PW1 and PW3 corroborated the evidence of PW2. The evidence of PW1 has already been adjudged to be hearsay. The evidence of PW1, who merely repeated the account of the incident as relayed to him by his daughter, PW2, cannot be viewed as being independent and capable of implicating the Appellant in relation to the offence charged. His evidence did not prove or confirm and support the allegation that PW2 was defiled by the Appellant.
Corroborative evidence includes a medical report which shows injury to the private part of the victim or any other part of her body; Iko v The State (supra); Popoola v. State (2013) LPELR-20973(SC). Exhibit P1, the medical report, confirmed that there was penetration of PW2’s vagina. PW4 testified that this penetration could have been caused by a penis, a carrot, a banana or even a stick. He did not conclusively assert that it was a penile penetration. Further, even if it were a penile penetration, Exhibit P1 did not conclusively prove that the Appellant was the culprit.
The Appellant, who testified as DW4, said that he knew PW2 as a member of his Church. DW1 testified that she sent PW2 and her friend to go and call the Appellant and his friend (DW3) to attend the house fellowship conducted in her apartment, which was beside the Appellant’s room. The Appellant admitted that PW2 came with her friend to call him for the house fellowship but that when she came, he was not alone. Hehad three other friends with him. DW2 and DW3, who were his friends, testified as much. DW4 said that he and his friend went to the fellowship but did not meet PW2 there. DW1 also testified that she did not see PW2 at the fellowship after she went on the errand. This piece of evidence from DW1 and DW4 seem to be in line with one of the versions of PW2 that she did not go back to the fellowship.
PW3 admitted under cross-examination that aside from what she was told by PW1 and PW2, she did no further investigation, because the Appellant wrote a confessional statement. It is important to note that the said extra-judicial statement made by the Appellant was not tendered in evidence.
An extra-judicial statement which has not been tendered and admitted as evidence in a trial cannot be conside by the Court. Its contents cannot be examined by the Court to ascertain whether it was actually a confessional statement. Extra-judicial statements which remain in that category, however credible they may appear, cannot be used as evidence; The State v. Ogbubunjo (2001) LPELR-3223(SC) at page 38 of the E-Report, (2001) 2 MJSC 145, (2001)1 S.C. (PT I) 90. Therefore, statements contained in proof of evidence, which are not tendered in Court, do not constitute legal evidence; Esangbedo v The State (1989) LPELR-1163(SC), (1989) 4 NWLR (PT. 113) 57; Idoko v The State (2018) LPELR-45893(CA); Olorunfemi v The State (supra).
The Respondent argued that the evidence of PW2 on the defilement should be accepted, being the victim and eyewitness, who had identified the Appellant as the culprit. However, much as I am of the view that the contradictions in the account of PW2 of the incident were not material, her evidence mandatorily required corroboration, more so having regard to her age at the time the incident allegedly happened; Adonike v State (supra); James v State (supra). I consider it patently unsafe to act solely on the evidence of PW2 without corroboration.
In this light, it is my considered view that neither the evidence of PW1, nor the evidence of PW3, nor even Exhibit P1, circumstantially or otherwise, corroborate the evidence of PW2, to confirm and support the allegation that PW2 was defiled by the Appellant and no other. See also Damuna v. State (2020) LPELR-51309(CA).
Senior Counsel for the Appellant had submitted in paragraph 5.38 of the Appellant’s Brief, thus:
“While it is regrettable that PW2 as shown by the medical evidence may have been exposed to sexual encounters as a minor, hard evidence did not show that the Appellant had sex with him(sic). Thus, the guilt of an accused must be proved to support a conviction, no matter the wickedness of the heinous offence. There is no place for suspicion, speculation and sentiment in law as an erroneous conviction is equally heinous.”
I find that I have to agree with the position of the Appellant. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. Courts of Law do not reach decisionz based on speculation, conjecture or by filling in blanks; Addo v State (2020) LPELR-55521(SC); Adegbite v. State (2017) LPELR-42585(SC).
A conviction must be founded on evidence establishing the guilt of the defendant, beyond reasonable doubt; Igbikis v. State (2017) LPELR-41667(SC); Obiakor v The State (2002) LPELR-2168(SC). See also Section 135 (1) of the Evidence Act, 2011. A conviction stands only if there is proof beyond reasonable doubt, otherwise, the defendant is entitled to an acquittal; Adelu v State (2014) LPELR-22886(SC); Smart v The State (2016) LPELR-40827(SC); The People of Lagos State v. Umaru (2014) LPELR-22466(SC), (2014) 7 NWLR (Pt.1407) 584. In Augustine Onuchukwu & Anor v. The State (1998) 4 NWLR (Pt. 547) 576, (1998) LPELR-2701(SC) at page 21, the Supreme Court, per Uthman Mohammed, JSC had stated the position of the law thus:
“But it is a cardinal principle of justice that conviction could only follow where the charge against an accused person has been proved beyond any reasonable doubt. Throughout the web of criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt. Once there is reasonable doubt created by the evidence given the prisoner is entitled to an acquittal.”
From the foregoing, it is clear that the elements of the offence of defilement were not established against the Appellant without reasonable doubt. PW2 was a child at the material time of the alleged incident. There was penetration of her vaginal cavity but her evidence that it was the Appellant who was responsible for the act was not corroborated. I am of the firm view that it would be unsafe to convict the Appellant on the uncorroborated evidence of PW2. The sole issue for determination of this appeal is thus resolved in favour of the Appellant.
This appeal therefore succeeds. The conviction and sentence of the Appellant on 11/6/2018 is hereby set aside. The Appellant is accordingly discharged and acquitted.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the erudite leading judgment delivered by my learned brother: Onyekachi Aja Otisi, JCA. I endorse in toto the legal reasonings and conclusion in it. I, too, allow the appeal in the manner decreed in the leading judgment. I abide by the consequential order ordained therein.
ABUBAKAR SADIQ UMAR, J.C.A.: I have read the judgment of my learned brother ONYEKACHI AJA OTISI, JCA. I agree with the reasoning and conclusion.
I also set aside the judgment of the lower Court.
The appeal hereby succeeds, and accordingly the appellant is hereby discharged and acquitted.
Appearances:
C.O.P. Emeka, SAN, with him, Oluwakemi Oni, Esq. and Jennifer Dipnap, Esq. For Appellant(s)
Y.A. Sule, Esq., Assistant Chief State Counsel, Ministry of Justice, Lagos State. For Respondent(s)
