MOJEED v. STATE (2020)

MOJEED v. STATE

(2020)LCN/14164(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/IB/160C/2017

Before Our Lordships:

Helen Moronkeji Ogunwumiju Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

OLAONIPEKUN MOJEED APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED ON THE UNCORROBORATED EVIDENCE OF THE PROSECUTION IN A CHARGE OF RAPE

Generally, it is not rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecution. It has however been clearly established in the rule of practice that the proper direction is that not being safe, the Court is expected to warn itself. After the due warning and the Court is satisfied with the truth of evidence of the prosecution the accused can be convicted without looking for any other corroboration”.
See Alonge v. I.G.P. (1959) SCNLR 516 cited approval on the same issue in Musa v. State (supra).
The case of Ogunbayo v. The State (2007) All FWLR 408 at 426 (Kutigi, CJN, Katsina-Alu, Tobi, Oguntade, Ogbuagu, JJ.S.C.) decided it per the lead judgment prepared by Ogbuagu, J.S.C., relying on the case of Sunmonu v. I.G.P. (1957) WRNLR 23, that it needs to be stressed that corroboration is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. His lordship went on to hold in page 430 of the law report that–
“My answer therefore, to issue 1 of the appellant is that corroboration is not necessarily required because, it is not a rule of law that an accused person cannot be convicted on uncorroborated evidence of the prosecutrix”.
The case of The State v. Ogwudiegwu (1968) NMLR 117 was referred to in Ogunbayo v. State (supra) where it was held that it is not essential, in order to secure a conviction for the offence of rape, to require corroboration of the evidence of the prosecutrix implicating the defendant, but a judge must warn himself of the risk of convicting on the uncorroborated evidence of the prosecutrix.
The case of Iko v. State (2001) 14 NWLR (pt.723) 221 was further referred to in Ogunbayo v. State (supra) where it was held in part of the judgment that it is not the rule of law that a defendant in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. And that the proper direction the Judge should follow is that as it is not safe to convict on the uncorroborated evidence of the prosecutrix he may warn himself as such and after warning himself appropriately, nevertheless convict the defendant if satisfied with the truth of her evidence. PER IKYEGH, J.C.A.

WHETHER OR NOT EVIDENCE ELICITED UNDER CROSS-EXAMINATION THAT REINFORCES THE CASE OF THE PARTY FIELDING THE WITNESS IS CONSIDERED POTENT

Evidence elicited under cross-examination that reinforces the case of the party fielding the witness is considered potent and invaluable vide State v. Yahaya (2019) 14 NWLR (pt.1690) 397 at 435 – 436 to the effect that evidence given under cross-examination is just as potent as evidence given during examination-in-chief; and that an accused or his counsel who had procured inculpatory evidence from cross-examining a witness is estopped from insisting that such inculpatory evidence does not bind him following the cases of Okpoko v. Uko (1997) 11 NWLR (pt.527) 94, Pius v. State (2015) 7 NWLR (pt.1459) 628. PER IKYEGH, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

When a case turns on the relative credibility of witnesses who have been examined and cross-examined and re-examined by parties at the Court below, which had the unparalled advantage of seeing and hearing the witnesses and whose decision turns on the manner and demeanour of the witnesses, it would need deep breath and/or hesitation by the Court sitting on appeal and guided by the impression made of the witnesses by the Court below to disturb the said findings. (Per Lindley M.R. in the apt case of Coghlan v. Cumberland (L.R. 1896 1 Ch.At 704 and 705).
There is the Supreme Court case of Adisa v. State (2019) 3 NWLR (pt.1660) 488 at 500 where it was held thus –
“This is a finding made by the trial Judge who is in the vantage position of assessing the credibility of the witnesses in the trial by watching their demeanor and from that vantage position has the privilege of believing and accepting the evidence of the witness in preference to the evidence adduced by the defence. See: Adelumola v. State (1988) 1 NWLR (Pt.73) 683 and Sugh v. State (1988) 2 NWLR (Pt. 77) 475. Any finding of a Court based on facts cannot and will not be interfered with by an appellate Court unless the finding is perverse and is not supported by credible evidence. See: Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1129) 659; Nwokorobia v. Nwogu (2009) 10 NWLR (Pt. 1150) 553. PER IKYEGH, J.C.A.

