ONWUTA v. STATE OF LAGOS (2022)

ONWUTA v. STATE OF LAGOS

(2022)LCN/5079(SC)

In The Supreme Court

On Friday, April 08, 2022

SC.667/2020

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Between

MADUABUCHI ONWUTA APPELANT(S)

And

THE STATE OF LAGOS RESPONDENT(S)

RATIO:

THE BURDEN OF PROOF OF THE GUILT OF AN ACCUSED PERSON

Having set out in summary, the postures albeit divergent of the Appellant as against the Respondent, it is to be reiterated that in seeking to establish the guilt of a defendant, the prosecution may rely on any of the three ways set out hereunder:
1. Confessional statement of the defendant.
2. Direct eyewitness account of a witness or witnesses.
3 Circumstantial evidence.
The above is a follow-up in our criminal justice system as an accused person is presumed innocent until the prosecution proves his guilt. Hence an accused is not expected to prove his innocence before the Court of law, since the duty is on the prosecution to establish the charge or charges against an accused beyond reasonable doubt. See Saminu v State (2019) LPELR- 47622 (SC); Uche Williams v The State (1992) 10 SCNJ 74. PER MARY UKAEGO PETER-ODILI, J.S.C.

THE STANDARD OF PROOF IN CRIMINAL CASES

The notion, proof beyond reasonable doubt is not the same as proof beyond all doubt or all shadow of doubt or proof to the hilt. What proof beyond reasonable doubt rather means is the establishment of the guilt of an accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high level of probability. See Ayinde v State (2019) LPELR-47835 (SC) per Okoro JSC; Nwaturuocha v The State (2011) 6 NWLR (pt. 1242) 170; Ajayi v The State (2013) 9 NWLR (pt.1360) 589; Alabi v The State (1993) 7 NWLR (pt. 307) 511; Nasiru v The State (1999) 2 NWLR (pt. 589) 87; Akalezi v The State (1993) 2 NWLR (pt. 273)1. PER MARY UKAEGO PETER-ODILI, J.S.C.

ELEMENTS OF THE OFFENCE OF DEFILEMENT

In this case in point, the appellant was charged for defilement and it is now settled beyond peradventure that to prove the offence of defilement, the prosecution must establish the essential elements of the offence which my learned brother, Rhodes-Vivour JSC captured effectively in the case of Boniface Adonike v The State (2015) 7 NWLR (pt.1458) 237 at 284 – 285 as follows:-
“Section 218 supra creates the offence of defilement of a girl under the age of 11 years. To succeed, the prosecutions must prove beyond reasonable doubt: (a) that the accused/appellant had sex with the child who was under the age of 11 years. (b) that there was penetration into the vault of the vagina. (c) the evidence of the child must be corroborated. The evidence for defilement is the same as in rape except that for defilement it is immaterial whether the act was done with or without the consent of the child. This is the well laid down position of the law, that a girl under the age of 11 is a child and so is not capable of consenting to sex. The Court would hold that she did not consent even if she did consent. A child cannot consent to sex, that is the position of the law.” PER MARY UKAEGO PETER-ODILI, J.S.C.

ADMISSIBILITY OF UNCONTROVERTED EVIDENCE

A COUNSEL CANNOT LEAD EVIDENCE IN A TRIAL ON BEHALF OF HIS CLIENT

Learned counsel for the Appellant had in the guise of a vocal address led evidence to fill the gap created during the testimony of the Appellant, a route not permitted to be trod. The reason is simple, that a final address no matter how brilliantly couched cannot take the place of evidence as addresses are not so intended. Generally, a counsel, on ethical grounds is not expected to be a counsel in a matter and also a witness as doing that would run contrary to Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007. See Eko JSC in Lawali v State (2019) LPELR – 46405 Pp.7-9; Nwadiaro v SPDC (1990) 5 NWLR (pt.150) 322 at 330; Odubeko v Fowler (1993) 1 NWLR (pt.308)637; Ishola v Ajiboye (1998) 1 NWLR (pt.532)71 at 93; Aro v Aro (2000) 14 WRN 51 at 56. PER MARY UKAEGO PETER-ODILI, J.S.C.

THE DEFENSE OF ALIBI

Indeed the prosecution placed before the trial Court direct and cogent evidence of the witnesses alongside exhibits which point directly to the Appellant as the person who committed the offence.

