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UZOMA v. C.O.P (2021)

UZOMA v. C.O.P

(2021)LCN/15864(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, October 28, 2021

CA/B/576C/2019

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

BENJAMIN UZOMA APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

 

RATIO

THE STANDARD OF PROOF IN CRIMINAL CASES

My Lords, issue one and two deal directly with the requirement of the law that an allegation of the commission of a crime must be proved beyond reasonable doubt by the prosecution by credible, cogent, competent and admissible evidence in order to secure the conviction of an accused person so charged. See Sections 135 and 209(1) of the Evidence Act 2011. See also Kamba V. Bawa (2005) 4 NWLR (Pt.914) 43; Olayinka V. The State (2007) 9 NWLR (Pt.1040) 561 @ p. 578; The State V. Ajayi (2016) 14 NWLR (Pt.1532) 196 @ p. 235; Etim & Ors V. Ekpe & Anor (1986) 14 NSCC 86 @ p. 96; Ifaramoye V. The State (2017) 8 NWLR (Pt.1568) 457 @ p. 505; Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.

To succeed therefore, the Prosecution must lead credible as well as admissible and competent evidence establishing the essential ingredients of the offence charged. In doing so the prosecution need not call a horde of witnesses since in law, the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. However, where corroboration is required, then corroborative evidence must be led before the conviction of an accused person charged with such an offence requiring by law corroboration can be secured, failing which he is entitled to be discharged and acquitted. See Sections 135and 209 (1) and (3) of the Evidence Act 2011. See also The State V. Ajayi (2016) 14 NWLR (Pt.1532) 196 @ p. 235; Etim & Ors V. Ekpe & Anor (1986) 14 NSCC 86 @ p. 96; Ifaramoye V. The State (2017) 8 NWLR (Pt.1568) 457 @ p. 505. PER GEORGEWILL, J.C.A.

THE TYPES OF EVIDENCE THE PROSECUTION CAN RELY ON TO PROVE THE COMMISSION OF AN OFFENCE CHARGED AGAINST AN ACCUSED PERSON
In law, the prosecution has open to it three basic types of evidence with which to prove the commission of an offence charged against an accused person beyond reasonable doubt, namely: a: Direct eye witness evidence; b: Confessional statement and c: Circumstantial evidence. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81. In considering the conclusions and findings reached by the Court below, I am aware that it is the prerogative of a trial Court which sees and hears the witnesses to choose which to believe and to ascribe probative value to such evidence, either oral or documentary. Thus, a trial Court being the master of the facts, must base his inferences, evaluation or assessment and findings on the available evidence adduced before it and therefore, if its findings must stand it must not be premised on extraneous facts or matters or conjectures outside the evidence given at the trial. See Emeka V. The State (2014) LPELR 23020 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584. PER GEORGEWILL, J.C.A.

THE POSITION OF LAW ON THE TEST OF COMPETENCE OF A CHILD WITNESS
Flowing from the above decisions, it seems fairly well settled, as it appears so to me, that in law the issue under Section 209 (1) and (2) of the Evidence Act 2011 in relation to test of competence of a child witness is neither always mandatory nor sacrosanct in that a trial Court is not under any obligation to determine the competence of a child unless it is challenged by the other party. Thus, unless on the record it is shown that a challenge by way of an objection was raised against the taking of sworn testimony of a child, a trial Court is neither bound nor under a duty or obligation to first determine by way of administering those questions as envisaged under the Evidence Act 2011 before allowing a child to testify on oath. See Okon V. The State (1988) ANLR 173 @ p. 186, where the Supreme Court had per Agbaje JSC, pronounced emphatically inter alia thus:
“Since all persons are competent to testify, until the competence of a witness to testify is challenged for any of the reasons stated in the Section there is in my view no obligation on the Court to determine the competence of a witness to testify.”  PER GEORGEWILL, J.C.A.

THE DEFENSE OF ALIBI
The defense of alibi raised and relied upon by the Appellant at the trial has been defined simply to mean ‘elsewhere’. The duty is on the accused person not only to raise it at the earliest opportunity but also to give adequate and detailed particulars of the alibi to enable the Police investigate it, failing which it would really be of no moment if the Police had no detailed particulars and therefore, had nothing to investigate in it. See Black’s Law Dictionary, 9th Edition @ p. page 84.
In Patrick Njovens & 8 Ors V. The State (1973) 5 SC 12 @ p. 47, the Supreme Court considered the defence of alibi and had stated emphatically inter alia thus:
“There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is a flexible and verifiable way of doing this. If the prosecution adduces sufficient evidence to fix the person at the scene of the crime at the material time, surely his alibi is thereby logically and physically demolished.”
In James Badung V. COP Plateau State Command (2019) LCN – I12851(CA), this Court had stated inter alia thus:
“Where an accused person has unequivocally raised the defence of alibi that he was somewhere else other than the locus delicti at the time of the commission of the offence with which he is charged, he must give some facts and circumstances of his whereabouts for the Prosecution to be duty bound to investigate the alibi set up, to verify its truthfulness or otherwise… In law, the defence of alibi cannot succeed where an accused person is miserly in giving particulars of his whereabouts and in whose company he was but merely states that he was not at the scene of the crime. He is bound to give the lead and particulars of his where about at the earliest opportunity which will assist the Prosecution in their investigation of the alibi as the Police is not expected to go on a wild goose chase in order to investigate an alibi.”
It is also important to note that in law when the main defence of an accused person is an alibi, then great care must be taken by the trial Court in relying on the identification by a single witness and the facts of such identification must be carefully dealt with in the summing up and review of the totality of the evidence led by the parties. See Idemudia V. The State (2015) 17 NWLR (Pt.1488) 375 @ P. 396 per Ogunbiyi JSC.
 PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, Coram: U. I. Erameh J., sitting in its appellate jurisdiction in Appeal No. B/1CA/2019/A: Benjamin Uzoma V. Commissioner of Police delivered on 17/5/2019, wherein the judgment of the learned Chief Magistrate Court, Coram: Mrs. J.O. Ejale (Special Grade) sitting at the Oredo Magistrate Court, Family Division, in Charge No. MOR/108C/2018: COP. V. Benjamin Uzoma delivered on 5/10/2018, in which the Appellant was convicted for the offences of unlawful indecent assault and unlawful carnal knowledge punishable under Sections 222 and 218 of the of the Criminal Code, Cap. 48 Vol. II, Laws of the defunct Bendel State of Nigeria, 1976 now applicable in Edo State and was sentenced to 10 years imprisonment with hard labour, was affirmed.

The Appellant was peeved with the said judgment and had appealed against it to this Court vide his Notice of Appeal filed on 15/8/2019 on Three Grounds of Appeal. See pages 169 – 171 of the Record of Appeal. Subsequently, an Amended Notice of Appeal on four grounds of appeal was filed on 24/6/2020 but was deemed as properly amended on 23/9/2021. The Record of Appeal was duly compiled and transmitted to this Court on 26/9/2019. The Appellant’s brief was filed on 24/6/2020 but was deemed as properly filed on 23/9/2021. The Respondent’s brief was filed on 6/8/2021 but was deemed as properly filed on 23/9/2021.

At the hearing of this appeal on 23/9/2021, O. T. Okeke Esq., Registered Pro Bono Lawyer with Legal Aid Council of Nigeria, learned counsel for the Appellant, adopted the Appellant’s brief as his arguments and urged the Court to allow the appeal and set aside the judgment of the Court below and to discharge and acquit the Appellant. On their part, Mrs. R. O. Oaihimure SSC MOJ Edo State, learned counsel for the Respondent adopted the Respondent’s brief as their arguments and urged the Court to dismiss the appeal and affirm the conviction and sentence on the Appellant by the Court below.

By a charge filed before the trial Oredo Magistrate Court by the Respondent, the Appellant was arraigned on a two Count charge alleging the following offences, namely:
COUNT I:- That you Benjamin Uzoma ‘m’, on 11/5/2018 at about14.30hrs, at No. 6, Oviawe Street, Aduwawa Quarters, Benin City in Ogbeson Magisterial District did unlawfully and indecently assaulted Deborah Saguona ‘f’ aged 10 years to wit: you forcefully removed Deborah Saguona’s pant, applied cream to her virginal and lay down on her against her will and thereby committed an offence punishable under Section 222 of the Criminal Code Cap. 48, Vol. II Laws of the defunct Bendel State of Nigeria 1976, also applicable in Edo State.
COUNT II:- That you Benjamin Uzoma ‘m’, on or about the 11/5/2018 at about 14.30hrs, at No. 6, Oviawe Street, Aduwawa Quarters, Benin City in Ogbeson Magisterial District did unlawfully have canal knowledge of Deborah Saguona “F” aged 10 years against her will and did defiled her and thereby committed an offence punishable under Section 218 of the Criminal Code, Cap 48,Vol. II Laws of the defunct Bendel State of Nigeria 1976, also applicable in Edo State.

