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THOMPSON v. STATE (2020)

THOMPSON v. STATE

(2020)LCN/15600(CA)

In The Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/C/154C/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

PETER DOMINIC THOMPSON (ALIAS AWAHAOBONG) APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

Meaning, Feature, Requirement and principle of Corroboration

Corroboration of a witness’s testimony must be afforded by means of independent evidence which implicates the accused by connecting or tending to connect him in a material respect with the offence charged.
See R. VS. BASKER VILLE [1916] 2 KB 658 12 Cr. APP Rep. 81 CCA; R. VS. JENKINS (1845) 1 Cox. CC 177; DPP VS. HESTER [1973] AC 296 at 325, 57 Cr. APP Rep. 212 at 240 HL. per Lord Diplock.
It is not enough that the evidence confirms in some material particular that the offence was committed, if it does not also point to the accused as the person who committed it. For example, on a charge of rape, independent evidence that intercourse took place does not confirm in a material particular either that rape was committed or that the accused committed it. See JAMES VS. R. (1970) 55 Cr. App Rep. 299 at 303, PC per Viscount Dilhorne.
The content of corroborative evidence will necessarily vary according to the particular circumstances of the offence alleged; but corroboration bears the same general meaning, whether required by statute or as a matter of practice. R. VS. BASKER VILLE (supra).

Meanwhile, the word ‘corroboration’ is not a technical term, it means by itself no more than evidence tending to confirm, support or strengthen other evidence. DPP VS. KILBOURNE [1973] AC 729 at 758, 57 Cr. APP. Rep. 381 at 420, HL per Lord Simon; DPP VS. HESTER [1973] AC 296 at 315, 57 Cr. APP Rep. 212 at 229, HL per Lord Morris of Borth – y- Gest at 321 and at 288 per Lord Pearson and at 323, 325 and at 242 – 244 per Lord Diplock.
Also, corroboration need not consist of direct evidence that the accused committed the offence. In other words, circumstantial evidence is sufficient for corroboration see R. VS. JONES (1939) 27 Cr. APP. Rep. 33 CCA. Finally, the requirement of independence means that the complaint of the alleged victim of a sexual offence cannot corroborate that person’s testimony, though the physical condition of the victim may do. See R. VS. WHITE HEAD [1929] 1 KB 99 21 Cr. App. Rep. 23, CCA; R. VS. WILLOUGHBY (1988) 88 Cr. APP. Rep. 91 CA; R. VS. SUDDENS [1964] Crim – L.R. 606, CA. See generally, Halsbury’s Laws of England 4th Edition Re issue Vol. 11 (2) Butterworths, London (1990) Para 1141 page 963. MOJEED ADEKUNLE OWOADE, J.C.A.

Principle of corroboration

The law is settled that corroboration in respect of the offence of defilement and or rape is evidence which tends to show that the story of the prosecutrix that the accused committed the crime is true. Corroboration in general need not consist of direct evidence that the accused committed the offence charged, nor need it amount to confirmation of the whole account given by the witness/prosecutrix. It must however, corroborate the said evidence in some respect’s material to the charge in question. Also, the corroborative evidence must in itself be completely credible evidence. EZIGBO V STATE (2012) 16 NWLR (prt. 1326) 318, SAMBO V STATE (1993) 6 NWLR (prt. 300) 399 and ANYIGOR V STATE (2019) 14 NWLR (prt. 1691) 45 at 58. MUHAMMED LAWAL SHUAIBU, J.C.A.

 

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):This is an appeal against the judgment of Hon. Justice Ezekiel O. Enang sitting at the Abak Division of the High Court of Akwa Ibom State.

​The Appellant was charged on a one count charge for the offence of defilement under Section 219 (1) of the Criminal Code Cap. 38 vol. 2 Laws of Akwa Ibom State 2000.

The case of the prosecution was that on the 25th of August, 2014 at Itung Achan village, Ika Local Government, Akwa Ibom State, the Appellant defiled one Emediong Ime Joseph (PW1) female of 9 years old by forcefully having carnal knowledge of her.

The prosecution called four witnesses to wit: Emediong Ime Joseph (PW1) Akam Ime Joseph (PW2) the mother of the victim PW2. Inspector Okon Sunday (PW3) and Dr. Anthony Luke Umanah (PW4). In addition, the prosecution tendered two Exhibits which were admitted and marked Exhibit “A” and “B” which respectively are the medical report of the victim and the extra – judicial statement of the Appellant.

​The Appellant testified in his own defence as DW1 and called his sister as DW2. The Appellant tendered no Exhibit.