THE DEFENSE OF ALIBI MUST BE RAISED TIMEOUSLY

The duty on the Defendant to establish his alibi lies in the fact that the burden of proving the fact peculiarly within his knowledge lies on him by dint of Sections 140, 131, & 132 of the Evidence Act, 2011. Additionally, fair hearing, particularly audi alteram partem, demands of him not to take the prosecution by surprise, hence the duty on him, within a reasonable time, to give particulars of his whereabouts. Failure of the Defendant to give particulars of alibi is fatal to the defence; OKAI v THE STATE (1989) 2 S.C.N.J. 183 at 191. PER MARY UKAEGO PETER-ODILI, J.S.C.

WHEN SUCCESSFULLY PLEADED AND ESTABLISHED THE DEFENSE OF ALIBI ENTITLES THE DEFENDANT TO AN ACQUITAL

When validly raised with sufficient particulars of the whereabouts of the Defendant, alibi obligates or makes it incumbent on the prosecution to investigate it with the view of either validating it or debunking it: BALOGUN v. A.G OGUN STATE (supra) alibi, if successfully pleaded and established, is an absolute or complete defence that negatives both the actus reus and the mens rea of the offence. It does entitle the Defendant to acquittal and order of discharge: UKWUNNENYI v. THE STATE (supra). The defence of alibi is not established by mere waving it to the trial Court. It is not sacrosanct Either. This Court in DAGAYYA v. THE STATE (2006) NWLR (Pt.980) 637; (2006) ALL F.W.L.R. (Pt.308) 1212, cited by the Appellant’s counsel had stated the law on alibi clearly thus: the defence of alibi crumbles the moment the prosecution gives superior evidence fixing the Defendant not only to the scene of the crime, but also to his commission of the offence. ” Per EKO, JSC (Pp. 7-9, para- D) underlined for emphasis. PER MARY UKAEGO PETER-ODILI, J.S.C.

PROOF OF CIRCUMSTANTIAL EVIDENCE

THE DUTY OF COURT TO EVALUATE EVIDENCE PLACED BEFORE IT

The law has remained unchanged that it is the primary responsibility of the trial Judge to evaluate evidence placed before the Court as the trial Judge is the one that saw, heard and observed the demeanour of the witnesses. In Mamudav State (2019) LPELR-46343 (SC), it was held by the Supreme Court that the task of evaluating evidence and ascribing probative value to it is the primary duty of the trial Court. The lower Court and indeed this Court, unlike the trial Court, are handicapped when evaluation of evidence, as in this case, is raised and credibility of the witnesses is made an issue. See Nnorodim v Ezeani (2001) 2 SC 145; Onuoha v State (1998) 5 NWLR (pt.548) 118. PER MARY UKAEGO PETER-ODILI, J.S.C.

AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDING OF A LOWER COURT UNLESS INJUSTICE WILL BE OCCASIONED

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of appeal, Lagos Division or lower Court or Court below, delivered on the 27th day of July, 2020, Coram: Joseph Shagbaor Ikyegh JCA, Tijjani Abubakar JCA (as he then was) and Gabriel Omoniyi Kolawole JCA which affirmed the decision of the High Court of Lagos State delivered on the 25th day of January, 2018 per S.S. Ogunsanya J.

The trial High Court had found the Appellant guilty of the one count charge of defilement of a 16 month old baby who was left in his care when the mother went to take a shower which offence is contrary to Section 137 of the Criminal Code Ch. 17 Vol.3, Laws of Lagos State. Appellant was convicted and sentenced to 25 years imprisonment.

BACKGROUND FACTS
The case of the Respondent was presented by PW1 – PW4. Nkiru Ezema (PW1) the victim’s mother, Sgt. Iyabo Olaniyan (PW2) the Investigative Police Officer from Idimu Division of Nigeria Police Force, Dr. John Ousegun Bankole (PW3) and Chidera Ozioko (PW4). The prosecution also tendered Eight (8) Exhibits P1-P8 which were all admitted in evidence. Exhibit P1- Statement of PW1, P2- Diaper stained with Blood, P3- Pant, P4- condom, P5- camera, P6- Medical Report, P7- Syringe, P8- Statement of the Defendant. On the 19th October, 2016, PW1 was recalled for further cross-examination before the defence opened. The Defendant testified as DW1 and did not call any other witness or tender any exhibit.

The case of the Respondent was that on the 26th of November 2013 the survivor was a year and 4 months old and was taken by her mother to the Defendant’s room in his care in order to take her bath. That after she had her bath, that her daughter approached her pointing to her pant saying mummy “see see”. That she checked her daughter’s pant to discover blood in it; she immediately took her daughter to the health centre where she was informed that her daughter had been defiled. She made a report at the Police Station which led to the arrest of the Defendant. That on the day in question it was only herself, her daughter and the defendant that were in the house and no other person than the Defendant could have defiled her daughter.