BRIEF STATEMENT OF FACTS
As can be garnered from the evidence led before the Court below, the case of the Respondent as the prosecution was that on 11/5/2018, the Prosecutrix was in her house when the Appellant came to their house and asked where her grandmother was and she told him that her grandmother was not at home and then he brought out Gala, Milkose Sweet and Bobo drink and gave it to her and went outside and returned back to the room and asked for the sweets he gave her but she told him that she has licked them, then he pushed her into the chair, pulled off her pant and threatened to kill her if she shouts. He then brought out a white cup from his bag and used his hand to rub a white cream inside her vagina, pulled his trousers and laid on her kissing her and used his hand to put his penis inside her vagina. When she was feeling pain she bit him on his tongue and told him that she wanted to ease herself and when he let her go she ran to the house of one Kadiyat and told her what had happened and to go and confirm if he was still in her house and the two of them stayed in the house of Kadiyat to watch him from the window until they saw him leave. The Prosecutrix also reported the matter to her Aunt, who checked her vagina and saw semen inside and she was taken to the Aduwawa Police Station were the case was reported. She was then referred to a Clinic at Ikpoba Hill for Medical examination, where the Doctor told her grandmother that she has bruises in her vagina but that she did not contract HIV. See pages 38 – 42 of the Record of Appeal.

As can be garnered from the evidence led, the case of the Appellant as accused person was that he did not commit the alleged offences and raised the defense of alibi as corroborated by the DW1 and that he was surprised to be arrested by the Police on frivolous allegation since he did not have any misunderstanding with the Prosecutrix’s family whom he had been going to pray with from time to time since 2017 and could not have committed the offences alleged against him when he was undergoing training in Philosophy and Theology in order to be ordained as a Priest. He denied confessing to the commission of the crime at the house of the Prosecutrix and maintained that he was at the house of the Prosecutrix on 7/5/2018 to pray with them but was not in their house as alleged on 11/5/2013. See pages 71 – 72 of the Record of Appeal.

At the trial before the Oredo Magistrate Court, Family Division, the Appellant pleaded not guilty to the two counts charge. In proof of its case, the Respondent called six witnesses who testified as PW1, PW2, PW3, PW4, PW5 and PW6 and tendered several documents, which were admitted in evidence as Exhibits and closed its case. In his defense, the Appellant testified for himself and closed his defense. On 5/10/2018, the trial Court delivered its judgment in which the Appellant was convicted for the offences of unlawful indecent assault and unlawful carnal knowledge and was sentenced to 10 years imprisonment with hard labor on each of the two counts and the sentences to run concurrently. The Appellant was dissatisfied with his conviction by the trial Magistrate Court and had promptly appealed to the Court below, which duly heard the appeal and on 17/5/2019, the Court delivered its judgment dismissing the appeal by the Appellant and affirming his conviction and sentence by the trial Magistrate Court, hence this further appeal to this Court. See pages 61 – 83 of the Record of Appeal for the judgment of the Oredo Magistrate Court. See also pages 147 – 168 of the Record of Appeal for the judgment of the Court below.
​ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the grounds of appeal, namely:
1. Whether from the totality of the evidence led and upon a proper evaluation of the evidence on record, the Court below was right in upholding the decision of the trial Oredo Magistrate Court that the Respondent proved beyond reasonable doubt the two-count charge against the Appellant even when most of the evidence on record were favourable to the Appellant? (Distilled from grounds one, two and four)
2. Whether from the totality of the evidence led and upon a proper evaluation of the evidence on record, the Court below was right in upholding the decision of the trial Oredo Magistrate Court rejecting the alibi of the Appellant without being satisfied of its falsity or weakness? (Distilled from grounds two and four)
3. Whether the sentence imposed on the Appellant by the trial Oredo Magistrate Court and affirmed by the Court below was not excessive? (Distilled from grounds three and four)

In the Respondent’s brief, four issues were distilled as arising for determination in this appeal, namely:
1. Whether the prosecution proved the charge of unlawful carnal knowledge and indecent assault against the Appellant beyond reasonable doubt or Whether there are material contradictions in the evidence of the prosecution witness.
2. Whether the defence of alibi can avail the appellant in the instant case.
3. Whether the sworn evidence of a child is invalid and inadmissible.
4. Whether the sentence of the trial Court imposed on the appellant is excessive.

I have looked at the charges and the particulars thereof as laid against the Appellant by the Respondent before the Court below. I have also reviewed the evidence, oral, documentary and other items tendered in evidence as Exhibits before the Court below. I have also considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the judgment of the Court below, and it does appear to me that the proper issues for determination in this appeal are the three issues as distilled in the Appellant’s brief, which best represent the real issues arising for determination in this appeal. It is my view that a consideration of these three issues would invariably involve the due consideration of the four issues distilled in the Respondent’s brief. However, since issues one and two are interwoven, I shall consider and resolve them together in one fell swoop and thereafter consider and resolve issue three on its own. 

ISSUES ONE AND TWO (TAKEN TOGETHER)
Whether from the totality of the evidence led and upon a proper evaluation of the evidence on record, the Court below was right in upholding the decision of the trial Oredo Magistrate Court that the Respondent proved beyond reasonable doubt the two – count charge against the Appellant even when most of the evidence on record were favourable to the Appellant AND whether from the totality of the evidence led and upon a proper evaluation of the evidence on record, the Court below was right in upholding the decision of the trial Oredo Magistrate Court rejecting the alibi of the Appellant without being satisfied of its falsity or weakness?

APPELLANT’S COUNSEL SUBMISSIONS
On issues one and two, learned counsel for the Appellant had submitted that in law it is for the prosecution to prove its case beyond reasonable doubt and until that is done the accused has no duty to call evidence in rebuttal as there is no obligation on him in law to prove his innocence and contended that failure of the prosecution to do so will lead to the discharge and acquittal of the accused person and urged the Court to hold that the Respondent failed to lead any credible and corroborative evidence as required by law against the Appellant and thereby failed to prove its case beyond reasonable doubt as required by law and therefore, the Court below was wrong to have found the Appellant guilty on all or any of the two count charge and to allow the appeal, set aside the judgment of the Court below and discharge and acquit the Appellant. Counsel referred to Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Section 135 (1) of the Evidence Act 2011 and relied on Onubogu V. The State (1974) 9 NSCC 358; Aigbadion V. The State (2000) 7 NWLR (Pt. 666) 686 @ p. 690; Ikaria V. The State (2014) 1 NWLR (Pt. 1389) 639 @ p. 643.

It was also submitted that in law, the trial Magistrate Court was duty-bound to evaluate the entire evidence adduced by the Respondent and not to pick and choose which of the evidence or witnesses to believe and which to reject before arriving at its finding of the guilt of the Appellant and contended that in law from the totality of the evidence adduced by the Respondent were incompetent, non-compelling, insufficient and conflicting and thereby ought to have created serious and reasonable doubt in the minds of the two Courts below and urged the Court to hold that both the trial Magistrate Court and the Court below were wrong to have relied on such incompetent, non-compelling and inconsistent evidence to convict and affirm the conviction of the Appellant and to allow the appeal, set aside the conviction and judgment of the Court below and discharge and acquit the Appellant on the two count charge. Counsel relied on Muka & Ors V. The State (1976) 9 & 10 SC 305 @ pp. 325 – 326; Ibeh V. The State (1997) 1 NWLR (Pt. 484) 632 @ p. 636; Stephen Ukorah V. The State (1977) 4 SC 167 @ p. 177; Onafowokan V. The State (1987) 18 NSCC (Pt. 2) 1101 @ p. 1107; Almu V. The State (2009) 10 NWLR (Pt. 1148) 31 @ p. 53.

It was further submitted that the only direct evidence led in support of Count one was the sworn evidence of the Prosecutrix who is a child less than 14years and that of the PW2, who is also a child and both of which evidence cannot in law be relied on to ground a conviction since a child cannot give sworn testimony and contended that both the trial Magistrate Court and the Court below ought to have warned themselves of the dangers and incompetence of the sworn evidence of children and to discountenance rather than to rely on them to unjustly convict the Appellant and urged the Court to hold that the uncorroborated evidence of the PW1 was incapable of proving all or any of the two count charge against the Appellant beyond reasonable doubt as require by law and to discountenance and expunge same and allow the appeal since without these incompetent evidence there was no other iota of evidence against the Appellant and to set aside the perverse judgments of the two lower Courts and discharge and acquit the Appellant. Counsel referred to Sections 175(1), 209(1) and (3) of the Evidence Act 2011.

It was also further submitted that there was nothing on the record to show that Prosecutrix and PW2 were even admonished or guided by the trial Magistrate Court on any or all of the conditions precedent before they gave their evidence and contended that in law, it is only when the above pre-conditions are all met that the Prosecutrix and the PW2 can be said to be competent to give evidence since in law a child less than 14years cannot give sworn evidence or affirm and urged the Court to hold that the sworn evidence of the Prosecutrx and the PW2 having not fulfilled the requisite pre-conditions were incompetent and in law amounted to naught and ought therefore, to be expunged and being the main evidence heavily relied upon by the trial Magistrate Court in convicting the Appellant, to allow the appeal, set aside the judgments of the two lower Courts and discharge and acquit the Appellant. Counsel referred to Section209 (1) and (3) of the Evidence Act 2011 and relied on Kamba V. Bawa (2005) 4 NWLR (Pt.914) 43; Olayinka V. The State (2007) 9 NWLR (Pt.1040) 561 @ p. 578; The State V. Ajayi (2016) 14 NWLR (Pt.1532) 196 @ p. 235; Etim & Ors V. Ekpe & Anor (1986) 14 NSCC 86 @ p. 96; Ifaramoye V. The State (2017) 8 NWLR (Pt.1568) 457 @ p. 505.

