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IN THE COURT OF APPEAL OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

ON MONDAY, THE 17TH DAY OF JULY, 2023

BEFORE THEIR LORDSHIPS:

FESTUS OBANDE OGBUINYA JUSTICE, COURT OF APPEAL

FREDERICK OZIAKPONO OHO JUSTICE, COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL

APPEAL NO: CA/LAG/CR/634/2022

BETWEEN

ABIODUN OLUWASEYI MATHEW --------------- APPELLANT

AND

THE STATE OF LAGOS ---------------------------- RESPONDENT

JUDGMENT

(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)

The Defendant/Appellant was arraigned before the High Court of Lagos State, Ikeja Judicial Division (hereinafter referred to as the lower Court), on a single count Information for the offence of Sexual Assault by Penetration contrary to section 261 of the Criminal Law, Ch. C17, Vol. 3, Laws of Lagos State, 2015. The Particulars of the Offence was given as follows:

“Abiodun Oluwaseyi Mathew (M) on or about 23rd day of March, 2019 at Women Society Nursery and Primary School, University of Lagos, Akoka, Lagos, in the Ikeja Judicial Division, sexually assaulted one Adetutu Arewa (F), aged 4 years, by penetrating her vagina with finger.”

The Defendant/Appellant pleaded not guilty to the charge. During trial, both the Prosecution/Respondent and the Defendant/Appellant respectively called four witnesses and tendered some exhibits. At the conclusion of the trial, learned counsel for the Defendant and that of the Prosecution filed final written addresses which they adopted as their respective submissions. In a judgment delivered on 10th February, 2022, the learned trial Judge, Hon. Justice A.O. Soladoye (Mrs.), found the Defendant guilty and convicted him accordingly. The Defendant was subsequently sentenced to life imprisonment.

Peeved by his conviction and sentence, the Appellant lodged this appeal vide a Notice of Appeal personally signed by him dated 25th April, 2022, and filed the same date. The Notice of Appeal was anchored on six grounds of appeal. The Appellant prayed for an order allowing the appeal, quashing the conviction and sentence and discharging and acquitting him.

The facts of the case leading to the arraignment of the Appellant can be summarized thus: The Appellant is the driver of a parent, whose two children are pupils of Women Society Nursery and Primary School, University of Lagos, Akoka, Lagos. He normally drops the children of his Boss at the school and return to pick them after closing. The Appellant also used to pick up his Boss’ children after closing from school together with other children in the class of the Prosecutrix after closing hours to take them to a Lesson Centre organized by the Prosecutrix’s Class Teacher, one Mrs. Madumere Charity. It was alleged that the Appellant penetrated the Prosecutrix vagina with his finger when he went to pick up his Boss’ children to Lesson Centre after closing hours inside Mrs. Madumere’s class at the Women Society Nursery and Primary School, University of Lagos, Akoka, Lagos, on or about the 23rd March, 2019. The Appellant was arrested on 25th March, 2019 when he went to the school to pick up the children of his Boss. He was arrested with three others including Mrs. Madumere, the Class Teacher of the Prosecutrix. This was sequel to a report lodged by Mr. Adebisi Arewa, the father of the Prosecutrix, who was informed by the Prosecutrix and her elder sister of what happened to her when he confronted her after she complained to her elder sister of experiencing painful urination.

In compliance with the procedural rules of this Court, parties to this appeal filed and exchanged written Briefs of Argument. Appellant’s Brief of Argument, settled by Abiye Tam-George, Esq., was filed within time on 29/08/2022, while the Respondent’s Brief, settled by Jubril Kareem, a Principal State Counsel, was filed on 19/05/2023 but deemed properly filed and served on 30/05/2023, shortly before the hearing of the appeal. In response to the Respondent’s Brief, the Appellant filed a Reply Brief on 25/05/2023 but deemed on 30/05/2023.

In the Appellant’s Brief, a sole issue was distilled for determination from the six grounds of appeal, couched thus:

Whether the Appellant's conviction and sentence to life imprisonment for sexual assault by penetration are not perverse, when the Prosecution totally failed to prove the charge against the Appellant beyond reasonable doubt, the absence of fair trial as well as the use of incredible evidence of the Prosecutrix.