The medical examination report of the victim admitted as Exhibit P6 revealed that the victim reported in the hospital within 48 hours of the incident with bruises on or around her vagina and a ruptured hymen. The hymen had been broken and bridged.

The medical Doctor testified as PW3 and confirmed that there were multiple bruises which indicated repeated and forceful trauma in the victim’s genitals. PW4- Chidera Oziko testified as per Statement she made in Exhibit P8, while being cross-examined, PW4 stated that she did not see the Defendant touch the victim as she was in the backyard washing clothes but confirmed that she saw PW1 when she came outside with the victim and said somebody had tampered with the victim. She also identified Exhibits P2 and P3.

In his defence, the Appellant testified that PW1 is a sister to him and that on the 26th November, 2013, between the hours of 10.30 and 11am, PW1 prepared breakfast and when he was lying down she brought her baby when she wanted to take her bath. DW1 stated that there were four people in the house; PW1 – Nkiru, his girl-friend, PW4 the house girl and himself. He stated that PW1 told him she was going to the health centre as she saw blood stain in the baby’s pant. He further stated that a day before the incident that PW1 took her baby Favour across the street and his girl-friend noticed that the baby was crying. While being crossed-examined, he confirmed that he was with the baby when PW1 went to take her bath and that she was brought to him, PW1 did not complain that there was blood stain before she dropped the baby. It was when she noticed the blood stain that she woke him up and told him. He confirmed that on the day in question that his girl-friend was not with him in his room that the house girl PW4 was not with him in his room. DW1 further stated that it was only the baby Favour and himself that were in the room and he did not witness the incident that occurred across the street the previous day as he was not at home.

On the 13th January, 2020, the date of hearing, learned counsel for the Appellant, Prof. Bankole Sodipo SAN adopted the brief of argument filed on 16/10/2020 and a reply brief filed on 24/9/2021 and deemed filed on 13/1/2022. He nominated three issues for determination viz:-
1. Whether the Court of Appeal was right in upholding the judgment of the trial Court without making a pronouncement on the failure of the investigating Police Officer to investigate the Appellant’s defence that the crime had been committed by someone else the previous day where the baby was heard crying uncontrollable from their neighbours’ house. This issue is derived from Ground One (1) of the Notice of Appeal.
2. Whether the Court of Appeal was right in holding that the contradictions in prosecution witnesses’ case was not fundamental enough to vitiate the conviction and sentence. Grounds Two (2) and Four (4) of the Notice of Appeal.
3. Whether the Court of Appeal was right in holding that the prosecution witnesses were not confronted with the contradictions in their statements made to the police: Ground Three (3) of the Notice of Appeal.

Mrs. E.R. Agu, Deputy Director, Lagos State Ministry of Justice for the respondent presented two issues for determination, as follows:-
ISSUE 1
Whether the Court of Appeal was right in upholding the judgment of the trial Court without making a pronouncement on the failure of the investigating Police Officer to investigate the Appellant’s defence that the crime had been committed by someone else the previous day where the baby was heard crying uncontrollably from their neighbour’s house. (Ground 1 of the Notice of Appeal.
ISSUE 2
Whether the Court of Appeal was right when it held that the witnesses were not confronted with the contradictions in their statements to the Police and the said contradictions were not fundamental to vitiate the conviction and sentence of the Appellant. (Grounds 2, 3 and 4 of the Notice of Appeal).

I shall utilise the issues crafted by the appellant for ease of reference and together.

ISSUES 1, 2 & 3
1. Whether the Court of Appeal was right in upholding the judgment of the trial Court without making a pronouncement on the failure of the investigating Police officer to investigate the Appellant’s defence that the crime had been committed by someone else the previous day where the baby was heard crying uncontrollably from their neighbour’s house.
2. Whether the Court of Appeal was right in holding that the contradictions in prosecuting witnesses’ case was not fundamental enough to vitiate the conviction and sentence.
3. Whether the Court of Appeal was right in holding that the prosecution witnesses were not confronted with the contradictions in their statements made to the police.

Learned Senior Advocate for the Appellant contended that the two Courts below were wrong to have held that the prosecution proved its case beyond all reasonable doubt when the defence of the Appellant that the offence was committed on the day in issue but ‘the previous day was not investigated and resolved. He cited Orji v. State (2008) 10 NWLR (pt. 1094) 31; Aiguoreghian & Anor v. State (2004) 3 NWLR (pt. 860) 367; Udosen v. State (2007) 4 NWLR (pt. 1023) 125; Adebiyi v. State (2016) LPELR 40008 (SC).