It was also submitted that Edo State Family Court Rules, particularly Order 5 Rule 8 is a subsidiary legislation pursuant to Section 122 of the Evidence Act 2011 and contended that evidence is an item in the Exclusive Legislative List in the Second Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and therefore, the exclusive preserve of the National Assembly to legislate on and urged the Court to hold that in law not even the State House of Assembly can legislate on such an item and therefore, by the operation of the doctrine of covering the field, where the National Assembly has exercised its legislative powers by enacting a law covering a subject matter, such as evidence, any other law or subsidiary legislation enacted in that regard is indeed void and of no effect for its inconsistency and to strike down Order 5 Rule 8 of the Edo Family Court Rules for being inconsistent with the provision of Section 209(1) of the Evidence Act. Counsel relied on AG. Lagos State V. Eko Hotels Ltd & Anor (2017) 6-12 MJSC (Pt. l) 38 @ pp. 65-66. Amaechi V. INEC (2008) 1 MJSC 1 @ p. 193; UNTHMB V. Nnoli (1994) 8 NWLR (Pt.363) 404; Ejilemele V. Opara (1998) 9 NWLR (Pt.567) 587.

It was further submitted that save the incompetent sworn evidence of the PW1 and PW2, all the rest of the witnesses, PW3, PW4, PW5 and PW6 merely gave hearsay evidence which cannot form the basis of any finding of facts against the Appellant and contended that since all the evidence led by the Respondent were either incompetent and or inadmissible, they should all be expunged and urged the Court to hold that upon the expunging of these pieces of evidence and since they were the only evidence relied upon by the trial Magistrate Court, the Respondent failed to prove any or all of the two count charge against the Appellant as required by law and to allow the appeal, set aside the concurrent findings of the two lower Courts based on conjectures and surmises and discharge and acquit the Appellant. Counsel referred to Section 38 of the Evidence Act 2011 and relied on Pharmacists Board of Nigeria V. Adegbesote (1986) 5 NWLR (P’t.44) 707 @ pp. 731-714; Management Ent. Ltd. & Anors. V. Otusanya (1987) 2 NWLR (PT.55) 179 @ pp. 192 – 193; Ikaria V. The State (2014) 1 NWLR (Pt.1389) 639 @ pp. 651 – 652; Igabele Vs. The State (2006) 5 LRCNCC 30; Shehu Vs. The State (2010) 8 NWLR (PT. 1195) 112 AT 135-136; Bamanga Bako Vs. The State (2018) LPELR – 44479 (CA). On count 2, it was submitted that the Respondent failed to prove the essential elements of the offence against the Appellant beyond reasonable doubt as required by law and contended that each of the essential elements must be proved to co-exist as they each constitute an integral part for the offence charged in Count 2 and urged the Court to hold that the trial magistrate Court was wrong to have convicted the Appellant on count 2 in the absence of any credible evidence amounting to proof beyond reasonable doubt and therefore, the Court below was in error when it affirmed the wrongful conviction of the Appellant and to allow the appeal, set aside the concurrent findings of the two lower Courts and discharge and acquit the Appellant. Counsel relied on Rabiu V. The State (2005) 7 NWLR (Pt. 925) 491 @ pp. 514 – 515; Nwaturuocha V. The State (2011) 197 LRCN 114 @ p. 121; Suleman & Anor. V. COP Plateau State (2008) 8 NWLR (Pt. 1089) 298 @ p. 323.

It was also submitted that the Respondent in its possession the medical report of the Prosecutrix made immediately after the alleged incident showing that she was not tempered with but that was withheld and a medical report made 14 days after the alleged incident and tendered as Exhibit E, which was outrightly biased and without history to show that a medical examination was previously conducted on the genital of the Prosecutrix, was unfairly relied upon by the trial Magistrate Court to wrongfully convict the Appellant and which wrongful conviction was in error affirmed by the Court below and contended that in law the failure to tender the earlier medical report amounted to withholding and suppression of evidence favorable to the Appellant and urged the Court to so hold and to resolve the doubts created by the non tendering of the favorable medical report in favor of the Appellant and allow the appeal, set aside the concurrent findings of the two lower Courts and discharge and acquit the Appellant. Counsel referred to Section 167(d) of the Evidence Act 2011 and relied on Onah V. The State (1985) 3 NWLR (Pt. 12) 236 @ p. 245; Ogudo V. The State (2011) 18 NWLR (Pt.1278) 1 @ p. 31; The People of Lagos State V. Umaru (2014) 7 NWLR (Pt 1407) 584 @ p. 623; Odofin Bello V. The State (1966) 4 NSCC 268 @ p. 274; Mohammed V. The State (1991) 5 NWLR (Pt. 192) 438 @ p. 456; Akpabio & Ors V. The State (1994) 7 NWLR (Pt. 359) 635; Ghohor V. The State (2013) All FWLR (Pt. 709.) 1061 @ pp. 1086 – 1087.

It was further submitted that the evidence of PW1, PW2 and PW5 were irreconcilably in conflict and inconsistent both as to the date of the report of the alleged incident and the information given to PW2 by the Prosecutrix and contended that in law a Court of law cannot convict on such pieces of conflicting and irreconcilable evidence without falling into error since such inconsistent evidence cannot induce any believe and urged the Court to hold that the trial Court was wrong in the circumstances to have convicted the Appellant and the Court below was in grave error to have affirmed such a wrongful conviction and to allow the appeal, set aside the concurrent judgments of the two lower Courts and discharge and acquit the Appellant. Counsel relied on Aigbadion V. The State (2000) 7 NWLR (Pt. 666) 686 @ p. 689.

It was also further submitted that in the final consideration of the totality of evidence the trial Magistrate Court failed to consider the defences open on the evidence to the Appellant including but not limited to his alibi as in Exhibit L dated 15/5/2018, which was investigated and found to be true by the Police as confirmed by PW3, the IPO at State CID and contended that since Exhibits L and F are not confessional, they remained the foundation of the Appellant’s defence which the trial Magistrate ought to have but failed to consider and urged the Court to hold that the trial Magistrate Court erred in law in rejecting the established defense of alibi of the Appellant and therefore, the Court below was in grave error affirming the perverse judgment of the trial Magistrate Court and to allow the appeal, set aside the concurrent judgments of the two lower Courts and discharge and acquit the Appellant on both Counts 1 and 2. Counsel relied on Adebayo V. The Republic (1967) NMLR 391 @ p. 393; Nwankwoala & Anor. V. The State (2006) 14 NWLR (Pt. l000) 663 @ p. 686; Nwuzoke V. The State (1988) 1 NWLR (Pt.72) 529 @ pp. 532 – 533; Oforlette V. The State (2000) 12 NWLR (Pt. 681) 415 @ pp. 422-423; Musa Yaro V. The State (2007) 18 NWLR (Pt. 1066) 215 @ pp. 232 – 233; Obiode & Ors V. The State (1970) 1 All NLR 35 @ p. 40; Bozin V. The State (1985) 2 NWLR (Pt.8) 465 @ pp. 473-474; Nwabueze V. The State (1988) 4 NWLR (Pt. 86)16 @ p. 19; Ukwunnenyi & Anor. V. The State (1989) 4 NWLR (Pt.114) 131 @ p. 149; Umani V. The State (1988) 1 NWLR (Pt.70) 274 @ pp. 284- 285; Ikono & Anor. V. The State (1973) 8 NSCC 352 @ pp. 357 – 363; Abudu V. The State (1985) 1 NWLR (Pt.1) 55 @ pp. 58 – 62; Idemudia V. The State (2015) 17 NWLR (Pt. 1488) 375 @ p. 396.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Respondent had submitted that the Respondent proved by credible and cogent direct evidence of the Prosecutrix well corroborated by the evidence of the PW1, PW2, PW3, PW4, PW4 and PW6 and fair and square the allegations under counts 1 and 2 against the Appellant beyond reasonable doubt as required by law and contended that in law once the offence of unlawful carnal knowledge is established, the offence of indecent assault if also charged, is automatically also proved and urged the Court to hold that the trial Magistrate Court was right when it convicted the Appellant on the two Counts and the Court below was right when it affirmed the sound judgment of the trial Magistrate Court since in law, beyond reasonable doubt does not mean proof beyond every iota of doubt or proof beyond every shadow of doubt, but simply means proof which conveys a high degree of probability and urged the Court to dismiss the appeal and affirm the concurrent findings of the two lower Court. Counsel referred to Section 218 of the Criminal Code and relied on Adonike V. The State (2015) LPELR-24281 (SC); Musa V. The State (2012) Vol.10 LRCNCC 255 @ p. 262; Miller V. Minister of Pensions (1947) 2 All ER372; Shurumo V. The State (2012) Vol.10 LRCNCC 1 @ p. 9; Afolalu V. The State (2011) Vol. 194 LRCN 136 @ p. 142; Ogunniyi V. The State (2012) LPELR-8567(CA); Jua V. State (2010) 43 WRN 1 @ pp. 24 – 25.