THE CRIMINAL OFFENCE OF RAPE

It is pertinent to copy below what His Lordship, I. T. Muhammad, J.S.C., (now C.J.N.) said of rape (or any sexual offence)in the case of Musa v. State (supra) at 238 –
“Rape in our society and indeed in any human society is a grave and serious offence committed by those people who are shameless, merciless and animalistic. I cannot imagine a situation where one will put aside his honour, integrity and humanness to over-power or lure a young girl of tender age to have her carnal knowledge. It is against common sense. It is against humanity and God the Creator will not allow such a bestial behaviour to go unpunished even here in the mundane life. It is the lesser punishment of God that has caught-up with the appellant. I wish it were heavier”.
Let me humbly and gratefully cull from what the Supreme Court expressed on the prevalence and outrageousness of the crime of rape or sexual crimes and its revulsion to a decent society in the case of Fatai v. State (2013) 10 NWLR (pt.1361) 1 at 26, where His Lordship, M. D. Muhammed, J.S.C., bemoaned the sad and unfortunate story of a young lady who was raped by –
“the animal in us, the beastly among us whose morality, sanity and humanity had evaporated”.
Here is an appellant who premeditated to have sexual intercourse with the prosecutrix, the PW1, a child. He said that much in his statement to the police, Exhibits 2 and 3, and in his sworn evidence. Such callous calculation to ruin a child emotionally and psychologically is to say the least reprehensible. PER IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Ogun State (the Court below) by which it convicted the appellant for the offence of having sexual intercourse with a child contrary to Section 32(2) of the Child’s Rights Law, (Volume 1) Laws of Lagos State. The Court below sentenced the appellant to imprisonment for life.

In summary, it was the case of the respondent that the prosecutrix, the PW1, then aged 11 years as at 19.04.12 but 16 years as at 20.12.16 when she testified on oath, stated that on 19.04.12, she was on an errand at the instance of her mother to deliver nylon cloth to one woman when she met the appellant on the way who asked her to come. She followed the appellant because he used to call her and send her on errand, previously. The appellant took her to an uncompleted building. He told her to lie down and remove her pant. She did not answer him. The appellant forcefully removed her pant and had sexual intercourse with her by putting his penis inside her vagina. There had been no cordial relationship between the prosecutrix and the appellant

before the incident.

The PW1, the prosecutrix, said she was screaming in the course of the sexual intercourse. Some children passing by heard her scream. They alerted an old man. The old man came as well as a woman who happened to be next to the uncompleted building. Upon sighting them, the appellant jumped through the window and escaped. The old man took the PW1 to her mother. The case was reported to the police at Mowe Divisional Police Station. Police Inspector Muritala Ibijoke attached to Juvenile Welfare Human Correction/Conflict Resolution (J.W.C.) Department, Mowe Division, investigated the case. After recording the statement of the prosecutrix, Exhibit 1, the police investigator, PW2, took the prosecutrix to Oyinlola hospital, a private hospital, for medical examination on the same 19.04.12. She was examined and discharged after treatment.

It was the following day, 20.04.12, that the appellant was arrested by the police. He denied making a statement to the police when the respondent sought to put his statement in evidence. The statement to the police was however, admitted as Exhibit 2. The respondent tendered the photocopy of the medical

report which was, upon objection by the appellant, rejected in evidence and marked “tendered but rejected”.

A senior nurse of over 20 years experience who testified as the PW3 stated that the prosecutrix was brought to their hospital, Oyinlola hospital, Mowe on 19.04.12. She was about 10 years old. She complained that she was raped the night before. The only medical doctor attached to the hospital was not on seat. She attended to her in the place of the medical doctor. She inserted her finger into the vagina of the prosecutrix and it went in without interruption, evidencing penetration of the vagina. Upon physical examination of the prosecutrix’s vagina, the PW3 further discovered that the vagina was a little bit swollen without bleeding. She tried to relieve the pain for the prosecutrix and advised her parents to do certain es-HVS, HIV and urine test to check her for sexually transmitted infection. But the parents did not take the advice.

The PW3 then wrote an interim report expecting the parents of the prosecutrix to come back to see the medical doctor but they never did. The PW3 stated further that she had been a practicing

nurse since 1988 and had in the course of practice for over 20 years examined many victims of rape. The PW3 maintained that in the absence of a medical doctor, she could perform certain medical duties like examination of a rape victim and that her physical examination of the prosecutrix was thorough, upon which the respondent closed its case at the Court below.

The appellant, a bricklayer, stated his own side of the case that on 19.04.12, he called the prosecutrix to send her on an errand. That he had in mind to rape her that day. He was in the process of raping her, when one little girl saw them and went to call people. He escaped through the window when some people rushed to the scene. Police arrested him on the second day. He was taken to the police station where he was asked to give a statement. He obliged. The statement was admitted in evidence as Exhibit 3. The appellant was thereafter put on trial for the offence charged. The appellant closed his case on that note.

The Court below believed and accepted the case presented by the respondent and rejected the defence of the appellant and convicted the appellant for the offence of having sexual

intercourse with a child and sentenced him to life imprisonment under Section 32(1) and (2), of the Child’s Rights Law, Laws of Ogun State, 2006.

The appellant was dissatisfied with the decision of the Court below and filed a notice of appeal with six (6) grounds of appeal on 28.03.17. The brief of argument of the appellant was filed on 20.03.19, but deemed as properly filed on 25.03.19.