That the two Courts below failed to resolve the contradiction between the evidence of PW1 and PW4 as same related to the defence of the Appellant and therefore fatal to the prosecutions’ case. He referred to Ibeh v State (1997) LPELR- 1389 (SC).

Learned counsel for the Respondent submitted that the result of the medical examination was not controverted or challenged and so it should be taken as accepted by the Appellant and the Court would take it as credible. He cited Oforlete v The State (2000) 7 SCNJ 162 at 179; Magaji v Nigeria Army (2008) 8 NWLR (pt. 1089) 338. He Stated that the Respondent placed before the trial Court cogent and direct evidence, witnesses and exhibits which point directly to the Appellant as the person who committed the offence.

That the Appellant was fixed at the scene of crime and as such the defence of alibi would collapse. He cited Ezekwe v State (2018) LPELR – 44392 (SC).

That the apex Court should not interfere with the concurrent findings of facts of the two Courts below when there is no miscarriage of justice or any perversity. He cited Bello v FRN (2018) LPELR – 44465 (SC).

It is trite law that the duty of Court when evidence is unchallenged and uncontroverted, is to act on it where credible. I refer to the cases of OFORLETE V. THE STATE (2000) 7 SCNJ 162 at 179, 183 and 184 and MAGAJI V. NIGERIA ARMY (2008) 8 NWLR PART 1089 p.338.

The area the appellant contends on is that he could not have been the one who defiled the victim because the victim (a baby) was crying a day before when she was taken to a neighbour across the street. Yet, the Appellant under cross-examination admitted that he was not at home a day before when the baby was crying. The Appellant also admitted during cross-examination that on 26th November, 2013 when the baby was brought to him in the room he was the only person in the room and there was no report of any blood stain.

The argument of Appellant’s Counsel that the baby was wearing diaper as such the Appellant could not have known if there was blood stain, amounts to giving evidence in counsel’s brief. See Lawali v state (2019) LPELR-46405 (SC), where the Court held that “I think I should prefatorily make the point: a bare statement from the Bar by a counsel has no force of legal evidence: ONU OBEKPA v. COMMISSIONER OF POLICE (1980) 1 NCR 113. “I also add that the proof of evidence in criminal proceedings serves the same purpose that pleadings serve in civil proceedings. The facts therein are not evidence unless they are proved or established as legal evidence in the proceedings. The appellant’s counsel had pointed at pages 240-241 of the Record, a portion of the judgment statement made on 25th January, 2010. The statement is at page 25 and of the Record; It was not admitted into the body of evidence in the proceedings. This is the statement the appellant, under cross-examination, at page 77 of the Record emphatically denied he made. The statement, admittedly, raised a defence of alibi if in fact it was made and proved. It suffers three fundamental setbacks. The appellant, the supposed maker, denied his authorship of the statement, including the defence of alibi therein. Secondly, it was being smuggled into the proceedings from the Bar by the appellant’s counsel for the first time at the Court of Appeal vide ‘Appellant’s brief settled by one Musibau Adetunbi, Esq. This is found in paragraph 41 of the said Brief, particularly at page 171 of the Record.”
Learned counsel for the Appellant had in the guise of a vocal address led evidence to fill the gap created during the testimony of the Appellant, a route not permitted to be trod. The reason is simple, that a final address no matter how brilliantly couched cannot take the place of evidence as addresses are not so intended. Generally, a counsel, on ethical grounds is not expected to be a counsel in a matter and also a witness as doing that would run contrary to Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007. See Eko JSC in Lawali v State (2019) LPELR – 46405 Pp.7-9; Nwadiaro v SPDC (1990) 5 NWLR (pt.150) 322 at 330; Odubeko v Fowler (1993) 1 NWLR (pt.308)637; Ishola v Ajiboye (1998) 1 NWLR (pt.532)71 at 93; Aro v Aro (2000) 14 WRN 51 at 56.

The learned counsel for the Appellant took a swipe at the lower Courts not making any pronouncement on the failure of the investigating Police Officer to investigate the defence of the Appellant that the baby was Crying uncontrollably a day before the incident in the neighbour’s house. This slant of defence is illogical as such an uncontrollable cry would not go on beyond the day before the day of the alleged incident in a victim so tender without the mother taking notice and having something done. Also it runs against the grain of the same mother for a child who would have been so violated as evinced in the medical report to give such a child to the Appellant without anything done about the reason for that inconsolable crying.