It was also submitted that in law, contradictions in the evidence of the Respondent if amounting to minor discrepancies, as in the minor discrepancies as to date and time the alleged offences was reported to the Police and PW2, are of no moment and does not affect the credible case of the Respondent proved beyond reasonable doubt against the Appellant and contended that the Prosecutrix as well as the PW2 were both minors and as such it was not unexpected to have minor discrepancies in their recounting of dates and time, and such discrepancies when they occur are not fatal to the case of the prosecution and urged the Court to so hold and to dismiss the appeal and affirm the sound concurrent findings of guilt of the Appellant by the trial Magistrate Court and the Court below. Counsel relied on Egwumi V. State (2013) 13 NWLR (Pt. 1372) 525; Galadima V. State (2017) 14 NWLR (Pt. 1585) 187; Boniface Adonike V. The State (2015) SC 168; Golden Dibie & Ors V. The State (2007) 3 SCNJ 160; John Ogbu & Anor V. The State (2007) 2 SCNJ 319.

On his issue two, learned counsel for the Respondent had submitted that in law, the defense of alibi is based on the physical impossibility of an Accused Person’s guilt by placing him in a location other than the scene of the crime at the relevant time and contended for a successful plea of alibi it is not enough to merely plead the defence of alibi but the law requires the accused person relying on alibi to make such plea timeously with details and particulars of his where about to the Police for same to be investigated and urged the Court to hold that the Appellant having not given the Police any detail and particulars of his whereabout in his earlier statements to the Police, the subsequent detail given after he had been granted bail and re-arrested by the Police was a mere afterthought to inaugurate a false defense of alibi since the Police would have gone on a wild goose chase to investigate his alibi given at the earliest opportunity without any particulars of his whereabout and at any rate in law it is not every failure by the Police to investigate an alibi by an accused person, fixed by credible evidence of the Prosectrix and PW2 to the scene of crime, that is fatal to the case of the Prosecution and to dismiss the appeal and affirm the justifiable rejection of the defense of alibi set up as an afterthought by the Appellant. Counsel referred to Black’s Law Dictionary, 9th Edition @ p. page 84 and relied on Balogun V. AG Ogun State (2002) LCN 3286; James Badung V. COP Plateau State Command (2019) LCN – I12851(CA); Tirimisiyu Adebayo V. The State (2014) 5 SCNJ 825; Chief Vincent Duru V. The State (2017) ALL FWLR (PT. 893) 1243; Patrick Njovens & 8 Ors V. The State (1973) 5 SC 12 @ p. 47; Archibong V. State (2006) 14 NWLR (Pt. 1000) 349; Ibe V. the State (1992) 5NWLR (Pt. 244) 642 @ p. 649; Adetola V. The State (1992) 4NWLR (Pt. 235) 267 @ p. 267; Umani V. The State (1988) I NWLR (Pt. 70) 274; Awopejo V. State (2001) 92 LRCN 3187.

On his issue three, learned counsel for the Respondent had submitted that the sworn evidence of the Prosecutrix as well as that of PW3 were competent and in the absence of any objection by the learned counsel for the Appellant at the time they were sworn on oath to the satisfaction of the trial Magistrate Court of their ability to understand the consequences of testifying under oath and to say the truth and having also been cross-examined, their evidence was good evidence on which the trial Magistrate Court rightly relied and acted upon and finding its credible to convict the Appellant and which conviction was properly affirmed by the Court below and contended that in law that the trial Magistrate Court was right in the exercise of its discretion to have received the evidence of the Prosecutrix and PW2, and the Court below was also right to have affirmed the reliance on their evidence by the trial Magistrate Court and urged the Court to so hold and to dismiss the appeal for lacking in merit and affirm the concurrent conviction of the Appellant. Counsel referred to Section 209 (1) of the Evidence Act 2011 and relied on Umar V. State & Anor (2020) LPELR – 50442 (CA); Peter V State (1997) 12 NWLR (Pt. 531) 1; Obi V. State (2016) LPELR – 40543(CA) 18-24; John Okoye V. The State (1972) LCN – 1279 (SC); Okon V. The State (1988) ANLR 173 @ (p. 186).

It was also submitted that on the welter of opinion of the apex Court and this Court, in law there is nothing wrong in the trial Magistrate Court admitting the sworn testimonies of the Prosecutrix and PW2 in the absence of any objection pursuant to Section 209 (1) of the Evidence Act 2011 from the Appellant and or his counsel and contended that the sworn testimonies of the Prosecutrix and PW2 did not and had not also been shown to have occasioned any miscarriage of justice to the Appellant who was duly represented by a Counsel that never objected to the reception of their evidence under oath and urged the Court to hold that the trial Magistrate Court as well as the Court were right when it respectively convicted and affirmed the conviction of the Appellant on the credible evidence of the Prosecutrix and the PW2 as well as the evidence of PW1, PW3, PW4, PW5 and PW5 and to dismiss the appeal and affirm the concurrent conviction of the Appellant.

RESOLUTION OF ISSUES ONE AND TWO
My Lords, issue one and two deal directly with the requirement of the law that an allegation of the commission of a crime must be proved beyond reasonable doubt by the prosecution by credible, cogent, competent and admissible evidence in order to secure the conviction of an accused person so charged. See Sections 135 and 209(1) of the Evidence Act 2011. See also Kamba V. Bawa (2005) 4 NWLR (Pt.914) 43; Olayinka V. The State (2007) 9 NWLR (Pt.1040) 561 @ p. 578; The State V. Ajayi (2016) 14 NWLR (Pt.1532) 196 @ p. 235; Etim & Ors V. Ekpe & Anor (1986) 14 NSCC 86 @ p. 96; Ifaramoye V. The State (2017) 8 NWLR (Pt.1568) 457 @ p. 505; Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.

To succeed therefore, the Prosecution must lead credible as well as admissible and competent evidence establishing the essential ingredients of the offence charged. In doing so the prosecution need not call a horde of witnesses since in law, the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. However, where corroboration is required, then corroborative evidence must be led before the conviction of an accused person charged with such an offence requiring by law corroboration can be secured, failing which he is entitled to be discharged and acquitted. See Sections 135and 209 (1) and (3) of the Evidence Act 2011. See also The State V. Ajayi (2016) 14 NWLR (Pt.1532) 196 @ p. 235; Etim & Ors V. Ekpe & Anor (1986) 14 NSCC 86 @ p. 96; Ifaramoye V. The State (2017) 8 NWLR (Pt.1568) 457 @ p. 505.

In law, the prosecution has open to it three basic types of evidence with which to prove the commission of an offence charged against an accused person beyond reasonable doubt, namely: a: Direct eye witness evidence; b: Confessional statement and c: Circumstantial evidence. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81. In considering the conclusions and findings reached by the Court below, I am aware that it is the prerogative of a trial Court which sees and hears the witnesses to choose which to believe and to ascribe probative value to such evidence, either oral or documentary. Thus, a trial Court being the master of the facts, must base his inferences, evaluation or assessment and findings on the available evidence adduced before it and therefore, if its findings must stand it must not be premised on extraneous facts or matters or conjectures outside the evidence given at the trial. See Emeka V. The State (2014) LPELR 23020 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584.

On a charge as in Count 1 alleging unlawful and indecent assault, the Respondent was under a duty to prove the following essential ingredients of the offence punishable under Section 222 of the Criminal Code, that is, the accused person unlawfully and indecently or forcefully assaulted the Prosecutrix.

On a charge as in count 2 alleging unlawful carnal knowledge and willful defilement, the Respondent was under a duty to prove the following essential ingredients of the offence punishable under Section 218 of the Criminal Code, namely; That the child is under the age of 11, that there was penetration of the child’s vagina, that it was the penis of the accused person that penetrated the said vagina, and that the evidence of the child was corroborated by independent evidence. See Adonike V. The State (2015) LPELR – 24281 (SC)

My Lords, having averted my mind to the applicable principles of law and the essential ingredients of both offences for which the Appellant was convicted and sentenced, what are the pieces of evidence led by the Respondent in proof of these alleged offences against the Appellant and the evidence led in defense by the Appellant on which the trial Oredo Magistrate Court convicted and sentenced the Appellant, and which conviction and sentence were affirmed by the Court below?

PW1, is the grandmother of the Prosecutrix and she stated the Appellant was introduced to her by his mother as a Seminarian and she took him as her spiritual father who comes to their house to pray with and for them. However, on one of his visits he got to know she was travelling to Port Harcourt and prayed for her but to her surprise he visited her house while she was away in Port Harcourt and had carnal knowledge of the Prosecutrix and when she confronted him with the allegation, he begged for forgiveness but her son, one Paul Edoro, had already reported the matter to the Police. Under cross-examination, she admitted not witnessing the alleged incident. The PW2 was one Kadiya Musa and she stated on oath that on 11/5/2018 she came back from school and saw the Appellant entering into the Prosecutrix’s house but that not long after, the Prosecutrix ran to her instructing her to check if the Appellant had left their house and on getting to the house she met the Appellant holding a cellophane bag and she pretended asking for the Prosecutrix knowing well that she was in her house and on return to her house she waited with the Prosecutrix until the Appellant closed the gate and left. Under cross-examination, she stated that when she went into the house of the Prosecutrix the Appellant was inside the house and she greeted him and asked him about the Prosecutrix but he told her to go into the house and look for the Prosecutrix, who did not tell her any other thing on that day.