The appellant contended in the brief that the evidence adduced by the respondent at the Court below did not prove penetration of the vault of the vagina of the prosecutrix and that there was no corroboration of the evidence of the prosecutrixas the PW3, a senior nurse, was not shown to be an expert in medicine and her evidence could not corroborate the evidence of the prosecutrix on penetration of her vagina, therefore the elements of the offence charged were not proved beyond reasonable doubt by credible evidence; especially as clinical evidence was absent; consequently, the appellant argued that the Court below was wrong to convict him for the offence charged citing in support of the above submissions the cases of Alabi v. State (1993) 7 NWLR (pt.307) 511 at

523, Ozaki v. State (1990) 1 NWLR (pt.124) 92 at 115, Buba v. State (1992) 1 NWLR (pt.215) 1 at 10, Okechukwu v. State (1993) 9 NWLR (pt.315) 78 at 93, Adonike v. The State (2015) All FWLR (pt.772) 1631, Njovens and Ors. v. The State (1973) 8 N.S.C.C. 257 at 279, Osuoha v. State (2010) 16 NWLR (pt.1219) 364 at 400, Uwaekweghinya v. The State (2005) All FWLR (pt.259) 1911 at 1930, Tuah v. State (2010) NWLR (pt.1203) 519 at 533 – 534, Azu v. State (1993) 6 NWLR (pt.299) 303 at 311 – 312, Okoyomon v. State (1973) N.S.C.C (Vol.8) 89, Sowemimo v. State (2004) 11 NWLR (pt.885) 515, Gabriel v. State (1989) 5 NWLR (pt.122) 457 at 468 – 469, Bassey v. State (2012) 12 NWLR (pt.1314 209, Ukershima v. State (2003) FWLR (pt.137) 1117 at 1130 – 1131, Iko v. State (2001) 14 NWLR (pt.732) 221 at 245 – 246, Ezigbo v. State (2012) 16 NWLR (pt.1326) 318 at 329, Ojo v. F.R.N. (2008) 11 NWLR (pt.1099) 476 at 529 – 530, Egboghonome v. State (1993) 7 NWLR (pt.306) 383 at 436, Sule v. State (2009) 17 NWLR (pt.1169) 33 at 60, Ejinima v. The State (1991) 6 NWLR (pt.200) 627, Ikemson & Ors. v. The State (1989) 3 NWLR (pt.110) 455 at 467 – 468,

Ibeh v. State (1997) 1 NWLR (pt.484) 632 at 651 and 655.

The appellant also submitted that apart from the apparent contradiction in the evidence of PW3 who did not qualify as an expert witness under Section 56 of the Evidence Act, 2011 (Evidence Act), coupled with the impossibility of the evidence of PW2 and PW3 to corroborate that of PW1, the statement of the appellant to the police, Exhibit 2, which forms part of the case of the prosecution is also of no use to the case of the prosecution in establishing the elements of the offence of rape.

According to the submission of the appellant, Exhibit 2, the appellant’s said statement to the police, is not a confirmation that the offence of rape was committed, rather it reinforces the inconsistency in the prosecution’s case and further goes to strengthen the appellant’s defence; the effect being that there is nothing on the face of the record of appeal (the record) to sustain the conviction of the appellant; consequently, the appellant urged that having regard to the fact that the respondent failed to establish the presence of all the elements of the offence of rape, with particular

emphasis on penetration, the appeal should be allowed and the judgment of the Court below set aside.

The respondent filed its own brief of argument on 24.09.19. The respondent contended in the brief that the combined evidence of PW1, PW2, PW3 and Exhibits 1, 2, 3, confessional statements, proved beyond reasonable doubt, without any material contradiction, that the appellant who was known to the prosecutrix, PW1, before the incident had sexual intercourse with the prosecutrix; that the prosecutrix or victim of the crime was at the material time a child and that although the sexual intercourse was without her consent (by force), consent is not required under the law the appellant was charged and convicted, therefore the conviction and sentence of the appellant should not be disturbed citing in support of the contention the cases ofJua v. The State (2010) 2 SCM 68 at 70, Posu v. State (2011) 3 NWLR (pt.393) (pagination not supplied), Upahar v. The State (2003) 6 NWLR (pt.816) 230, Ogunbayo v. State (2007) 1 NWLR (pt.1035) 157 at 179, Adonike v. The State (2015) LPELR – 24281 (SC), Isa v. The State (2016) LPELR – 40011 (SC) pg.10 – 11,

Ndidi v. State (2007) 13 NWLR (pt.1052) 633, Akpa v. State (2008) 8 SCM 68, Nwachukwu v. State (2007) 12 SCM (pt.2) 447 at 454, Oseni v. State (2012) 4 SCM 150 at 153, Abirifon v. The State (2013) 9 SCM 1 at 4, Ismail v. State (2011) 10 SCM 35 at 39, Dagayya v. State (2006) 2 SCM 33 at 67, SPDC (Nig.) Ltd. v. Tiebo (1996) 4 NWLR (pt.445) 657 at 686, Ebeinwe v. The State (2011) 3 SCM 46 at 47, Ndukwe v. State (2009) 2 SCM 147 at 150, Musa v. State (2013) 3 SCM 79 at 93, Attah v. State 8 SCM 177 at 185 and Black’s Law Dictionary 7th Edition on the definition of ‘expert’ read with Section 68(2) of the Evidence Act and the definition of the word “process” by Oxford Dictionary as a series of actions or steps taken in order to achieve a particular thing with respect to the evidence of the appellant that he was in the process of raping the PW1 when he was interrupted indicating the appellant was already raping the PW1 when he was interrupted; upon which the respondent urged that the appeal should be dismissed and the decision of the Court below upheld.