Again to be said is that the appellant is not correct that the Court below failed to consider the defence embedded in that angle put across by the defence as I shall show anon.

The Court below held at page 223 of the record thus:-
“… Also, whether the victim cried or not is not material to prove the offence in question. What is material is penetration of the private part of the victim which was established beyond reasonable doubt by the evidence of the P.W.3, the medical doctor.
The said unbroken chain of events fixed the appellant with the crime as he was the only person with the victim and had not only the opportunity to commit the offence charged but did indeed commit it from the conclusive, unequivocal and compelling circumstantial evidence. The onus placed on the appellant to offer minimum explanation on how the victim came to be ravished was not discharged by the appellant. The circumstantial evidence in the case therefore left no doubt that the appellant had the first opportunity to commit the crime as rightly held by the Court below vide Omoregie v State (2018) 2 NWLR (pt.1604) 505.”

Indeed the prosecution placed before the trial Court direct and cogent evidence of the witnesses alongside exhibits which point directly to the Appellant as the person who committed the offence.

The defence of the victim being heard crying from neighbour’s house the previous day did not in any way create doubt in the minds of the lower Courts and this is because it is not a defence to the commission of the crime even though the Appellant’s Counsel attempted to equate same as alibi. The word simply means the defendant was somewhere else when the offence was committed but this is not the position in this case as Appellant was fixed at the scene of crime and as such the defence must collapse.
In Ezekwe v State (2018) LPELR-44392 (SC), this apex Court held thus:-
“The plea of alibi runs on some very well-known principles. That is: (1) The Defendant who raises alibi does so to discharge the evidential burden he has to cast doubt on the prosecution’s case, It is discharged on a preponderance of evidence, that is on a balance of probabilities: OZAKI v THE STATE (1990)1 N.W.L.R. (Pt.124) 92 at 110 (2) The Defendant who intends to set up the defence, or who sets up the defence of alibi is enjoined to give sufficient details or particulars of his whereabouts in order to enable the Police or the prosecution investigate it with the view to either affirm it or debunk it: BENSON UKWUNNENYI v. THE STATE (1989)7 S.C. (Pt.1) 64; (1989) 4 N.W.L.R (Pt.114) 131. The duty on the Defendant to establish his alibi lies in the fact that the burden of proving the fact peculiarly within his knowledge lies on him by dint of Sections 140, 131, & 132 of the Evidence Act, 2011. Additionally, fair hearing, particularly audi alteram partem, demands of him not to take the prosecution by surprise, hence the duty on him, within a reasonable time, to give particulars of his whereabouts. Failure of the Defendant to give particulars of alibi is fatal to the defence; OKAI v THE STATE (1989) 2 S.C.N.J. 183 at 191. When validly raised with sufficient particulars of the whereabouts of the Defendant, alibi obligates or makes it incumbent on the prosecution to investigate it with the view of either validating it or debunking it: BALOGUN v. A.G OGUN STATE (supra) alibi, if successfully pleaded and established, is an absolute or complete defence that negatives both the actus reus and the mens rea of the offence. It does entitle the Defendant to acquittal and order of discharge: UKWUNNENYI v. THE STATE (supra). The defence of alibi is not established by mere waving it to the trial Court. It is not sacrosanct Either. This Court in DAGAYYA v. THE STATE (2006) NWLR (Pt.980) 637; (2006) ALL F.W.L.R. (Pt.308) 1212, cited by the Appellant’s counsel had stated the law on alibi clearly thus: the defence of alibi crumbles the moment the prosecution gives superior evidence fixing the Defendant not only to the scene of the crime, but also to his commission of the offence. ” Per EKO, JSC (Pp. 7-9, para- D) underlined for emphasis.

The learned counsel for the appellant has argued that there were contradictions in the circumstantial evidence put up by the prosecution.

I posit with humility that circumstantial evidence may be even more powerful than direct evidence in certain cases as held in State v. Sunday (2019) LPELR-46943 (SC), that it is settled that circumstantial evidence requires an inference to be made to establish a fact, and in certain cases, circumstantial evidence may be even more powerful than direct evidence, which proves or disproves a fact directly – see Lori & Anor V. State (1980) NSCC (Vol. 12) 269, wherein this Court per Nnamani, JSC observed as follows:
“Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances, which … is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction … 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 on any reasonable hypotheses than that of his guilt.”