The Prosecutrix testified and stated on oath that she knew the Appellant as a familiar visitor to their house and that he came to their house on 11/5/2018 and asked for her grandmother and when she told him her grandmother was not at home, he told her he knew about it upon which he brought out Gala, Milkose Sweet and Bobo drink and gave to her, which he later collected from her and kept on the table while he opened one of the sweets and slipped it into her mouth and went outside while she dropped the items at the back of a chair. He came back into the house to ask about the Sweet he had put in her mouth and when he discovered that she has licked it, he pushed her on the chair, pull down her pant, brought out a white cup from his bag and used his hand to rub a white cream into her vagina while he laid on her, pull his trouser used his hand to bring out his penis and inserted it into her vagina and at the same time kissing her. She then bite his tongue while she was feeling pains in her vagina and excused him that she wanted to ease herself and when he let her go, she escaped to the house of the PW2 where they sat together until he left. However, she could not shout because of his threat to kill her but she inform one of her sisters called Tina about what the Appellant did to her and upon physical examination on her, Tina found a white substance robbed in her vagina without semen and she was taken to the Police Station the following day and their personal Clinic at Ikpoba Hill for examination, where upon examination the Doctor told the PW1 that she had bruises in her vagina but was not infected with HIV. Under cross-examination, she maintained that the Appellant was in their house at about 6pm on the date of incident but she wore back her pant without blood stain and that only the PW2 and her Uncle’s wife knew about the incident on that day.

PW3 was one of the Investigating Police Officer from the Aduwawa Police Station and he stated that on 23/5/2018, a case of defilement of the Prosecutrix was reported at the Station and was referred to him for investigation. He took statements from the victim and other witnesses and re-arrested the Appellant who also made statement to him under caution and he took the victim and the Appellant to the Police Clinic for medical examination and treatment before charging the case to Court. The statements on oath of the witnesses were tendered in evidence as Exhibits A, A1, B, C, C1, D, D1, E, F. The Investigation Report dated 4/6/2018 was admitted as Exhibit G and G1. Under cross–examination, he admitted that they investigated the plea of alibi put up by the Appellant and found that he was in the house of one Lizzy Ogbadu on the fateful day and he was neither given pant stained with semen or sweet recovered from the Prosecutrix. PW4 was one Tina Edoror and she stated that when she returned home from the shop at about 7. 45p.m on 11/5/2018 the Prosecutrix reported the Appellant to her and she examined her and saw white semen in her vagina and also saw the sweet the Appellant allegedly gave to her and thereafter called her brother in law who took them to the Police Station to report the incident. However, the Appellant begged them on their way to the Police Station saying it was the handwork of the devil. Her statement dated 10/7/018 was admitted as Exhibit H, HI. Under cross – examination, she stated that at the time of the incident only the Prosecutrix was at home and she took her to the Police on 12/5/018 and maintained that she saw semen on the Prosecutrix’s pant on examination.

PW5 was the IPO at Aduwawa Police Station and she stated in Exhibit J, J1, that she recorded statement from the Prosecutrix and that at the Doctor’s office she saw bruises on the right and left side of the Prosecutrix vagina and took statement from the Appellant and clinical examination on him showed that he had no known disease and the matter was later transferred to the State CID for further investigation. Under cross-examination, she admitted that she did not investigate the alibi put up by the Appellant. PW6 was one Dr Omoefe Okoro Elohor of Police cottage Hospital and she stated that the Prosecutrix was brought to the hospital on 25/5/2018 by the PW5 with a complaint of defilement that occurred 14 days earlier and she examined her and saw a young girl of about 10 years in a generally stable condition at the time but on vagina examination, found that her normal female external genterial (hymen) was not intact but other general tests carried out came out negative and hence she was issued Exhibit E. She also stated that the bruises on her vagina would have been healed after 14 days without visible sperm cells because of the delay in presenting her but however, that it was possible for the hymen to have been broken on its own. Under cross-examination, she said a medical history of the Prosecutrix had nothing to do with the medical examination. See pages 63 – 70 of the Record of Appeal.

DW1 was one Mrs. Lizzy Egbadon whose statements on oath was admitted as Exhibit M, M1 and she stated that on 11/5/2018, the Appellant was with her in the house to join them in praying and to celebrate the birthday of one of her grandsons and that he was in her house from about 11 am till he left at about 5pm for evening Mass. Under cross-examination, she stated that she made a statement to the Police on 11/5/2018, admitted as Exhibit N but that on 11/5/2018, she had only called the Appellant to pray with them and not to celebrate her grandson’s birthday and that when he was leaving she escorted him to the Bus-Stop after praying with them but he did not tell her where he had gone to before arriving at her place.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The Appellant testified on his behalf as DW2 and his statement on oath was admitted as Exhibits O, O1 and O2 in which he denied the charge in its entirety and raised the defence of alibi as already testified to by the DW1 and stated that he was surprised to be arrested by the Police on such a frivolous allegation. Under cross-examination, he maintained that he had no misunderstanding with the Prosecutrix’s family and that he had been praying with them from time to time since 2017 and was undergoing training in Philosophy and Theology in order to be ordained as a Priest. He was released on bail after a week but was later re-arrested on 22/5/2018 and maintained that he was never at the Prosecutrix house on 10/5/2018 to pray with them. See pages 71 – 72 of the Record of Appeal.

It was on the strength of the above pieces of evidence, both oral and documentary, that the trial Oredo Magistrate Court had in its judgment delivered on 5/10/2018 convicted the Appellant for the offences of unlawful indecent assault and unlawful carnal knowledge and sentenced him to 10 years imprisonment with hard labor on each of the two Counts to run concurrently. See pages 61 – 83 of the Record of Appeal for the judgment of the Oredo Magistrate Court. On appeal to the Court below and upon hearing the appeal, the Court below delivered its judgment on 17/5/2019 in which it reviewed the entirety of the evidence led by the parties and upon a thorough consideration of the issues as argued by the parties came to the conclusion that the appeal by the Appellant lacked merit and same was dismissed whilst affirming his conviction and sentence by the trial Oredo Magistrate Court. See also pages 147 – 168 of the Record of Appeal.

I have taken time to reproduce and review the totality of the evidence as in the printed record. The onerous duty to prove the guilt of the Appellant beyond reasonable doubt is that fixed by law on the Respondent, and the Appellant carries no duty to prove his innocence as he is by law constitutionally presumed to be innocent until the contrary is proved by the Respondent.
In law, the essential ingredients of the offences with which the Appellant was charged seems fairly settled and happily the parties are ad idem as to these essential ingredients and the onerous duty on the Respondent to prove by credible evidence, whether direct or circumstantial or admissible confessional statement the guilt of the Appellant beyond reasonable doubt as required by law.

Now, both the Prosecutrix, who is the both the alleged victim and the only eye witness to the alleged incident, and the PW2, who was the first to come in contact with the Prosecutrix immediately after the alleged incident on 11/5/2018 are children and whose testimonies in Court are guided by Evidence Act 2011. By Section 209(1), (2) and (3) of the Evidence Act 2011, it is provided thus:
(1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.
(2) A child who has attained the age of 14 years shall, subject to Section 175 and 208 of this Act give sworn evidence in all cases.
(3) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection (1) of this Section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.”
By Section 175(1) of the Evidence Act 2011, it is provided thus:
“All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”
Thus, from the provisions of the Evidence Act 2011 as set out above, the rule and or principles guiding the testimony of and admissibility of evidence of a child can be summarized as follows, namely: 1. It must be shown that the child has sufficient intelligence to understand questions put to him; 2. That the child can give rational answers to those questions; 3. That the child has sufficient intelligence to justify the reception of his evidence; and 4. That the child understands the duty of speaking the truth.

At the trial Oredo Magistrate Court, both the Prosecutrix and the PW2, who are children, testified on oath and the question has been raised in this appeal whether their evidence is competent and admissible and can be relied upon to convict the Appellant? The learned counsel had contended that in so far as their evidence was given on oath and there is no record to show that the trial Magistrate Court administered the questions laid down by law to ascertain their suitability to given evidence on oath rather than to give unsworn evidence, their evidence was incompetent and inadmissible and having been relied upon by the trial Magistrate Court in convicting the Appellant, they are liable to be expunged and once expunged the conviction of the Appellant was bound to be set aside. On the other hand, it was contended for the Respondent that generally all person including the Prosecutrix and the PW2 are competent to testify in Court and that it is squarely within the discretion of the Court to allow children to testify on oath if it is satisfied that they understand the nature of an oath and the duty of speaking the truth and the consequences of lying on oath and that such discretion can be exercised with or without stating on record that the relevant questions have been asked. 