The Respondent, on the other hand, also formulated a sole issue for determination, as follows:

Whether the learned Trial Judge was right to have convicted and sentenced the Appellant when the essential ingredients of the offence have been proved against him.

Appellant’s Argument

Learned counsel for the Appellant submitted that contrary to the finding of the learned trial Judge, there was no credible evidence directly implicating the Appellant to the commission of the offence charged. He contended that proof beyond reasonable doubt cannot be established when the testimonies of the Prosecution witnesses were inconsistent, contradictory and unreliable as well as when statutory procedures were not followed. Counsel noted that it is trite law that in criminal trials, the responsiblity of establishing the guilt of the accused beyond reasonable doubt rests squarely on the Prosecution, and to sustain a conviction, the Prosecution must prove all the essential ingredients of the offence, as the accused is not meant to prove his innocence, citing Adonike vs. The State (201) 7 NWLR (Pt.1458) 237@ 263. He argued that for the Prosecution to succeed in proving the one Count Charge of sexual assault by penetration contrary to Section 261 of the Criminal Law, Ch. C17, Vol. 3 of Laws of Lagos State 2015, for which the Appellant was charged, the following essential ingredients of the offence must be proved:

(a) That there was sexual assault by penetration perpetrated by the Appellant.

(b) That it was without consent of the person.
(c) That a preliminary intelligence test was carried out by the trial Judge to confirm that the child victim has sufficient intelligence and understand the duty of speaking the truth.
(d) That the evidence of the Prosecutrix is corroborated with material evidence implicating the Appellant.

Learned counsel maintained that there is nothing on the Record to show that the trial Judge complied with the provisions of section 175 (1), 208 (2) and 209 (1) & (3) of the Evidence Act before taking and acting on the evidence of the Prosecutrix. That the failure by the trial Judge to ascertain the credibility of the Prosecutrix to understand questions and give rational answers to them and whether or not she can testify on oath, amounts to reception of discreditable evidence upon which the conviction of the Appellant was based. On this submission, counsel cited the following cases: Onyegbu vs. The State [1995] NWLR (Pt.381) 510 @ 29; Sololá vs. State (2005) 5 NWLR (Pt.919) 644; Isaac Sambo vs. The State (1993) 6 NWLR (Pt 300) 399, where the Supreme Court held that the defendant could not be convicted on the basis of an "untested" evidence of a child. He also cited Ejike Okoye vs. C.O.P. (2015) AlI FWLR (Pt.799) 1101, and submitted that a coriviction reached without compliance with the statutory procedural requirement, as in the instant case, takes away the presumption of innocence of the Appellant and negates the principle of proof beyond reasonable doubt.

Making specific references to the evidence of the Prosecution witnesses, Appellant’s counsel argued as follows:

The evidence of PW1, the Prosecutrix’s Father, is hearsay as he was told everything by the elder sister of the Prosecutrix and by the Prosecutrix, which is not admissible in law, relying on Odogwu vs. State (2013) 14 NWLR (Pt.1373) 74 @ 103-104.
The evidence of PW3, the Medical Doctor, only talks of forceful blunt penetration of the Prosecutrix’s vagina and anus, by possibly a pennis, without linking the penetration to the Appellant.
The evidence of PW4, the IPO, during cross examination, is that he found, upon visit to the crime scene, that there was no such sexual occurrence to the victim as narrated to him by the victim’s classmates.
The only direct evidence is that of the victim, PW2, which, according to counsel, is full of material contradiction which renders it unsafe to convict thereon. He referred to the victim’s testimony under cross-examination, her narration during interview at the Medical Centre and her statement at the Police Station, which, according to him, are all full of material contradictions. Counsel also submitted that the evidence of PW2 that the Appellant used biro, pencil and cane at the same time in her vagina is a very disturbing and illogical testimony, for the simple reason that if that had happened, she would not have been able to walk home. Further, counsel argued that the evidence of PW2 that while the Appellant was penetrating her and she was shouting, her Father, who came to pick her did nothing, is ridiculous.
There was no corroboration of the evidence of the Prosecutrix as required by law.