In the case at hand, the victim was in the care of Appellant and by the evidence before the Court, Appellant was the only person in the room with the victim as the girl-friend went away to buy “garri” and by undisputed evidence of PW1, the distance where the girl-friend went to buy “garri” is about a 30 minute walk. Appellant was the only male at home and from the evidence of PW1, she confirmed from the Appellant that there was no blade or sharp object with which the victim could have cut herself. By the evidence of PW3, the rupture of the hymen could be caused by sharp object or penis and in this instance, there was no sharp object and this only left the Appellant as the only male in the house. The law is well settled that circumstantial evidence must point directly to the accused as the person who committed the offence.

I am guided by that settled position of law that before any contradiction can be established between the evidence of a witness and the previous statement made by the witness, the specific portion of the previous statement made by the witness, sought to contradict the witness must be brought to the attention of the witness for his explanation. See Olaoye v State (2018) 8 NWLR (pt. 1621) 281 at 309.

I am at one with learned counsel for the Respondent that there is no part of the Record where prosecution witnesses were confronted with the perceived contradictions. Clearly, whatever contradiction remotely seen did not remove the Appellant from the scene of crime or disprove the fact that the victim was defiled and Appellant fixed therewith.

For contradiction to affect the case of the prosecution, it must be substantial and go to the root of the matter. This Court has eloquently stated the position regarding contradictions in various dicta. In Ifedayo v State (2018) LPELR-44374 (SC), it was held that “the position of the law, on the issue of contradictions in the evidence of witnesses that testify in Court is well-settled; it is not every minor contradiction in evidence that matters. For a trial Court to disbelieve a witness for the said reason, the contradiction in his evidence must be on a material point – See Kalu V. The State (1988) 4 NWLR (PT.90) 503 SC. And Ochemaje V. State (2008) 15 NWLR (Pt. 1109) 57, where this Court per Tobi JSC, clearly explained that –
“Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not – mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions which are not material or substantial will go to no issue. The main interest of the Court is that the witnesses are in union or unison as to the happening of the event but gave different versions in respect of the peripheral surrounding the event.”

The law has remained unchanged that it is the primary responsibility of the trial Judge to evaluate evidence placed before the Court as the trial Judge is the one that saw, heard and observed the demeanour of the witnesses. In Mamudav State (2019) LPELR-46343 (SC), it was held by the Supreme Court that the task of evaluating evidence and ascribing probative value to it is the primary duty of the trial Court. The lower Court and indeed this Court, unlike the trial Court, are handicapped when evaluation of evidence, as in this case, is raised and credibility of the witnesses is made an issue. See Nnorodim v Ezeani (2001) 2 SC 145; Onuoha v State (1998) 5 NWLR (pt.548) 118.

It is having the above position of the law in its view that propelled the lower Court to hold at page 216 of the Record thus:-
“The evidence of these witnesses could not have been impugned in the manner and course pursued by the appellant in the circumstance. The Court below was therefore right to rely on their evidence.
In the insight case, the alleged contradictions were only discrepancy as to details, not on the substance or marrow of the case, and left the evidence of the witnesses on the proof of the elements of the offence charged unscathed.”