The learned trial judge brought out the ingredients of the offence of defilement through the case of BONIFACE ADONIKE VS. THE STATE (2015) 7 NWLR (pt. 1458) 237 and proceeded to match the ingredients of the offence with the facts of the case. Thus, first at page 124 of the Records, that:
On the first ingredient above PW1 stated that on the date of the incident she went to take her bath. That after taking her bath she went into the house to clean her body and the accused followed her used his hands and removed his penis and put inside her vagina and had sex with her and blood came out from her vagina. She stated that when she wanted to shout the accused held her mouth and prevented her from shouting. Thus, there is proof that the accused had sex with PW1. The next ingredient is the age of the victim. It must be proved that the victim was under the age of 11 (eleven) years. Although PW4 and PW2 did not state the age of the PW1, PW3 in her evidence in Chief stated that PW1 was aged 9 years at the time the complaint of her defilement was made. This piece of evidence was not challenged and I believed it. Thus, it has been proved that the accused had sex with PW1 who was under the age of eleven (11) years.
The next ingredient of the offence is penetration. It must be proved that there was penetration of the vagina no matter how slight. In all sexual offence there must be prove of penetration of the vagina. See IKO VS. THE STATE (2001) 7 SCNJ 391. In the instant case PW1 stated that the accused removed his penis and put in her vagina and blood oozed out from her vagina. Thus, there is also proof of penetration.
Second, at pages 124 – 125 of the Records, the learned trial judge continued Thus,:
Another ingredient of the offence of defilement is that the evidence of the prosecutrix must be corroborated. Section 219 (4) of the Criminal Code of Akwa Ibom State 2000 provides that a person cannot be convicted of the offence of defilement, upon the uncorroborated testimony of one witness. Corroboration has been held not to be a technical term of art, and means no more than evidence tending to confirm support and strengthen other evidence sought to be corroborated. See DIRECTOR OF PUBLIC PROSECUTION VS. KILBORNE (1973) AC 729. In the instant case PW1 stated that when the accused had sex with her blood oozed out from her vagina. PW2 stated that when she came back from church, she saw the PW1 shivering and warming herself from fire and narrated what the accused person did to her. She stated that when she removed PW1’s pant she saw blood stains on it and she warmed water and bath her and also bought her drug to relieve her shivering.
The medical report (Exhibit “A”) shows that the hymen of PW1 was torn with blood on it. I hold that the medical report which shows that PW1’s hymen was torn with blood and the evidence of PW2 that when she removed PW1’s pant she saw blood stains corroborates the child’s testimony (PW1) that the accused had sex with her forcefully and blood came out from her vagina in the process. Thus, evidence of PW1 has been corroborated. The law is that the testimony of a child can be corroborated by medical evidence. See the case of ADONIKE VS. THE STATE (supra).

​He found the defence of alibi raised by the Appellant as an afterthought and concluded that the prosecution has proved beyond reasonable doubt that the accused person (Appellant) defiled Emediong Ime Joseph, a child of 9 (nine) years old and I hereby find him guilty as charged and convict him.

Dissatisfied with the judgment the Appellant filed a Notice of Appeal containing 3 (three) grounds of Appeal in this Court on 18th April 2017.

Appellant’s brief of argument filed on 5th February, 2020 was deemed filed on 3rd June, 2020. It is settled by Chief Victor Iyanam, Esq.

Respondent’s brief of Argument of 2nd October, 2020 was deemed filed on 5th October, 2020. It is settled by UwemedimoNwoko, Esq; Hon. Attorney – General, Akwa Ibom State.

Learned counsel for the Appellant nominated a sole issue for the determination of the appeal. It is:“Whether the judgment of the learned trial judge is not liable to be set aside for want of corroboration in the evidence led by the prosecution leading to the conviction of the Appellant on the Charge of Defilement?”

Learned counsel for the Respondent adopted the sole issue nominated by the Appellant.

​On the said sole issue Learned Counsel for the Appellant submitted that the trial judge in delivering his judgment rightly enumerated the ingredients to be proved by the prosecution in a charge of defilement as required under Section 219 (1) of the Criminal Code, Cap 38 Vol. 2 Laws of Akwa Ibom State of Nigeria 2000 when he stated on page 123 of the Record of Appeal that: “The law is trite that to succeed in a case of defilement, the prosecution must prove beyond reasonable doubt the following ingredients:
a)That the accused had sex with the child who was under the age of 11 years.
b)That there was penetration into the vault of the vagina, and
c)That the evidence of the child must be corroborated. (See BONIFACE ADONIKE VS. THE STATE (2015) 7 NWLR (pt. 1458) 237.”