My Lords, to resolve the above diametrically opposing contentions, I shall pay close attention to the position of the law as have been stated in several decided cases of both the Apex Court and this Court with a view to drawing both inspiration and guidance for this seemingly thorny but actually well settled issue of law. Let me start with the views of the Apex Court on these contentions! In Peter V State (1997) 12 NWLR (Pt. 531) 1, one of issue raised by the Appellant was whether the Court of Appeal did not err when it upheld the finding of the trial Court that PW1, a 13 – Year Old Child, was a competent witness to give sworn testimony for the Prosecution in view of Sections 154(1) and 182(1) of the Evidence Act 2011, then Sections 155(1) and 183(1) of the Evidence Act Cap. 112 LFN, 1990, the Supreme Court had per Onu, JSC held inter alia thus:
“It was right for the learned trial Judge in the instant case to ab initio cause the witness to be sworn since at 13 years, she would reasonably be expected to understand the questions put to her and to understand the nature of an oath even though she would still be considered a person of tender age by judicial interpretation… This is why perhaps, it is also settled, that if a trial Judge believes the sworn evidence of a child, he is entitled to act on that testimony alone just as if it is a sworn testimony of an adult. In view of the above, the fact that the PW4 gave sworn testimony does not, without more, render the evidence of PW4 worthless…Also, by this provision, the record must show that the child is capable of understanding the nature of telling the truth. However, from the record of the lower Court, the Appellant was well represented by Counsel and yet he raised no objection to the administration of the affirmation on the PW4, which in view of the provision of Section 209(1) supra is an irregularity. It is the duty of Counsel to raise an objection to any irregularity in the conduct of proceedings and especially so when it is clear that a particular step ought not to have been taken or done. In the instant case, the witness, 13-year-old Fatima Mohammed, gave evidence under affirmation without any objection whatsoever from Counsel, and as her age does not necessarily import an incapability to understand the nature of an oath or any other form of incompetency, the Section relied upon to attack the proceedings is, in my view, unavailing. In addition, the Appellant’s Counsel was afforded the opportunity and he did cross-examine the witness on her evidence. Therefore, no miscarriage of justice has been shown to have been occasioned by this irregularity, which miscarriage of justice could have rendered the evidence of the PW4 worthless or led to the vitiation of the trial. The evidence therefore was rightly admitted and justly utilized by the trial Court.”
Earlier in John Okoye V. The State (1972) LCN – 1279(SC), on the position of the law in relation to sworn testimony of a child in the light of the questions as envisaged under the Evidence Act for a trial Court to enquire into before allowing or disallowing a child from giving sworn testimony, the Supreme Court had per Irikefe JSC (as he then was but later CJN) stated inter alia thus:
“… The trial judge is not bound under Section 183 (1) of the Evidence Act, 2004 to hold and record a preliminary inquiry on the competence of a child to take an oath, if the Court is of the opinion that the child is capable of understanding the nature of an oath.”

Now, charity it is said at common parlance begins at home but when it comes to the law and decisions of Courts, we at the level of this Court know that charity must begin upstairs before returning home and that is why I had commenced this analysis with the decisions of the Apex Court and with that done, now I can return home to the decisions of our Court. In Umar V. State & Anor (2020) LPELR – 50442(CA), this Court had considered the issue of evidence of a child and stated inter alia thus:
” … Firstly, the contention of the Appellant is that by Section 209, a child under the age of 14 cannot in law give sworn testimony. In other words, that the evidence of the PW4 must conform with Section 209(1) of the Act…..However, before this provision of Section 175(1) of the Evidence Act 2011……Thus, Section 175(1) (supra) makes every person competent to testify subject to any obstacle or impediment that can militate against any person from understanding questions put to him or her by reason of the said witness being a minor, being of extremely old age, suffering from disease, whether of body or mind. Although the witness in this matter was a minor at the time she testified on oath, the Record shows that she was affirmed. What this means is that the trial Court considered PW4 as a person of sound mind that understood the import and implication of testifying on oath. The demand of the law under Section 209(1) of the Evidence Act that the trial Judge shall ask the child witness under the age of 14 preliminary questions to test his ability or intelligence to answer questions and weigh whether such a child witness understands the implication of speaking the truth, is within the discretion of the trial Judge and in his considered opinion…”
Flowing from the above decisions, it seems fairly well settled, as it appears so to me, that in law the issue under Section 209 (1) and (2) of the Evidence Act 2011 in relation to test of competence of a child witness is neither always mandatory nor sacrosanct in that a trial Court is not under any obligation to determine the competence of a child unless it is challenged by the other party. Thus, unless on the record it is shown that a challenge by way of an objection was raised against the taking of sworn testimony of a child, a trial Court is neither bound nor under a duty or obligation to first determine by way of administering those questions as envisaged under the Evidence Act 2011 before allowing a child to testify on oath. See Okon V. The State (1988) ANLR 173 @ p. 186, where the Supreme Court had per Agbaje JSC, pronounced emphatically inter alia thus:
“Since all persons are competent to testify, until the competence of a witness to testify is challenged for any of the reasons stated in the Section there is in my view no obligation on the Court to determine the competence of a witness to testify.”
Now, all that Section 175(1) of the Evidence Act 2011 provides for and envisages is the satisfaction of the trial Court that a child witness can testify on oath being part of the ‘all persons’ as provided in Section 175(1) of the Evidence Act 2011 unless the trial Court considers that the child is prevented from understanding the questions put to them or from giving rational answers to those questions and there is in my view no requirement that such a determination, squarely and entirely within the discretion and wisdom of the trial Court as to how it goes about it, must be expressed on the record, and failing which it would be deduced that such considerations were not made as the learned counsel for the Appellant had so vehemently but furtively contended in this appeal. I am of the view therefore, and I so firmly hold that there is nothing on the record to preclude or disqualify the Prosecutrix and the PW2, admittedly children, from giving evidence on oath before the trial Oredo Magistrate Court as they did and thus, their evidence suffered neither any incompetence nor inadmissibility by reason merely of their young age to their giving evidence on oath by the Appellant and or his counsel at the said trial. See Okon V. The State (1988) ANLR 173 @ P. 186. On the welter of opinion of the apex Court and this Court, therefore, there is nothing wrong in the trial Magistrate Court admitting the sworn testimonies of the Prosecutrix and PW2 in the absence of any objection under Section 209 (1) of the Evidence Act 2011 from the Appellant and or his counsel. Thus, not only were the sworn testimonies of the Prosecutrix and PW2 competent and admissible in evidence, it has not also been to have occasioned any miscarriage of justice to the Appellant who was duly represented by a Counsel and who never objected to the reception of their evidence under oath. See Sections 175 (1) and 209 (1) of the Evidence Act 2011. See also Umar V. State & Anor (2020) LPELR – 50442 (CA); Peter V State (1997) 12 NWLR (Pt. 531) 1; Obi V. State (2016) LPELR – 40543(CA) 18-24; John Okoye V. The State (1972) LCN – 1279 (SC); Okon V. The State (1988) ANLR 173 @ p. 186).

Having held as above, let me now consider the totality of the evidence as led by the parties to see if the Respondent proved its allegations against the Appellant beyond reasonable doubt as required of it by law. I have taken time to review the evidence as in the Record of Appeal, and which I had earlier in this judgment set out on in great details and it does appear to me that the evidence of the Prosecutrix, which I am aware must be corroborated before it can be relied upon against the Appellant, was credible and remained unshaken despite the rigorous cross-examination she was subjected to by the learned counsel for the Appellant as accused person before the trial Oredo Magistrate Court. I have also considered the evidence of the PW2 and I find that she was also not shaken at all under her cross-examination. It follows therefore, the trial Oredo Magistrate Court was right to have believed them but yet both the Prosecutrix and the PW2 are children and whose evidence by virtue of Section 209 (3) of the Evidence Act 2011 must be corroborated before it can be used and or relied upon by the trial Oredo Magistrate Court.

I am aware that when the law requires that there must be corroboration, the evidence of another witness whose evidence also requires corroboration will not qualify as corroboration. In other word, two witnesses, such as children, whose evidence requires corroboration in trial for offences as laid in Counts 1 and 2 in the instant appeal, cannot corroborate each other’s evidence. Thus, were there any evidence outside of the evidence of the Prosecutrix and the PW2 on which the trial Oredo Magistrate Court relied as corroboration of their evidence in convicting the Appellant under Counts 1 and 2? I think there were abundant corroborative evidence ranging from the findings in Exhibit E by PW6 that the hymen was no longer intact in a child of 10 years to the credible direct evidence of the PW4, the Aunt to the Prosecutrix who saw the bruises and semen in the vagina of the Prosecutrix immediately after the alleged incident on her return home from the shop. It has been contended for the Appellant that the evidence of the Respondent was filed with inconsistencies which created serious doubts that should be resolved in his favor. I have looked at the entirety of the evidence as in the records and save some discrepancies as to the date and time of the alleged incident in the narration of the Prosecutrix and the PW2, which I find to be very minor discrepancies, I do not see or find any major or substantial inconsistencies and or contradictions in the case as presented by the Respondent against the Appellant. See Boniface Adonike V. The State (2015) SC 168, where the Supreme Court had reiterated inter alia thus:
“Where there are differences in the narration of events by Prosecution witnesses, especially as to recounting or recollecting the date or events, which are mere discrepancies that would not avail the accused person, because some or such discrepancies are expected as being natural.”
See also Iortim V. State (1997) 2 NWLR (Pt. 490) 711 @ pp. 728 – 729; Egwumi V. State (2013) 13 NWLR (Pt. 1372) 525; Galadima V. State (2017) 14 NWLR (Pt. 1585) 187; Boniface Adonike V. The State (2015) SC 168; Golden Dibie & Ors V. The State (2007) 3 SCNJ 160; John Ogbu & Anor V. The State (2007) 2 SCNJ 319.