The position of this apex Court is that Appellate Court will not interfere with finding of facts by lower Court especially the concurring finding of fact by the lower Court and trial Court except the finding occasioned miscarriage of justice or is perverse. In aid on this position is the decision of this Honourable Court in Bello v. FRN (2018) LPELR-44465 (SC), where it was held thus;
“As I had earlier alluded to the concurrent findings and conclusion of the two Courts below, the question that I must answer at this level is whether there is justification upon which I can interfere with those findings of fact. This question which must be answered advisedly bearing in mind the general principle that where there are concurrent findings of fact by the trial Court and the Court below such as in the instant case, the Supreme Court is not likely to disturb such findings which it can only do where those findings are perverse or a miscarriage of justice had taken place whereby this Court can take the stand of intervention or interference with the said findings. A reference to earlier decided cases of this Court along those lines would clear the point. See Ude v Chimbo (1998) 12 NWLR (Pt.577) 169 at 186-187 and 194; Woluchem v Gudi (1981) 5 SC 291. For effect see the case of: Adegoke v Adibi (1992) 5 NWLR(pt. 242) 410 at 427 where this Court held per Wali JSC that: “where the trial Court has failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse, as in this case, the Court of Appeal has a duty by way of rehearing, to evaluate as if it were the trial Court the evidence that has been adduced… The Court of Appeal should not shrink from the task of such evaluation or i.e. inhibited therefrom just because it is an appellate Court.” (Emphasis Supplied) “In the case of Nneji v Chukwu (1996) 10 NWLR (pt.478) 269 at 278 this Court also held: “A Court of Appeal does not easily disturb the findings of facts of a trial judge who had the singular opportunity of listening to the witnesses and watching them perform. It is settled law, however, that such findings of facts or inferences from time to time may be questioned in certain circumstances.” (Emphasis supplied). In the case of Agbomeji v Bakare (199…) 8 NWLR (Pt.564)1 at 19, this Court also finds the same thing when it held thus: “True enough, this Court does not readily interfere with concurrent findings of Courts below. See Kale v Coker (1982) 12 SC 252; Lokoyi v Olojo (1983) 2 SCNLR 127; Ojomu v Ajao (1983) 2 SCNLR 156; Ibrahim v Shagari (1983) 2 SCNLR 176. As concurrent finding of fact under consideration appears not to flow logically from the other findings made by the trial judge. I must hold that finding is perverse and I must consequently set it aside.” Applying those principles to the case in hand and answering the poser whether in the light of those concurrent findings this Court can interfere, my answer is that those authorities espousing the position of the law on what an appellate Court faced with concurrent findings must be guided but do not aid the appellant rather they go to solidify the stance of the respondent as this Court has no business interfering since those findings are borne out of the record being overwhelming which compared with the feeble defence laid out by the appellant leaves the Court no option than to hold that the prosecution effectively proved its case on the three count charge beyond reasonable doubt. See Ben v The State (2006) 4 FWLR (Pt.345) 7507 (SC); Onwuama v Ezeokoli (2002) 2 SCNJ 271; Amusa v The State (2003) 1 SCNJ 518; Ubani& 2 Ors v The State (2003) 18 NWLR (pt.851) 247; Akinkugbe v Ewulum Holdings Nigeria Ltd (2008) 12 NWLR (Pt.1098) 375 at 398-399.” Per MARY PETER-ODILI, J.S.C (Pp.4-37).

The Appellant has not been able to surmount the huddle that would impel this Court to interfere with the concurrent findings of fact of the two Courts below and worse still did nothing to produce a reasonable doubt to impugn the rock solid evidence put up by the prosecution in the discharge of the burden laid upon it by law in proof of this crime so vile and repugnant to all senses know to humanity.

I shall make the point that it is bad enough that the victim is so closely related by blood to the Appellant which the victim happens to be his niece and worse still and tingling to the ears that the child, an infant, babe at arms of 16 months of age was so violated. The Appellant in my view was let off lightly with a sentence of 25 years in the face of the fact that such a person with behaviour below that known only with the beasts should have to co-habit in a normal society after the term. However, there is nothing I can do with the term of sentence.
Having said that, I see no merit whatsoever in this appeal in which I dismiss. I affirm the decision of the Court of Appeal which affirmed the conviction and sentence of the trial High Court.
Appeal Dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, MARY UKAEGO PETER-ODILI, JSC, just delivered. I agree that there is no merit in the appeal and it deserves to be dismissed.

It is settled law that in establishing the guilt of an accused person beyond reasonable doubt, the prosecution may use one or more of the following methods:
(1) Direct evidence of eye witness; or
(2) Confessional statement of an accused person or
(3) Circumstantial evidence.
See: Okashetu vs The State (2016) 14 NWLR (Pt.1534) 126; Oguonzee vs The State (1998) LRCN 3512; Berende vs FRN (2021) LPELR – 5499 (SC) @ 20 A- C.

In the instant case, the prosecution relied on circumstantial evidence, to the extent that the infant who was found to have been defiled was left with the Appellant while her mother took a shower and the Appellant was alone in the room with the baby. After having her bath, the child approached her mother pointing to her pants urging her to have a look.

Upon examination, the underwear was found to be stained with blood. A medical examination carried out by PW3 within 48 hours of the incident revealed that the child had bruises around her vagina and her hymen was ruptured. In the medical report, Exhibit P6, PW3 found that the multiple bruises indicated repeated and forceful trauma to the victim’s genitals.

The undisputed evidence before the trial Court was that at the time material to the charge, the Appellant was alone in his room with the victim. Furthermore, there was no complaint or agitation from the victim before she was left with the Appellant. There was no supervening incident between the time PW1 left the baby with the Appellant and the time she discovered blood in the baby’s underwear.

In Lori & Anor. vs The State (1980) NSCC (Vol. 12) 269, His Lordship, Nnamani, JSC explained what amounts to circumstantial evidence and when it would be sufficient to ground a conviction thus:
“It is conceded that circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a preposition with the accuracy of mathematics. It is no derogation of evidence to say circumstantial. 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 a murderer. The facts must be incompatible with the innocence of the accused and incapable of any other reasonable hypothesis than of his guilt.”
See also: Ukorah vs The State(1977) NSCC (vol. 17) 218; Umaru Sani Vs The State (2017) LPELR – 43475 (SC) @ 16-19 E – per Augie, JSC.