Exhibit 1 is the witness statement of the PW1 to the police. Its use is confined to testing

the consistency/veracity of the evidence of the PW1. It is not evidence to act upon. Save to test the accuracy, veracity or credibility of the maker of Exhibit 1 and perhaps destroy the evidence of the maker of the statement to the police as a witness, it has no utility value.
Exhibit 1 was not put to such use vide Sections 231, 232 and 233(c) of the Evidence Act. Exhibit 1 does not therefore advance the case of the appellant vide The Queen v. Akanni (1960) N.S.C.C. 78. The statement of the appellant to the police, Exhibit 1, can only be used to contradict her evidence upon drawing her attention to the portion sought to contradict her during cross-examination and prove her inconsistency for the purpose of testing and destroying her credibility. The statement is not admissible for the purpose of proving the truth of its contents vide Mathew v. State (2019) 8 NWLR (pt.1675) following Madumere v. Okafor(1996) 4 NWLR (pt.445) 637, Bayol v. Ahemba (1999) 10 NWLR (pt.513) 352, Kasa v. State (1994) 5 NWLR (pt.344) 269, Romaine v. Romaine (1992) 4 NWLR (pt.238) 650.

The appellant denied making the statement to the police, Exhibit 2, at the time it was

tendered in evidence vide page 26 of the record. The said statement, Exhibit 2, is contained in page 8 of the record. The appellant stated therein that he had made up his mind to rape the PW1 and was about preparing to rape her when one man with a cutlass spotted them which made him to escape from the scene.

A confession is defined in Section 28 of the Evidence Act as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. Exhibit 2 did not admit the crime of rape or having sexual intercourse with a child, so it is not a confessional statement vide State v. Yahaya (2019) 13 NWLR (pt.1690) 397 at 408 (para D – E) following Kasa v. State (1994) 3 NWLR (pt.344) 408.

Exhibit 3, is the same statement made by the appellant to the police which is contained in pages 17 and 18 of the record in which the appellant stated categorically that he took the PW1 into an uncompleted building determined to rape her but was interrupted by an old man who emerged at the scene with a cutlass and pursued him. Again, Exhibit 3 is not a confessional statement. The series of cases (supra) cited by

the respondent on confessional statements are on that premise inapplicable to this case.

The appellant stated under cross-examination that he read up to primary five (5) level and learnt brick-laying; that he was inside the uncompleted building when he saw the prosecutrix, the PW1, passing by and called her and took her inside the uncompleted building; that he had intended to rape the PW1 but was interrupted by some people who were alerted by one child; and that it was when he was about to remove the PW1’s skirt that the people came on the scene to interrupt him.
Those pieces of evidence were not put to the PW1 under cross-examination. The defence must challenge all the evidence it wishes to dispute by cross-examination not at defence stage therefore these pieces of evidence went to no issue vide Okosi and Anor. v. The State (1989) 1 NWLR (pt.100) 642 at 657, Olasehinde v. The State (2019) 1 NWLR (pt.1654) 555 and Agbonifo v. Aiwereoba (1988) 1 NWLR (pt.70) 325.

The PW1 supplied the credible evidence that the penetration was done by the appellant inserting his penis into her vagina. The PW1 testified in examination-in-chief in page 25 of

the record that the appellant forcefully removed her pant and had sexual intercourse with her on the fateful date. The PW1 fortified her evidence under cross-examination in page 26 of the record that the appellant put his penis inside her vagina on the fateful date.

In believing the PW1 and rejecting the defence of the appellant, the Court below which had the singular opportunity of watching the witnesses in the witness-box in the course of their evidence found as a fact that the evidence of PW1 established that there was penetration of her vagina by the appellant’s penis. The law is that penetration no matter how slight is sufficient and that it is not necessary to prove injury or rupture of the hymen to constitute the crime of rape or having sexual intercourse with a child once penetration of her vagina by the penis of the accused is proved vide State v. Masiga (2018) 8 NWLR (pt.1622) 383 at 399 (paragraph E).
The Supreme Court had cause to state in the case of Aliyu v. State (2019) 11 NWLR (pt.1682) 108 at 136 per the judgment prepared by His Lordship, Kekere-Ekun, J.S.C., that the most important and essential ingredient of rape (or having

sexual intercourse with a child) is penetration of the penis of the accused into the vagina of the prosecutrix and that even the slightest penetration is sufficient to constitute the act of sexual intercourse.