Learned counsel for the Appellant accused the lower Court of not properly evaluating the evidence before it, in the light of the evidences of DW4 which was corroborated by PW4 that PW1 had previously accused three staff of the school of sexually assaulting his 5 and 7 years old daughters. He contended that the finding of the lower Court that the Prosecution has proved the offence of sexual assault by penetration against the Appellant, is not borne out by the evidence on record. The Court was urged to resolve the sole issue in favour of the Appellant in view of the inconsistencies and contradictions in the evidence of PW2, allow the appeal and set aside the conviction and sentence of the Appellant.

Respondent’s Argument

Learned Principal State Counsel for the Respondent submitted that under section 261 of the Criminal Law of Lagos State, the offence of sexual assault by penetration has the following ingredients:

That the anus, vagina, mouth or any other opening in the body of the victim was sexually penetrated.
That the penetration was done without the consent of the victim.

He submitted that the victim has identified the Appellant in Court as the person who penetrated her vagina with biro, pencil and cane, which caused her painful urination. Counsel referred to the evidence of the Medical Doctor who testified as PW3, that he observed that the hymen of the victim’s vagina was broken and that the lip of the vagina was skinny and red just as the surrounding of the urethra was also reddened, all suggesting forceful penetration by a blunt object, possibly a pennis. He submitted that the evidence of PW2, the victim and that of PW3, the Medical Doctor that examined her, showed clearly that the Appellant penetrated the victim’s vagina.

Learned Principal State Counsel contended that even though it is desirable that the evidence of the victim, a minor of 5 years at the time she testified before the lower Court, should be corroborated, but corroboration in the circumstances is not mandatory, contrary to the strenuous argument of the Appellant’s counsel, citing the case of Adenekan vs. State of Lagos (2020) LPELR-50406. In that case, this Court held that it is not the law that there must be corroboration of the evidence of the victim before the Court can convict for sexual offence. It was the submission of the Respondent’s counsel that the evidence of PW3 serves as corroboration of the evidence of PW2, as it supports the evidence of penetration of the victim’s vagina. That corroboration is not restricted to the evidence of a witness pointing to the Appellant as the person wo committed the offence, relying on Lucky vs State (2016) LPELR-40541 (SC). The Court was urged not to disturb the finding of the trial Court as the said Court has adequately evaluated the pieces of evidence led by the parties before finding and pronouncing the Appellant guilty of the offence charged.

On the submission of the Appellant’s counsel that the Respondent’s case is filled with inconsistency, Principal State Counsel submitted that the Appellant’s position is misconceived in that testimonies of witnesses are not expected to totally correspond or match with each other since the testimonies are not products of rehearsals performed by the witnesses. He contended that the contradictions alleged by the Appellant are not material and fatal as to affect the conviction of the Appellant, relying on State vs. Audu (2021) LPELR=56616 (SC); Jibrin vs. State (2021) LPELR-56233 (SC). Learned counsel also faulted the Appellant’s reference to the Medical Report annexed to the proof of evidence as same was not tendered in evidence, relying on the decision of the Supreme Court in Onwuta vs. State of Lagos (2022) LPELR-57962 (SC), where the apex Court held that proof of evidence in criminal proceedings serves the same purpose as pleadings in civil proceedings. That the facts therein are not evidence unless they are proved or established as legal evidence in the proceedings. The Court was urged to dismiss the appeal and affirm the conviction and sentence of the Appellant by the trial Court.

Resolution of the Appeal

In resolving this appeal, I will adopt the sole issue formulated by the Appellant, as follows:

The sole issue for determination deals with the question of proof of the single charge against the Appellant. The law has long been settled that in a criminal trial, the onus of proving the guilt of the Defendant is aways on the Prosecution, it never shifts. It is the duty of the Prosecution to lead evidence in proof of the essential ingredients of the offence charged, and the standard of proof required to discharge that duty is proof beyond reasonable doubt. Until that standard of proof is achieved by the prosecution, the presumption of innocence under section 36 of the Constitution will continue to inure to the Defendant. See section 135 of the Evidence Act; Okechukwu Nweze vs. The State (2017) LPELR-42344 (SC); The State vs. Gwangwan (2015) LPELR-24837 (SC); Ilodibe Uche vs. The State (2015) LPELR-24693 (SC); Abu Mohammed vs. the State (2020) LPELR-52451 (SC); Yohanna Danjuma vs. The State (2019) LPELR-47037 (SC). In the instant case on appeal, the Appellant was charged for Sexual Assault by Penetration contrary to section 261 of the Criminal Law, Ch. C17, Vol. 3, Laws of Lagos State, 2015. The Particulars of the Offence was given as follows:

Section 261 of the Criminal Law of Lagos State, 2015, under which the Appellant was charged provides:

“Any person who penetrates sexually, the anus, vagina, mouth or any other opening in the body of another person with a part of his body or anything else, without the consent of the person, commits a felony and is liable on conviction to imprisonment for life.”