At this stage, it is clear that the Respondent had made out a serious case, at least on prima facie basis, of the alleged offences against the Appellant that requires his defense. The Appellant defense was twofold, namely; complete denial and alibi. He stated that he was at the place of DW1 at the time of the alleged offence and therefore, it was impracticable if not impossible for him to have committed the alleged offences. DW1 testified and stated that it is true that the Appellant was in her house on 11/5/2018 between the hours of 11am to pray with them and 6pm when he left to attend the evening Mass. The defense of alibi raised and relied upon by the Appellant at the trial has been defined simply to mean ‘elsewhere’. The duty is on the accused person not only to raise it at the earliest opportunity but also to give adequate and detailed particulars of the alibi to enable the Police investigate it, failing which it would really be of no moment if the Police had no detailed particulars and therefore, had nothing to investigate in it. See Black’s Law Dictionary, 9th Edition @ p. page 84.
In Patrick Njovens & 8 Ors V. The State (1973) 5 SC 12 @ p. 47, the Supreme Court considered the defence of alibi and had stated emphatically inter alia thus:
“There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is a flexible and verifiable way of doing this. If the prosecution adduces sufficient evidence to fix the person at the scene of the crime at the material time, surely his alibi is thereby logically and physically demolished.”
In James Badung V. COP Plateau State Command (2019) LCN – I12851(CA), this Court had stated inter alia thus:
“Where an accused person has unequivocally raised the defence of alibi that he was somewhere else other than the locus delicti at the time of the commission of the offence with which he is charged, he must give some facts and circumstances of his whereabouts for the Prosecution to be duty bound to investigate the alibi set up, to verify its truthfulness or otherwise… In law, the defence of alibi cannot succeed where an accused person is miserly in giving particulars of his whereabouts and in whose company he was but merely states that he was not at the scene of the crime. He is bound to give the lead and particulars of his where about at the earliest opportunity which will assist the Prosecution in their investigation of the alibi as the Police is not expected to go on a wild goose chase in order to investigate an alibi.”
It is also important to note that in law when the main defence of an accused person is an alibi, then great care must be taken by the trial Court in relying on the identification by a single witness and the facts of such identification must be carefully dealt with in the summing up and review of the totality of the evidence led by the parties. See Idemudia V. The State (2015) 17 NWLR (Pt.1488) 375 @ P. 396 per Ogunbiyi JSC. This is why, in criminal trials, since the liberty and in some cases the life of the accused may be on the line, the Court will not allow a defence no matter how improbable or stupid to go uninvestigated once it raises a reasonable doubt in the Prosecution’s case, and where a reasonable doubt is raised in a criminal proceeding as to the guilt of the accused the doubt must be resolved in favour of the accused person. See Opayemi V. The State (1985) 2 NWLR (Pt. 5) 101 @ P. 103. The Appellant made three statements at different times to the Police, namely: on 15/5/2018, 17/5/2018 and 22/5/2018 and of these three statements the statement made on 15/5/2018 is clearly and certainly both the first and earliest opportunity after the incident and upon his arrest, and in which he had stated inter alia thus:
I, BENJAMIN UZOMA (Male) having been duly caution in English Language that I am not obliged to say anything unless I wish to do so but whatever I say shall be taken down in writing and may be given in evidence… I know the complainants of this case. They are people I pray for since January last year. I did not go to the house on that day of the alleged act. I did not sleep with Deborah. I did not buy Deborah gala or nutri milk the said snack. I did not bring any lynon to their house, and I did not come with any other harmful material. I advised the family to take the girl to the hospital for proper DNA evidence. Signed: 15/5/2018. See page 105 of the Record of Appeal.
Now, it was not until after his release on bail and he being later re-arrested by the Police that in his third statement to the Police made on 22/5/2018 that he stated that he was with and at the home of the DW1 on the date of the incident, on 11/5/2018, and therefore, could not have and did not commit the alleged offences against the Prosecutrix. In counter to this statement, there was the credible and believed evidence of the Prosecutrix and the PW2 fixing the Appellant at the home of the Prosecutrix on 11/5/2018 and this evidence was not shaken at all. So, did the defense of alibi avail the Appellant and was the trial Oredo Magistrate Court right or wrong when it rejected the Appellant’s defense of alibi and was the Court below right or wrong when if affirmed the trial Oredo Magistrate’s Court rejection of the Appellant’s defense of alibi? The defense of alibi is based on the physical impossibility of an accused person’s guilt by placing him in a location other than the scene of the crime at the relevant time. Thus, for a successful plea of alibi it is not enough to merely plead the defence of alibi but the law requires the accused person relying on alibi to make such plea timeously and with details and particulars of his whereabouts to the Police for same to be investigated.
This clearly, as can be seen in his statement made to the Police on 15/5/2018, the Appellant did not and therefore, having not given the Police any detail particulars of his whereabouts on 11/5/2018 when he made his statement on 15/5/2018 to the Police, the subsequent detail given on 22/5/2018 after he had been granted bail and re-arrested by the Police was, in my finding, mere afterthought designed by the Appellant to inaugurate a false defense of alibi. To hold otherwise would have amounted to sending the Police on a wild goose chase as at 15/5/2018 to investigate his alibi given at the earliest opportunity without any particulars of his whereabouts. At any rate, with the credible and unshaken evidence of the Prosecutrix and the PW2 firmly fixing the Appellant to the scene of crime on 11/5/2018, which evidence both the two lower Courts believed and which I too believe the defense of alibi is uprooted and utterly destroyed. Thus, even its non-investigation is of no moment and would go to no issue! See Patrick Njovens & 8 Ors V. The State (1973) 5 SC 12 @ p. 47. See also Archibong V. State (2006) 14 NWLR (Pt. 1000) 349; Ibe V. the State (1992) 5 NWLR (Pt. 244) 642 @ p. 649; Adetola V. The State (1992) 4 NWLR (Pt. 235) 267 @ p. 267; Umani V. The State (1988) 1 NWLR (Pt. 70) 274; Awopejo V. State (2001) 92 LRCN 3187; Balogun V. AG Ogun State (2002) LCN 3286; James Badung V. COP Plateau State Command (2019) LCN- I12851(CA).
In the circumstances therefore, the defense of alibi does not avail the Appellant as it was destroyed, did not even exist and was also not made out by the Appellant and thus the two lower Court were right to have rejected the afterthought defense of alibi as raised by the Appellant. The wishy washy and baseless evidence of the DW1 is hereby also rejected. I hold that the Respondent proved by credible and unassailable evidence the guilt of the Appellant on both counts 1 and 2 and he was therefore, rightfully convicted as charged by the trial Oredo Magistrate Court and which judgment was also rightly affirmed by the Court below. Indeed, upon a conviction for the offence under count 2 alleging unlawful carnal knowledge, the offence under count 1 alleging indecent assault, though also distinctly proved by the Respondent, is automatically proved too. See Eze V. State (2019) LPELR – 47984(CA), where this Court had unequivocally stated inter alia thus:
“The offence of indecent assault is a kindred offence to that of defilement and the ingredients are embedded in the actual charge. I am of the opinion that at the conviction for the offence of rape, the trial judge ought to know that the offence of indecent assault is accordingly established.”

In law, an appellate Court has no business interfering with the correct concurrent finding of both the trial Court and an appellate Court affirming the same and this is so even where the reason adduced and relied upon by the two lower Courts to arrive at the correct findings turns out to be wrong. 

See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46. In the light of all I have found and stated above, issues one and two for determination are hereby resolved against the Appellant in favor of the Respondent.

ISSUE THREE
Whether the sentence imposed on the Appellant by the trial Oredo Magistrate Court and affirmed by the Court below was not excessive?