The Court below warned itself before accepting the evidence of PW1 to convict the appellant in these unedited words contained in its judgment in pages 46 – 47 of the record –
“I have soberly and gravely warned myself of the fact that it might be unsafe to convict the accused person solely on the uncorroborated evidence of PW1. I am very much conscious of the danger in doing so. Watching PW1 very closely during her testimony and after carefully considering her evidence, I am fully convinced that she was a witness of truth and that she knew what she meant when she said that the accused put his penis inside her vagina. Even though she was testifying four years after the unfortunate act, the incident remained vivid to her. She had no hesitation at all about what exactly happened. When it was suggested to her that she might have cooked up her story, she almost erupted in anger when she stated categorically and very eloquently: “he

put his penis inside my vagina”. I had absolutely no doubt that she knew and understood exactly what she was talking about. I believe her.
I am convinced by and from her evidence that the accused indeed penetrated her vagina when he forced her into the sexual act on the said date. Although both in his statement to the police and oral testimony before this Court, the accused insisted that he had not yet had intercourse with her, but only preparing to do so, when people came on the scene and he ran away, I do not believe his evidence. I rather believe the evidence of the PW1. I find it safe to rely on the evidence of PW1, even if uncorroborated, in deciding the fate of the accused. Therefore, with or without the evidence of PW3, or the medical report, it is my firm view that the elements of the offence have been satisfactorily proved. I hold that the prosecution has proved the case against the accused person beyond reasonable doubt. I find the accused guilty as charged and convict him accordingly”

I am of the considered opinion that the Court below sufficiently warned itself of the uncorroborated trustworthy evidence of the PW1, the

prosecutrix, before convicting the appellant for the offence, of having sexual intercourse with a child and thus complied with the Supreme Court decision in the case of Habibu Musa v. The State (2013) 9 NWLR (pt.1359) 214 at 242 – 243 cited in the case of State v. Masiga (supra) at page 402 thus –“Generally, it is not rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecution. It has however been clearly established in the rule of practice that the proper direction is that not being safe, the Court is expected to warn itself. After the due warning and the Court is satisfied with the truth of evidence of the prosecution the accused can be convicted without looking for any other corroboration”.
See Alonge v. I.G.P. (1959) SCNLR 516 cited approval on the same issue in Musa v. State (supra).
The case of Ogunbayo v. The State (2007) All FWLR 408 at 426 (Kutigi, CJN, Katsina-Alu, Tobi, Oguntade, Ogbuagu, JJ.S.C.) decided it per the lead judgment prepared by Ogbuagu, J.S.C., relying on the case of Sunmonu v. I.G.P. (1957) WRNLR 23, that it needs to be stressed

that corroboration is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. His lordship went on to hold in page 430 of the law report that–
“My answer therefore, to issue 1 of the appellant is that corroboration is not necessarily required because, it is not a rule of law that an accused person cannot be convicted on uncorroborated evidence of the prosecutrix”.
The case of The State v. Ogwudiegwu (1968) NMLR 117 was referred to in Ogunbayo v. State (supra) where it was held that it is not essential, in order to secure a conviction for the offence of rape, to require corroboration of the evidence of the prosecutrix implicating the defendant, but a judge must warn himself of the risk of convicting on the uncorroborated evidence of the prosecutrix.
The case of Iko v. State (2001) 14 NWLR (pt.723) 221 was further referred to in Ogunbayo v. State (supra) where it was held in part of the judgment that it is not the rule of law that a defendant in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. And that the proper

direction the Judge should follow is that as it is not safe to convict on the uncorroborated evidence of the prosecutrix he may warn himself as such and after warning himself appropriately, nevertheless convict the defendant if satisfied with the truth of her evidence.
I am persuaded by the decision in the High Court case of The State v. Balogun (1976) 6 U.I.L.R. (pt.1) 156 at 158 where the Court (Craig, J., later J.S.C., now of blessed memory) referred to the case of Sunmonu v. Police (1957) W.R.N.L.R. 23 to hold that the Court may, after warning itself that it is unsafe to convict on the uncorroborated evidence of the prosecutrix, proceed to convict if it is satisfied as to the truth of her evidence.
I am also, persuaded by the English case of Rex v. Graham 4 Crim App. Rep. 218 where the Judge had warned the jury of the danger of convicting on the prosecutrix story alone but as the Jury had convicted, the Court of Criminal Appeal did not feel obliged or justified in interfering with the decision of the only tribunal of fact (the Jury).
Based on what has fallen from me (supra) in the discourse, the Court below was right to convict the

appellant on the uncorroborated credible evidence of PW1, the prosecutrix, after duly warning itself of the danger of relying and acting on the uncorroborated evidence of PW1, the prosecutrix, which it had believed and accepted.

The PW3 testified under cross-examination in page 34 of the record that she worked as a nurse for over 20 years and performed certain functions a nurse must do when a medical doctor is not present, as she did in this case which reinforced her evidence-in-chief contained in page 33 of the record that she had been practicing as a nurse since 1988 and had in the course of her practice examined many victims of rape like the one in hand. She confirmed penetration of the PW1’s vagina after physical examination of her vagina by inserting her finger inside PW1’s vagina which went through evidencing penetration of the vagina.

The PW3 also confirmed through the physical examination of PW1’s vagina that she discovered it was little bit swollen up but not bleeding vide page 33 of the record. The practical experience of the PW3 to do the physical examination was not challenged under cross-examination. The PW3 reinforced

her practical know-how under cross-examination by adding that her physical examination of the PW1 was thorough.