From the wordings used in this section of the law, it can be deduced that the essential ingredients the Prosecution is expected to proof in order to sustain a conviction are as follows:

There must be sexual penetration of the anus, vagina, mouth or any opening of the body of the victim.
The penetration must be by a part of the body of the Defendant or any other object. It is necessary to proof the part of the body of the Defendant or the object used by the Defendant to penetrate the victim’s body opening
The penetration must have been without the consent of the victim, but where the penetration is against a minor, who is incapable of giving consent, proof of lack of consent is not necessary.
If penetration is proved, the Defendant must be shown to be responsible for the penetration.

The evidence of PW1, Mr. Adebisi Arewa, the Father of the Prosecutrix, other than the portion that he reported the matter to the school and to the Police and that PW3 examined his daughter when she was taken to the Medical Centre, constitute what he was told by the Prosecutrix and her elder sister. His evidence as it relates to the commission of the crime of penetration against his daughter allegedly by the Defendant is nothing but a bunch of damaging hearsay, as all that he said in relation to that were relayed to him by the victim and her elder sister. Hearsay evidence is secondary evidence of an oral statement made by another person which is best described as second-hand evidence. Under our jurisprudence, hearsay evidence is inadmissible and unreliable, and where it is wrongly admitted, it must be expunged or discountenanced at the time of writing judgment, as it has no weight at all in law. See Federal Republic of Nigeria vs. Mohammed Usman (2012) LPELR-7818 (SC); Olaiya vs. The State (2017) LPELR-43714 (SC).

The most relevant evidence for the Prosecution were the direct testimony of the victim and that of the Medical Doctor who examined her. They both testified as PW2 and PW3 respectively. As PW2, the Prosecutrix told the Court that the Appellant penetrated her bumbum with a biro, pencil and cane inside her class in the afternoon after closing from school, while waiting for her father to pick her up. She stated that the Appellant committed the offence in the presence of some other pupils were in the class, and that despite her shouting, the other pupils did nothing. At the time of the commission of the alleged offence, the PW2 was four years old but she was five years old at the time of her testimony in Court. She identified the Defendant in Court as the person who penetrated her vagina with biro, pencil and cane. Before looking at whether the evidence of PW3 provides the needed corroboration to the evidence of PW2, and also whether the evidence of PW2 has established the charge before the lower Court, I shall consider whether the lower Court has utilized and abide by the provisions of the law on taking and relying on the evidence of a child. Section 209 of the Evidence Act provides:

(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 virtue of section 209 (1) of the Evidence Act, before the Evidence of a child below 14 years can be received, the Court must satisfy itself that the child is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth. How then does the Court conduct this test? The Court conducts this test by putting some general questions to the minor with a view to determining whether he can understand the questions to be put to him and to give rational answers to them. The Court is also expected to test whether the child understands the duty of speaking the truth by asking him/her some questions about God and what will happen to a liar if he dies. After the two tests, the trial Court is expected to record its satisfaction that the minor understands not only questions put to him but also the duty of speaking the truth, before it can proceed to take the unsworn evidence of a child. There is nothing on the Record of Appeal to show where the lower Court indicated its satisfaction that PW3 could rationally answer questions put to her and understand the duty of telling the truth in the trial.