APPELLANT’S COUNSEL SUBMISSIONS
On issue three, learned counsel for the Appellant had submitted, in the unlikely event that issues one and two are resolved against the Appellant, that the term of imprisonment imposed on the Appellant without an option of fine was excessive and contended that the Appellant was a first time offender without any record of any previous brush with the law and since the first purpose of punishment of a criminal offender is to reform him and not to destroy or ruin him the trial Magistrate Court ought not to have sentenced him to a term of imprisonment without an option of fine and the Court below ought not to affirm such an excessive sentence and urged the Court to so hold and to intervene as the appellate fountain of substantial justice to reduce the sentence imposed on the Appellant by the trial Magistrate Court and affirmed by the Court below. Counsel relied on Ekpenyong V. The State (1967) All NLR 285; Gana V. The State (1968) 1 All NLR 465; Osayomi & Ors V. The State (2007) NWLR (Pt. 1015) 352 @ p. 381; Kayode V. The State (2008) 1 NWLR (Pt. 1068) 281 @ p. 305; Tanko V. The State (2009) 4 NWLR (Pt.1131) 430 @ p. 457; Omothemi V. COP (1979) Vol. 2 FNLR 232 @ p. 233.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue four, learned counsel for the Respondent had submitted that the law on sentencing is that where a statute imposes a minimum sentence of a term of years of imprisonment for an offence, it gives a trial Court the discretion to sentence an offender convicted of the offence to imprisonment for the minimum term of years and upwards and contended that similarly, where a Statute provides that an offender shall be liable to a particular term of years of imprisonment, it gives the trial Court a discretion to impose a term of imprisonment ranging from one day to the specific term of years and urged the Court to hold that an appellate Court will not interfere with the sentence imposed by a trial Court unless it is manifestly excessive in the circumstances or wrong in principle and not to interfere with the obviously lenient term of imprisonment imposed on the Appellant by the trial Magistrate Court and affirmed by the Court below. Counsel relied on Eliya & Anor V. State (2020) LPELR-50318(CA); Apamadari V. State (1997) 3 NWLR (Pt. 493) 304; Tanko V. State (2009) 4 NWLR (Pt. 1131) 430; Abiodun V. Federal Republic of Nigeria (2018) LPELR –43838(SC); Iortim V. The State (1997) 2 NWLR (Pt. 490) 711, Omokuwajo V. Federal Republic of Nigeria (2013) LPELR – 20184(SC), Eromosele V. Federal Republic of Nigeria (2018) LPELR – 43851(SC).

It was also submitted that the maximum punishment as stipulated by the law for the offence with which the Appellant was convicted is Life imprisonment but the trial Magistrate Court had in exercise of its discretion and out of great leniency sentenced the Appellant to ten years imprisonment with hard labor and contended that in the light of the grave and prevalent nature of the offences with which the Appellant was convicted and as found rightly by the Court below, the sentence of ten years with hard labor and without an option of fine was neither excessive nor oppressive and urged the Court to so hold since the sentence was in accord with laid down laws and principles on sentencing and to dismiss the appeal and affirm the very lenient sentence imposed on the Appellant. Counsel relied on David V. Commissioner of Police (2019) 2 NWLR (Pt. 1655) 178; Amadi V. FRN (2011) Vol. 9 LRCNCC 177 @ pp. 179 – 180; Afolalu V. The State (2011) Vol. 10 LRCNCC 30 @ P. 40.

RESOLUTION OF ISSUE THREE
My Lords, issue three deals exclusively with the exercise of discretion by the Court below on sentencing upon conviction for offences as to whether it was exercised judiciously and judicially as required of it by law. However, discretion must be exercised with reference to the established facts and never whimsically without any regards to the circumstances of each case where a Court is called upon to exercise its discretion and once exercised judiciously and judicially, it cannot and ought not to be interfered with even by an appellate Court. See The Vessel MT. Sylla & Anor V. Ghana Commercial Bank Ltd & Ors (2021) LPELR – 54556 (CA), per Georgewill JCA.

In the instant appeal, the Appellant was sentenced to ten years imprisonment with hard labor and without an option of fine for an offence with the maximum penalty upon conviction of life imprisonment under Section 218 of the Criminal Code. It is this very lenient sentence that has been vehemently contended to excessive and should be reduced because the Appellant is a first offender and without any previous criminal record yet here is a man in a position of spiritual authority over the PW1, grandmother of the Prosecutrix and well received in their home as a man training to become a Catholic Priest and turning round as the proved evidence has shown to prey on a child of ten years, the granddaughter of a woman who took him as ‘her spiritual father’, quoting her own very words in her evidence. In law, a trial Court has discretion in matters of sentence to be imposed upon conviction for a crime where the law does not provide for a mandatory sentence. However, as with every form of discretion, it must be exercised judicially and judiciously. A trial Court must not and cannot impose any sentence in excess of that provided by law, though it can in the exercise of its discretion impose a lesser sentence than that provided by the law having regard to the facts and circumstances of the case before it, but in all cases of exercise of its discretion in matters of sentencing, it is desirable that a trial Court should state in its judgment the factors that influence its decision. See Iortim V. State (1997) 2 NWLR (Pt. 490) 711 @ p. 733. See also Emenegor V. State (2010) All FWLR (Pt. 511) 884 @ p. 936.
In the judgment of the Court, it considered the reasons that impelled the decision of trial Oredo Magistrate Court in passing the sentence and came to the conclusion that the sentence imposed, given the circumstance of the case and the reasons given were not excessive and therefore, saw no reasons to disturb it. See pages 167 – 168 of the Record of Appeal. I have calmly reviewed the submissions of counsel to the parties, and considered the facts and circumstances of this case as well as the reasons adduced by the trial Oredo Magistrate Court and I am of the view, that, taking into consideration the rather aggravating circumstances of this case involving such a breach of the trust of the grandmother of the Prosecutrix reposed in the Appellant she took as her spiritual father, the trial Ordeo Magistrate Court was most lenient in the sentence of mere ten years imprisonment imposed on the Appellant had almost destroyed the life of that tender young child of ten years. See David V. Commissioner of Police (2019) 2 NWLR (Pt. 1655) 178; Amadi V. FRN (2011) Vol. 9 LRCNCC.
In law where a statute imposes a minimum sentence of a term of years of imprisonment for an offence, it gives a trial Court the discretion to sentence an offender convicted of the offence to imprisonment for the minimum term of years and upwards. Similarly, where a statute provides that an offender shall be liable to a particular term of years of imprisonment, it gives the trial Court a discretion to impose a term of imprisonment ranging from one day to the specific term of years. Therefore, once the sentence imposed by a trial Court is not manifestly excessive in the circumstances or is not based on wrong in principle, an appellate Court will not interfere. 

See Eliya & Anor V. State (2020) LPELR – 50318(CA); Apamadari V. State (1997) 3 NWLR (Pt. 493) 304; Tanko V. State (2009) 4 NWLR (Pt. 1131) 430; Abiodun V. Federal Republic of Nigeria (2018) LPELR – 43838 (SC); Iortim V. The State (1997) 2 NWLR (Pt. 490) 711, Omokuwajo V. Federal Republic of Nigeria (2013) LPELR – 20184 (SC), Eromosele V. Federal Republic of Nigeria (2018) LPELR – 43851 (SC). In the light of all the above, issue three is hereby resolved against the Appellant in favour of the Respondent.

On the whole therefore, having resolved issues one, two and three for determination in this appeal against the Appellant in favour of the Respondent, I hold that the appeal lacks merit and is liable to be dismissed. Consequently, it is hereby so dismissed.

In the result, the judgment of the High Court of Edo State, Coram: U. I. Erameh J., sitting in its appellate jurisdiction in Appeal No. B/1CA/2019: Benjamin Uzoma V. Commissioner of Police delivered on 17/5/2019, wherein the judgment of the learned Chief Magistrate Court, Coram: Mrs. J. O. Ejale (Special Grade) sitting at the Oredo Magistrate Court, Family Division, in Charge No. MOR/108C/2018: COP. V. Benjamin Uzoma delivered on 5/10/2018, in which the Appellant was convicted for the offences of unlawful indecent assault and unlawful carnal knowledge punishable under Sections 222 and 218 of the of the Criminal Code, Cap. 48 Vol. II, Laws of the defunct Bendel State of Nigeria, 1976 now applicable in Edo State and was sentenced to 10 years imprisonment with hard labour without option of fine, was affirmed is hereby further affirmed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead judgment articulated by his Lordship Sir Biobele Abraham Georgewill, JCA, dismissing this appeal and affirming the decision of the lower Court which affirmed the trial Court’s decision.

l too think that the evidence of the prosecutrix and the PW1, also a child had been corroborated by the evidence of PW2 that fixed the Appellant at the home of the prosecutrix on 11th May, 2018.

Other corroborative evidence in the nature of the injury on the private part of the prosecutrix and presence of semen thereon as testified by PW4, the Exhibit ‘E’ and its maker, the PW6 (Medical Doctor) showing that the hymen was not intact though there could be a natural process of rupture. The “unnatural” rupture had been confirmed by the bruises and deposits therein, and having strengthened the evidence of the prosecutrix and the PW2 – all being children, under 14 years of age.

Sufficient corroboration to found reliance thereon for a conviction permissible pursuant to Section 209(3) of the Evidence Act, 2011 ensured in favour of the Respondent’s case.

My Lord in the lead, had stated the facts and evidence led so comprehensively and applied the principles of law governing the offences of indecent assault and defilement and unlawful carnal knowledge so aptly that I adopt same and agree with the conclusion reached that on the evidence led, the dual offences had been proved and the complaint on the conviction and sentence as upheld by the lower (High Court) Court has no merit.
Appeal is dismissed.

FREDERICK OZIAKPONO OHO, J.C.A.: I had a preview of the judgment just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA and I am in agreement with his reasoning and conclusions in resolving issues one, two and three for determination against the Appellant and consequently holding the appeal lacks merit and its accordingly dismissed. I abide by the consequential orders.

Appearances:

O. T. Okeke, Esq., Registered Pro Bono Lawyer with Legal Aid Council of Nigeria For Appellant(s)

Mrs. R. O. Oaihimure SSC MOJ Edo State For Respondent(s)