I believe the PW3 with practical experience in a professional field of nursing for over 20 years in the course of which she had performed physical examination of rape victims should be credited with the knowledge and know-how in the human endeavour of empirical examination of a rape victim. The PW3’s credible and unchallenged evidence had not expressed an opinion but had relied on the physical examination of the PW1 to arrive at

the result that there was penetration of the vagina of PW1. PW3 therefore discovered from empirical angle, penetration of PW1’s vagina, not from the perspective of an expert witness giving opinion evidence and cannot be accused of playing the role of an expert witness in the case.
I am of the considered view that by virtue of the long experience the PW3 had in the physical examination of rape victims she was entitled to give evidence on the nature of what she discovered from the physical examination of the vagina of the PW1 vide by analogy the case of Ara-Nde v. Queen (1962) 1 SCNLR 109 where the Supreme Court held that a dispensary attendant though not an expert in the field which required opinion to be given on the weapon used in causing bodily injuries and, hence could not validly give evidence on it, he could give evidence on what he actually observed, for instance, the nature of the wounds inflicted.
So, the evidence of the PW3 that there was penetration of the vagina of the PW1 which was based on her physical examination of the vagina of the PW1 was rightly accepted by the Court below following Ara-Nde v. Queen (supra).

At any rate and quite apart from relying on the evidence of the PW1 to convict the appellant, the Court below had found corroboration in the evidence of PW3 in the course of its judgment contained in page 45 of the record thus –
“Given the circumstances of this case where there is no other direct evidence apart from that of the victim PW1, I think it will amount to a travesty of justice and a total mockery of the law to completely shut out the evidence of PW3, a qualified practicing nursing professional of over 30 years who by her unchallenged evidence, has been performing such examination for over 20 years, just because she is not a medical doctor, in a situation where it has been made clear that there was no medical doctor available, and when what was required was not a critical or complicated medical procedure such as a surgery which only a surgeon could undertake, but a mere examination of the private part of the victim to confirm whether or not she had been sexually violated. There is no evidence before me that a nurse is not professionally competent or qualified to conduct the kind of examination that PW3 conducted on PW1, neither have I been referred to

any law or judicial authority to that effect. I therefore accept the evidence of the witness that she is qualified and competent to do so. I find her evidence cogent and credible and I believe it. I hold that given the circumstances of this case, it is sufficiently corroborative of the evidence of PW1 that the accused person penetrated her vagina when he inserted his penis into it on the 19th of April, 2012”.

It is visible from the evidence of the PW3 in the record that her empirical effort made her to observe that the vagina of the PW1was penetrated. This piece of empirical evidence married with the credible evidence of the PW1 supplied corroboration of the PW1’s evidence, the prosecutrix, that the appellant had inserted his penis into the vagina of the PW1 on the fateful date.

In light of the fact that the evidence of the PW1 and the PW3 which was believed and accepted by the Court below established that the appellant had sexual intercourse with the PW1, the prosecutrix, who was then below 18 years of age by penetrating the vault of the PW1’s vagina with his penis (against her consent which however, is not one of the ingredients

of the offence charged) the Court below properly and rightly convicted the appellant for the offence of having sexual intercourse with a child contrary to Section 32(1) and (2) of the Child’s Rights Law, Laws of Ogun State, 2006 read with Section 1(2) thereof which defines a child as a person who has not attained the age of eighteen (18) years at the time of the commission of the offence.

credibility of the witnesses in the trial by watching their demeanor and from that vantage position has the privilege of believing and accepting the evidence of the witness in preference to the evidence adduced by the defence. See: Adelumola v. State (1988) 1 NWLR (Pt.73) 683 and Sugh v. State (1988) 2 NWLR (Pt. 77) 475. Any finding of a Court based on facts cannot and will not be interfered with by an appellate Court unless the finding is perverse and is not supported by credible evidence. See: Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1129) 659; Nwokorobia v. Nwogu (2009) 10 NWLR (Pt. 1150) 553.”
Further, there is the illuminating judgment prepared by His Lordship, M. D. Muhammad, J.S.C., where His Lordship stated in pages 503 – 504 of the same law report thus –
“It must be stressed that where, as in this case, the appellant begrudges the evaluation of evidence undertaken by the trial Court and credibility of the witnesses is made an issue, the lower Court and indeed this Court are all in a disadvantaged position except where the trial Court failed or did the evaluation and drew wrong inferences. The trial Court that saw and

assessed the credibility of the witnesses remains best empowered to consider their testimonies and assign probative value to them. See: Odofin v. Mogaji (1978) 4 SC 91 at 93 and Ayorinde & Ors. v. Sogunro & 6 Ors. (2012) 4-5 SC 150; (2012) 11 NWLR (Pt. 1312) 460. In the case at hand, the appellant who failed to show that the trial Court’s findings as affirmed by the lower Court are not borne by the evidence on record must have his appeal dismissed. See Uka v. Irolo (2002) 7 SCNJ 137: (2002) 14 NWLR (Pt. 786) 195 and Atolagbe v. Shorun (1985) 4 SC (Pt. I) 250: (1985) I NWLR (Pt. 2) 360.”
There is in addition the lucid judgment prepared by His Lordship, Augie, J.S.C., where His Lordship stated in page 504 thereof thus –
“This Court is handicapped when an appeal turns on the issue of credibility because it is the trial Court that saw the witnesses, heard them and watched their demeanour in Court that is in the position to believe or disbelieve the witnesses, and its belief can only be questioned on appeal, if it is against the drift of the evidence when considered as a whole. See: Adelumola v. The State (1988) 1 NWLR