That apart, the provision of section 209 (3) is to the effect that no conviction shall be based on uncorroborated evidence of a child. The subsection mandates that there shall be some other material evidence in support of the evidence of a child implicating the Defendant. Learned Principal State Counsel referred to the evidence of PW3, the Medical Doctor, as providing the needed corroboration to the evidence of the child victim (PW2). PW3 testified that from examination of the victim, he found that her vagina was forcefully penetrated by a blunt object and that when the victim was shown a dummy penis she identified it as what the Appellant used to penetrate her vagina. The question is whether this piece of evidence has corroborated in material particular the evidence of PW2 and whether the evidence of PW2 itself together with the evidence of PW3 has proved the charge against the Appellant.
As stated by Rhodes-Vivour, JSC in Lucky vs. The State (2016) LPELR-40541 (SC), that corroboration is not restricted only to evidence of a witness pointing to the Appellant as the person who committed the offence, as sex is usually not performed in the presence of a third party. However, where the victim herself stated that the act was performed in the presence of some persons, as in the instant case on appeal, corroborative evidence from those persons is not only desirable but necessary, especially in the face of denial by the person accused of the commission of the offence. Here, the Prosecutrix stated in her evidence under cross examination that when the Appellant was penetrating her vagina with biro, pencil and cane, some of her classmates were present and did nothing despite her shouts. Those classmates were not called to corroborate the evidence of the Prosecutrix. We should also bear in mind that the offence was said to have been committed in broad daylight and in a classroom with some pupils present. To worsen the case of the Prosecution, the Investigating Police Officer (PW4) testified that when he visited the school during investigation, none of the pupils in that class confirmed the occurrence of the alleged offence in the class or in their presence, as narrated by the Prosecutrix. The evidence of the Medical Doctor that the hymen of the victim’s vagina was broken as a result of forceful penetration by a blunt object may be true, but that evidence is not consistent with penetration by biro, pencil and cane, though it may be consistent with penetration by a penis. Penetration by biro, pencil and cane, which is the direct evidence of the Prosecutrix, cannot be the same as penetration by a blunt object, like the penis. Therefore, the evidence of the Doctor (PW3) does not support the evidence of the victim. The two pieces of evidence are at the opposite side of one another, consequently, one cannot be corroborative evidence of the other. That is not all. There is yet another dimension to the charge and the evidence led.

The charge upon which the Appellant was convicted alleged that the Appellant penetrated the victim with his finger. The evidence of the victim that her vagina was penetrated with biro, pencil and cane, does not support the charge. In other words, the evidence of the victim did not align with the charge. Similarly, the evidence of the Doctor, which suggest penetration by a penis neither support the charge nor the evidence of the victim. The implication is that the evidence led in prove of the charge proved something else, not the charge. The prosecution’s duty in a criminal trial is to proof the guilt of the Defendant beyond reasonable doubt. Such proof can only be achieved by proving what the Defendant was alleged to have committed and not otherwise. The Prosecution cannot charge a person for the offence of penetration of a victim’s vagina with his finger and then lead evidence to show that the penetration was done by objects such as biro, pencil and cane. That is not the kind of proof required to sustain the specific charge against the Defendant. Such evidence cannot and does not prove the specific charge of penetration of the victim by a finger. The lower Court has failed in its duty of analyzing the evidence led vis-à-vis the charge before jumping to the conclusion that the charge has been proved against the Appellant.

There is material contradiction in the Prosecution’s evidence as to the object used in the penetration of the victim. The charge of penetration alleged the use of finger, while PW2 was emphatic that the objects used in penetrating her were biro, pencil and cane. Yet, the Medical Doctor suggested it was a penis and even stated that while he was interviewing PW2, she identified a dummy penis as the object that was used in penetrating her. In the face of this multifarious contradictions, a reasonable doubt ought to have arisen in the mind of the trial Judge, which doubt ought to have been resolved in favour of the Defendant. It is the law that when a Court is confronted with contradictory evidence from the same party, it cannot pick and choose which one to believe and which one to jettison. The entire evidence must be rejected as unreliable. See Kayili vs. Yilbuk & Ors (2015) LPELR-24323 (SC).

The absence of corroborative evidence, coupled with contradictions in the Prosecution’s evidence ought to have signal to the lower Court the danger of convicting the Appellant. For the reasons adumbrated in this judgment, I hold that the appeal has merit and is hereby allowed. Judgment of the High Court of Lagos State in Charge No: ID/9674C/2019 delivered on 10/02/2022, by Soladoye (Mrs.), J., is hereby set aside. The conviction and sentence passed on the Appellant are also set aside, and, in their place, I enter a verdict of discharge and acquittal.

MUHAMMAD IBRAHIM SIRAJO

JUSTICE, COURT OF APPEAL

APPEARANCES:

Abiye Tam-George for the Appellant.

Jubril Kareem, Principal State Counsel, for the Respondent.


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