​The trial judge, said counsel in his evaluation of the Medical Report (Exhibit A) on page 125 of the Record of Appeal held: “The Medical Report (Exhibit “A”) shows that the hymen of PW1 was torn with blood on it. I hold that the medical report which shows that PW1’s hymen was torn with blood and the evidence of PW2 that when she removed PW1’s pant, she saw blood stains corroborates the child’s testimony (PW1) that the accused had sex with her forcefully and the blood came out from her vagina in the process. Thus, evidence of PW1 has been corroborated. The law is that the testimony of a child can be corroborated by medical evidence.”

He referred to the cases of EGBUJI VS. THE STATE (2014) LPELR 24092 (CA); IKO VS. THE STATE (2001) 14 NWLR (pt. 732) 221 and submitted that the evidence on record does not support the learned trial Court’s evaluation and finding on corroboration. That in the case of IKO VS. THE STATE (supra) the Supreme Court held that in any evidence offered as corroboration, two conditions must be satisfied, viz:
i. That the offence was committed and
ii.The accused is implicated by it.
Also, that in the case of OGUNBAYO VS. THE STATE (2007) 8 NWLR (pt. 1035) P. 157 the Supreme Court held that: “Evidence in corroboration must be an independent testimony, direct or circumstantial, which confirms in some material particular, not only that an offence has been committed but that the accused committed the offence ….”

​Learned counsel for the Appellant argued that there is no corroborating evidence on record linking the Appellant with the defilement as charged. That the corroborative evidence must be one, which, inter alia connects the accused with the offence charged or otherwise implicate the accused in the commission of the offence charged.

Appellant’s counsel further referred to the recent case of THE STATE VS. IBRAHIM YAHAYA (2019) LPELR – SC 493/2016 (PP. 31 -32 para E – C) where the Supreme Court held that: “On what corroboration means, one can posit with humility that it entails the acts of supporting or strengthening a statement of a witness by fresh evidence of another witness. It does not mean that the evidence corroborating must use the same exact words, unless the maker involves some arithmetic. The test to be applied to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which connects the accused or tending to connect him to the crime. The corroborative evidence required need not be direct evidence linking the accused to the commission of the offence.”

​Learned counsel for the Appellant submitted that the Court below at page 125 of the Record found that Exhibit A, the Medical Report confirmed that the hymen of PW1 was torn with blood and the evidence of PW2 that when she removed PW1’s pant, she saw blood stains provided sufficient corroboration of PW1’s testimony. Appellant’s counsel opined that this finding is perverse. According to him the period in between when the alleged offence was committed and the medical examination was eight days and that the test report by the Medical examiner shows nothing to link the Appellant to any crime.

He submitted that Exhibit ‘A’ failed to state that it was in fact the Appellant that defiled PW1 and also that PW2’s testimony that she saw blood stains after removing PW1’s pant does not prove that an offence had been committed by the Appellant.

Appellant’s counsel emphasized that PW4 in his evidence stated that PW1 was brought to his hospital on the 3rd day of September, 2014 which according to counsel was 9 days after the alleged offence took place. And, also that PW2’s act of washing PW1’s vagina after the offence allegedly took place tampered with the evidence and rendered the Medical Report (Exhibit A) and PW4’s testimony unreliable to sustain the conviction of the Appellant.

​He concluded that by failing to adduce supporting evidence to strengthen PW1’s testimony and link the Appellant to the commission of the offence, the prosecution had failed to prove the guilt of the Appellant beyond reasonable doubt as required under Section 135 of the Evidence Act 2011.

He urged that the judgment of the Court below be set aside and that a verdict of discharge and acquittal be entered for the Appellant.

Learned counsel for the Respondent on the other and took the view on the sole issue that the evidence of the victim in this case was/is sufficiently corroborated and the Court below was right to convict the Appellant. He referred to the case of STATE VS. YAHAYA (2019) LPELR – 47611 (SC) to say that corroboration is the act of strengthening a statement of a witness by fresh evidence of another witness. The witness corroborating must not use the exact words and the corroborative evidence need not be direct evidence linking the accused person to the commission of the offence. It is enough to be circumstantial.

Learned counsel for the Respondent also referred to the case of IKO VS. STATE (2001) 14 NWLR (pt. 732) 221 where it was held inter alia that:“— in any evidence offered as corroboration, two conditions must exist: i.e. the offence was committed and that the accused was implicated by it.”

He submitted that the above two conditions of corroboration were fulfilled in this case as the Appellant was unmistakably implicated as the person who defiled PW1 on 20th August, 2014.