(Pt. 73) 683 SC.
There is a rebuttable presumption that its findings on primary fact are correct, and the duty of this Court to interfere with improper findings or correct erroneous conclusions by the trial Court would only come into play were the trial Court had failed to properly examine and evaluate the evidence before the Court. See: Sanni v. The State (1993) 4 NWLR (Pt. 285) 99 and Nwankwoala v. State (2005) 12 NWLR (pt. 940) 637.”
See again the cases of Mamuda v. State (2019) 5 NWLR (pt. 1664) 128 at 141 (alphabet H), Adebanjo v. State (2019) 13 NWLR (pt.1688) 121.
The Court below was therefore, in a vantage position to observe the demeanour of those witnesses and the appellant during their testimonies in the witness-box. Being an issue of the demeanour and credibility of the witnesses and having regard to the fact that the Court below did not reach a perverse decision on the evidence in the case, I am wary to disturb its findings of fact in the circumstances vide Adisa v. State (supra).

It is pertinent to copy below what His Lordship, I. T. Muhammad, J.S.C., (now C.J.N.) said of rape (or any sexual offence)in the case of

Musa v. State (supra) at 238 –
“Rape in our society and indeed in any human society is a grave and serious offence committed by those people who are shameless, merciless and animalistic. I cannot imagine a situation where one will put aside his honour, integrity and humanness to over-power or lure a young girl of tender age to have her carnal knowledge. It is against common sense. It is against humanity and God the Creator will not allow such a bestial behaviour to go unpunished even here in the mundane life. It is the lesser punishment of God that has caught-up with the appellant. I wish it were heavier”.
Let me humbly and gratefully cull from what the Supreme Court expressed on the prevalence and outrageousness of the crime of rape or sexual crimes and its revulsion to a decent society in the case of Fatai v. State (2013) 10 NWLR (pt.1361) 1 at 26, where His Lordship, M. D. Muhammed, J.S.C., bemoaned the sad and unfortunate story of a young lady who was raped by –
“the animal in us, the beastly among us whose morality, sanity and humanity had evaporated”.
Here is an appellant who premeditated to have sexual

intercourse with the prosecutrix, the PW1, a child. He said that much in his statement to the police, Exhibits 2 and 3, and in his sworn evidence. Such callous calculation to ruin a child emotionally and psychologically is to say the least reprehensible.
I feel obliged to add by way of footnote that having sexual intercourse with a child – a girl below 18 years – whether with or without her consent is a heinous crime. It is also called statutory rape. The protection of the child who is considered powerless, vulnerable, mentally tender and psychologically unprepared to appreciate coitus at that formative age is the bastion of the special enactment for the protection of the child under the Child’s Rights Act domesticated by Ogun State as the Child’s Right Law, 2006. The best interest of the child takes precedence under the enactment. Protection from sexual violence and abuse is one of the pillars of the Child’s Rights Law. It should be soberly appreciated that children have human rights which include the right to protection from sexual exploitation, the right to a good name or human dignity and the right to being physically, mentally

and emotionally free from abuse.
Because of their significance as the future generation, children are entitled to be protected and shielded from the danger of pedophile such as the appellant on account of their dependency as children. Pre-pubescent children like the prosecutrix who was between 10 and 11 years when the appellant ravished her leaving her traumatised and psychologically devastated which may remain a permanent torture in her memory demand that the law should always take a severe and dim view of such senseless sexual exploitation of a child yet to reach the age of puberty or a child for that matter (paedophilia).
The incalculable damage and trauma caused to the psyche of the prosecutrix by her ravishment by the appellant shall remain a sorrowful indelible mark on her memory, sense of modesty and feminine dignity such that no quantum or severity of sentence can wipe out the said irreparable damage to the sense of decency of the girlhood of the prosecutrix.
It is on the basis of the above that I endorse the censure made by the Court below in its judgment on punishment in pages 47 – 48 of the record. The punishment of life

imprisonment fixed by law was, in my view, fair desert for the appellant. As any punishment less than life imprisonment would not have been just, particularly, in view of the evidence that the appellant had pre-determined, conceived and/or consciously and deliberately plotted to have sexual intercourse with the prosecutrix, a child of 10 or 11 years, at the material date of the depressing and dastard incident.