I am in complete agreement with my learned brother, MARY UKAEGO PETER-ODILI, JSC that the circumstantial evidence in this case leads irresistibly to the guilt of the accused.

The appellant raised a rather feeble defence that the inference that he committed the offence was wrongly drawn because the 16-month-old baby was heard crying for an extended period of time while at a neighbour’s house across the road the previous day. The appellant admitted under cross examination that he was not at home the previous day. His evidence that the baby cried for a long time the previous day is therefore hearsay and of no evidential value. Furthermore, it is not unusual for a 16-month old baby to cry for an extended period of time. What is established beyond reasonable doubt is that it was after she had been left in the Appellant’s custody that she drew her mother’s attention to her private parts and blood stains found, which were confirmed by medical examination to be a result of forceful trauma to her genital area.

I entertain no doubt whatsoever that the Appellant committed the offence with which he was charged. I am not persuaded to interfere with the concurrent findings of the two lower Courts.

The appeal is hereby dismissed. The judgment of the lower Court is affirmed.
Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: The facts of this case are that on 26th November, 2013, the PW1 who is a sister to the Appellant left her 16-month old baby in the care of the Appellant to take her bath. On leaving ‘the bathroom, she met her baby at the door to her house pointing to her pant and saying mummy “see see”. That she removed the pant to see what her baby was trying to show her only to discover blood stains on her baby’s genital. She then rushed the child to the hospital where examination revealed that she had bruises around her vagina and a broken hymen which might have been caused by a sharp object such as a penis. Upon his arrest, the Appellant put up a defence that he was with his girlfriend at the time and that the baby must have been defiled a day before the event when she was found crying uncontrollably in a neighbor’s house.

The law is trite that where there is no direct eyewitness evidence as to the commission of a crime, the prosecution may rely on circumstantial evidence to prove its case and proof of circumstantial evidence is sufficient to secure conviction. See Mohammed vs. State(2007) 11 NWLR (Pt. -1045)303; Adeniji vs. State (2001)13 NWLR (Pt.730)375: Ikomi vs. State (1986) 3 NWLR (Pt. 28) 340.

However, the law is that for the Court to rely on circumstantial evidence to ground conviction, the circumstantial evidence must be compelling and unequivocally point to only one rational conclusion that the offence already established as having been committed was indeed committed by the accused person. Mere suspicion is deficient and would lead to an acquittal. See Adesina Vs. State (2012)14 NWLR (Pt.1321)429; Chukwu Vs. State (2013) 4 NWLR (Pt.1343) 1.

In the instant case, the Appellant admitted during Cross- examination that he was the only person with the victim in the room as his girlfriend had gone out to buy garri. He also admitted that there was no blood stains on the victim as at the time she was brought to him. The circumstantial evidence in this case points irresistibly to the fact that the Appellant had the opportunity of committing the offence and he but no other person committed the offence.

The sum total of what I have endeavoured to say above is that the appeal of this Appellant has no merit and it is hereby dismissed. I affirm the judgment of the Court below delivered on 27th July, 2020.
Appeal Dismissed.

ABDU ABOKI, J.S.C.: I had the advantage of a preview of the lead judgment which was prepared by my learned brother MARY UKAEGO PETER-ODILI, JSC. I am in agreement with the said judgment which dealt with the issues for determination of the appeal beautifully that I have nothing more to add.

The appeal is devoid of any merit, hence, deserves to be dismissed. Accordingly, it is dismissed by me.
The judgment of the Court of Appeal, which affirmed the conviction and sentence of the Appellant by the trial Court, is further affirmed by me.
Appeal Dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Having had the privilege of reading, before now, the judgment just delivered by my learned brother, the Hon. Justice M.U. Peter-Odili, JSC, I cannot but agree with the reasoning reached therein to the conclusive effect that the instant appeal is grossly devoid of merits.
Hence, I too hereby, without much ado, dismiss the appeal for being unmeritorious.
Appeal dismissed.

Appearances:

Prof. Bankole Sodipo, SAN, with him, Daniel Ozoma For Appellant(s)

E.R. Agu Asst. Director Lagos MOJ, with him, F. Pius- Anyiador, Asst- Chief State Counsel and O.O. Osunsanya, Asst. Chief State Counsel For Respondent(s)

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