Respondent’s counsel noted relying on the case of MOHAMMED VS. KANO STATE (2018) LPELR – 43913 (Sc) that corroboration of evidence of a complainant or prosecutrix, while desirable, is not a mandatory requirement of the law.

However, that there was evidence of corroboration of evidence of PW1. He submitted that corroboration in this case came by way of the evidence of PW2 (the mother of PW1) who saw blood stains on the pant of PW1. That further corroboration came in evidence through an unassailed and unimpeached evidence of Dr. Anthony Umanah and the medical report he authored Exhibit A.

​He added that PW4 stated as follows under cross examination
“I carried out medical examination on Emediong Ime Joseph… I arrived at my report after the medical history and medical examination … It is not possible for a child or a lady to be defiled without sexual intercourse… The whitish discharge from PW1’s private part means that there are some activities going on in the vagina or had taken place… My medical report is the summary of the report and the details are in the folder in the hospital.”
He submitted that the medical report Exhibit A stated inter alia
“— Swollen, tender abrasive introitus with hymen torn with blood.”

Learned counsel for the Respondent submitted further that the Appellant and his counsel had ample opportunity to cross examine PW1, PW2, PW3 and PW4 on the veracity of their statements but their pieces of evidence were not challenged nor contradicted. That it is now too late to start questioning or attempting to impeach Exhibit A tendered by PW4. He referred to the cases of STATE VS. MASIGA (2017) LPELR – 43474 (SC) and LUCKY VS. STATE (2016) LPELR – 40541 (SC) that medical evidence has established some injury to the vagina.

​He submitted that contrary to the suggestion of the learned counsel for the Appellant, it is not the place of a medical report to show who committed an offence but rather show that an offence was committed. And, that in any event that nothing stops conviction for sexual offence even in the absence of medical report. He referred to the case of POPOOLA VS. STATE (2013) LPELR – 20973 (SC) and said that the learned trial judge was right when he held at page 124 of the Records that:
Learned counsel for the Respondent submitted that the evidence of PW1 was corroborated by the evidence of PW2 and Exhibit A and that the trial judge was right in convicting the Appellant.

He concluded that “proof beyond reasonable doubt” in a criminal trial does not mean “proof beyond any shadow of doubt” or “proof beyond all iota of doubt.” He referred to the cases of AKINYEMI VS. THE STATE (1999) 6 NWLR (pt. 607) 449; BENSON OBIAKOR VS. THE STATE (2002) SCM 117 and urged us to uphold the judgment of the trial Court.

DETERMINATION OF THE SOLE ISSUE
The sole issue in this appeal has brought to fore the nature and meaning of corroboration in criminal trials.