In conclusion, I find the appeal unmeritorious and hereby dismiss it and affirm the decision of the Court below and uphold the conviction and sentence of the appellant by the Court below (Akinyemi, J.). I am most respectfully done.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment of my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA. I agree with the Lordship’s reasoning and conclusion that the Appeal has no merit and should be dismissed. I have read the Record of the trial Court carefully and I am persuaded that the finding of the learned trial Judge is correct that the Appellant completed the physical act of rape on the complainant, an 11 year old girl. Appellant’s counsel’s arguments cannot make us ignore the Record and the key

findings of fact of the learned trial Judge relating to the proof of the ingredients of the offence. See Aliyu vs. The State (2019) 11 NWLR Pt. 108 at Pg. 136. The finding on the credibility of witnesses by the learned trial Judge cannot be set aside unless found to be perverse. In the circumstances, there is no factual or legal merit in the complaints of the Appellant against the judgment of the learned trial Judge in charge No: AB/12C/2015 and the conviction and sentence contained therein delivered on 8/3/2017 is hereby affirmed. Appeal Dismissed.

EBIOWEI TOBI, J.C.A.: I have had the opportunity of reading in draft the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA. and I agree with his resolution on all the issues presented in this appeal. I only wish to add that as an appellate Court, this Court will seldom overturn the finding and decision of the lower Court which had the opportunity of evaluating the evidence and observing the demeanor of the witnesses, except where it is shown that the finding and decision is perverse and has occasioned a miscarriage of justice. The apex Court in Edilcon (Nig) Ltd vs. UBA Plc (2017)

LPELR-42342 (SC) had this much to say:
“It has long been established that an appellate Court, generally speaking, should not interfere with findings of fact of trial Courts. The reason is simple. The latter Courts, that is, trial Courts, had the unique opportunity of seeing and hearing the witnesses give evidence. They not only see the witnesses, they, equally, observe all their habits and mannerisms. These Include their demeanour and idiosyncrasies. As a corollary to these peculiar advantages, the Law anticipates that they should utilize all their judicial competence: competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative’ evidence. Proper conclusions which a reasonable Court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise. That is why the law takes the view that a failure in this regard would warrant the interference of the appellate Court, Adeye and Ors v. Adesanya and Ors (2001) 6 NWLR (Pt.708) 1: Olatunde v. Abidogun 18 NWLR (Pt. 746) 712; Adeleke v. Iyanda (2001) 12 NWLR (Pt. 729) 1; Udo v. CRSNC (2001) 14 NWLR (Pt.732)

116; Enilolobo v. Adegbesan (2001) 2 NWLR (Pt.698) 611. This, then, is the foundation for the number of exceptions to this general rule against non interference. For example, one major exception to the said general rule is that, where such findings are in fact inferences from findings properly made, the appellate Court is in as good a position as the trial Court to come to a decision, Ebba v. Ogodo (1984) 1 SCNLR 372: (1984) 4 SC 84, 98-100; Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299, 314: Fatoyinbo v. Williams (1956) SCNLR 274; (1955) 1 FSC 87, Ukatta v Ndinaeze (1997) 4 NWLR (Pt. 499) 251. 263. This explains the prescription that an appellate Court will also interfere with findings of fact where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial Judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious, Atolagbe v. Shorun (1985) LPELR -592 (SC) 31; C-D. Such a perverse finding is a finding of facts which is merely, speculative and is not based on any evidence before the Court, it is an

unreasonable and unacceptable finding because It Is wrong and completely outside the evidence before the trial judge, Iwuoha and Anor v. NIPOST and Anor (2003) LPELR- 1569 (SC) 39-40; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt. 13) 407.”
One more case on this trite principle of law will not do anyone any harm.
In Adebesin vs. State (2014) LPELR-22694 (SC), this trite principle was stated thus:
“…Above is a paraphrase of the finding of the trial Court by the Court below. It Is a finding of fact on expression of belief in the version of the incident given by the respondent and a rejection of the account of the same incident by the appellant. The trial Court enjoys an opportunity denied an appellate Court except when it takes evidence on appeal, of seeing, hearing and watching a witness testify in Court. The trial Court has the opportunity of watching the body language of a witness and when it decides to believe or disbelieve the witness, the appellate Court cannot disturb the conclusion unless it is shown to be perverse. See Okolo v. Uzoka (1978) 4 SC 77; Adomba v. Odiese (1990) 3 WBRN 31 at 42.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See also Okeke & Ors. vs. Agbodike & Ors (1999) LPELR-2434 (SC); Ebeinwe vs. State (2011) LPELR-885 (SC); Oyewole vs. Akande & Anor (2009) LPELR-2879 (SC).
This Court, being an appellate Court will only rise to the call of evaluating the evidence before the lower Court where it finds that the lower Court had not exploited the opportunity of analyzing first hand and evaluating the evidence before it. I have gone through the record of appeal and the evidence presented at the lower Court and I agree with my learned brother that there is no reason whatsoever to overturn the decision of the lower Court; as its findings and decision is not perverse, nor has it occasioned any miscarriage of justice on the Appellant.

In the light of this and for the fuller reason contained in the leading judgment delivered by my learned brother, Joseph Shagbaor lkyegh, JCA, I find that this appeal is unmeritorious. I too uphold the judgment of the lower Court.

Appearances:

Mr. A. S. Akande For Appellant(s)

Mr. A. A. Adewole (Solicitor-General, Ogun State), with him, A. O. Akapo Esq., Principal State Counsel, Ministry of Justice, Ogun State For Respondent(s)

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