​Corroboration of a witness’s testimony must be afforded by means of independent evidence which implicates the accused by connecting or tending to connect him in a material respect with the offence charged.
See R. VS. BASKER VILLE [1916] 2 KB 658 12 Cr. APP Rep. 81 CCA; R. VS. JENKINS (1845) 1 Cox. CC 177; DPP VS. HESTER [1973] AC 296 at 325, 57 Cr. APP Rep. 212 at 240 HL. per Lord Diplock.
It is not enough that the evidence confirms in some material particular that the offence was committed, if it does not also point to the accused as the person who committed it. For example, on a charge of rape, independent evidence that intercourse took place does not confirm in a material particular either that rape was committed or that the accused committed it. See JAMES VS. R. (1970) 55 Cr. App Rep. 299 at 303, PC per Viscount Dilhorne.
The content of corroborative evidence will necessarily vary according to the particular circumstances of the offence alleged; but corroboration bears the same general meaning, whether required by statute or as a matter of practice. R. VS. BASKER VILLE (supra).
​Meanwhile, the word ‘corroboration’ is not a technical term, it means by itself no more than evidence tending to confirm, support or strengthen other evidence. DPP VS. KILBOURNE [1973] AC 729 at 758, 57 Cr. APP. Rep. 381 at 420, HL per Lord Simon; DPP VS. HESTER [1973] AC 296 at 315, 57 Cr. APP Rep. 212 at 229, HL per Lord Morris of Borth – y- Gest at 321 and at 288 per Lord Pearson and at 323, 325 and at 242 – 244 per Lord Diplock.
Also, corroboration need not consist of direct evidence that the accused committed the offence. In other words, circumstantial evidence is sufficient for corroboration see R. VS. JONES (1939) 27 Cr. APP. Rep. 33 CCA. Finally, the requirement of independence means that the complaint of the alleged victim of a sexual offence cannot corroborate that person’s testimony, though the physical condition of the victim may do. See R. VS. WHITE HEAD [1929] 1 KB 99 21 Cr. App. Rep. 23, CCA; R. VS. WILLOUGHBY (1988) 88 Cr. APP. Rep. 91 CA; R. VS. SUDDENS [1964] Crim – L.R. 606, CA. See generally, Halsbury’s Laws of England 4th Edition Re issue Vol. 11 (2) Butterworths, London (1990) Para 1141 page 963. ​In the instant case, learned counsel for the Appellant seems misled by the feature or requirement of “corroboration” that:
“It is not enough that the evidence confirms in some material particular that the offence was committed, if it does not also point to the accused as the person who committed it“
Learned counsel for the Appellant took this requirement quite literally and imagines that every piece of corroborative evidence must answer to the main evidence almost by mentioning the name of the accused or to repeat what a prosecutrix had said that the accused did to her. This is not so. This requirement emphasises the relevance of the evidence as linking or connecting the accused in a material particular to the change. And not as suggested by the Appellant’s counsel that a medical report should mention the accused. No.
​Here again, the evidence of the victim, prosecutrix, PW1 has covered the ingredients of the offence of defilement by relating what the Appellant did to her. PW2 sufficiently corroborated the evidence of PW1, by describing the blood stains she saw when she examined her daughter PW1’s pant soon after the incident. PW4 further corroborated PW1 and PW2 that on clinical examination, “there were abrasives injuries on the vulva of PW1, lacerations and whitish discharge from the vagina and the hymen of PW1 was gone. The material ingredient of the offence of defilement supported and strengthened by the evidence of PW2 and PW4 is penetration of the vagina.
Corroboration confirms, supports, strengthens. It does not mean repeating the evidence or story which had been given by the victim prosecutrix, in this case PW1.
The learned trial judge was thus, right when he held at page 125 of the Record of Appeal in his judgment that:“The medical report (Exhibit “A”) shows that the hymen of PW1 was torn with blood on it. I hold that the medical report which shows that PW1’s hymen was torn with blood and the evidence of PW2 that when she removed PW1’s pant she saw blood stains corroborates the child’s testimony (PW1) that the accused had sex with her forcefully and blood came out from her vagina in the process. Thus, evidence of PW1 has been corroborated.”

​The only issue in this appeal is resolved against the Appellant This appeal lacks merit and it is accordingly dismissed.
The judgment conviction and sentence of the Appellant by Hon. Justice Ezekiel O. Enang on 8th February, 2017 in Charge No. HA/IC/2015 are hereby affirmed.

HAMMA AKAWU BARKA, J.C.A.: My Learned brother MOJEED ADEKUNLE OWOADE, J.C.A., made available to me a draft copy of the judgment just delivered. After perusing the brilliant reasoning and conclusion arrived at; I cannot but concur with the judgment, which I adopt as mine.

I join my Lord in dismissing this appeal and thereby affirm the decision of the Hon. Justice Ezekiel O. Enang in Suit No. HA/1C/2015 and delivered on the 8thof February, 2017.
Appeal dismissed.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of previewing the judgment of my learned brother, MOJEED ADEKUNLE OWOADE, J.C.A. I agree with the reasons and conclusion that the appeal lacks merit and should be dismissed.

​The sole issue in this appeal is the requirement or corroboration of the evidence of the prosecutrix who is a child. The law is settled that corroboration in respect of the offence of defilement and or rape is evidence which tends to show that the story of the prosecutrix that the accused committed the crime is true. Corroboration in general need not consist of direct evidence that the accused committed the offence charged, nor need it amount to confirmation of the whole account given by the witness/prosecutrix. It must however, corroborate the said evidence in some respect’s material to the charge in question. Also, the corroborative evidence must in itself be a completely credible evidence. EZIGBO V STATE (2012) 16 NWLR (prt. 1326) 318, SAMBO V STATE (1993) 6 NWLR (prt. 300) 399 and ANYIGOR V STATE (2019) 14 NWLR (prt. 1691) 45 at 58.

In the instant case, the evidence of PW2 sufficiently corroborated the evidence of PW1 by describing the blood stains she saw upon examining PW1’s pant soon after the incident. The findings of PW4 as regards the injuries on the vulva of PW1, laceration and the whitish discharge from PW1’s vagina further corroborated the evidence of the prosecutrix. In effect, PW1’s evidence was sufficiently corroborated by the evidence of PW2 and PW4.

​I too find this appeal lacking in merit and it is hereby dismissed.

Appearances:

CHIEF VICTOR IYANAM, ESQ.

For Appellant(s)

UWEMEDIMO NWOKO, ESQ. For Respondent(s)