IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON TUESDAY, THE 13TH DAY OF AUGUST, 2024
BEFORE THEIR LORDSHIPS:
JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL
FOLASHADE AYODEJI OJO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO: CA/LAG/CR/915/2022
BETWEEN:
PASTOR SOLOMON EZE ---------------------------- APPELLANT
AND
THE STATE OF LAGOS ------------------------------ RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA
At the Ikeja Division of the High Court of Lagos State, “the lower Court”, Coram: Ogunsanya, J., the Appellant herein, as the Defendant in Charge No: ID/2564C/2016, was arraigned on one count Information which reads thus:
STATEMENT OF OFFENCE - COUNT 1
Defilement contrary to Section 137 of the Criminal Law of Lagos State, 2011.
PARTICULARS OF OFFENCE
PASTOR SOLOMON EZE (M) on or about August, 2014, at No. 2, Arogbo lane, off Odunbaku Street, Ishaga, Agege, Lagos, in the Ikeja Judicial Division defiled one Isibor Charity by having sexual intercourse with her.
The Information dated 11th March, 2016 and found at page 5 of the Record of Appeal, “the Record”, was preferred by E.I. Alakija, (Mrs), the Director of Public Prosecution, on behalf of the Attorney General and Commissioner of Justice, Lagos State. The Information, together with the Proofs of Evidence, was served on the Appellant, who, upon arraignment on 22nd September, 2016, pleaded not guilty to the one-count charge.
At the trial, the Prosecution called a total of 3 witnesses and tendered some documentary exhibits in proof of its case, amongst which was the Medical Report dated 4th November, 2014 issued from a medical facility in Lagos. The Appellant, as the Defendant, also called a total of 4 witnesses, including himself, in defence of the charges preferred against him. At the conclusion of trial, learned counsel for the Defence and the Prosecution filed and exchanged final written addresses which they adopted as their respective submissions before the trial Court. In its considered judgment delivered on 17th March, 2022, copied at pages 150–164 of the Record of Appeal, the trial Court convicted the Appellant for the offence charged and subsequently sentenced him to a term of imprisonment for life.
FACTS OF THE CASE
Parties in this appeal rendered different versions of the facts of the case. I will reproduce, verbatim, versions from the respective Briefs of Argument of the parties, as told by them.
The Appellant, at pages 2-3 of the Appellant’s Brief of Argument, gave his account of events culminating into the present case thus:
Sometime in August 2014, the PW2 and PW3 were introduced to the Appellant by one Pastor Chucks as they were stranded and needed a place to live for a few days before getting a place of their own. PW3 informed the Appellant that she had an issue with a neighbour in her former house and her daughter, PW2 fell sick at this period. PW3 pleaded with the Appellant to allow her stay in the church as she was scared to return to the former house. The Appellant agreed to accommodate PW3 and her family in the church, as another family was also living in the church. The arrangement was for PW3 and her family to stay for only one week in the church premises, however, PW3 and her family ended up staying for more than a month at the Appellant's Church.
The Appellant discovered that PW3 lied to him about being a widow and their family was always littering the church premises and making trouble with the other family. Also, PW2 was always going out and coming back late, without any explanation as to her whereabouts.
After several cautions on the need to keep the church premises clean and tidy from the landlady of the premises and several members of the church, the church board resolved to send the two families resident in the church packing.
Sometime in September 2014, PW3 and her family alongside the other family were given four days interval to pack out of the church premises. After the four days, when none of the families complied with the deadline, the church board went into the church and packed all their belongings out of the church premises.
PW3 returned from work that Friday evening and met all her belongings outside the church, with her children and began causing a rancour and promised to make sure that the church shuts down.
On the 4th day of November 2014, the Appellant was in his church conducting counselling sessions with members of the church when a Police officer came to arrest him upon the allegations that he defiled PW2.
PW2 and PW3's allegations were that someday in August 2014, the Appellant on the guise that he wanted to conduct deliverance on PW2 invited PW2 to his office when no one else was in the church and gave her some red-like substance to apply on her face and holy water to drink. After drinking it, PW2 alleged that she felt weak and fell down but she saw the Appellant's hands on her breast.
PW2 stated that the Appellant threatened to kill her if she shouts or tell anybody and when she stood up she saw mucus and blood on her lap. She went back to her room and slept off without telling anybody, When PW3 came back, she met PW2 sleeping and decided not to disturb her.
PW3 alleged that after they were driven out of the Appellant's church some months after in November 2014, she discovered that PW2 was pregnant and after pleading with PW2 to tell her who was responsible, PW2 informed her (PW3) that the Appellant drugged her and had sex with her and promised to kill her if she tells anybody.
PW3 and PW2 made a complaint at Red House Police Station, Iju-Ishaga, Lagos State, where they were referred to Mirabel Centre to carry out a medical examination on PW2. The Appellant was subsequently arrested.
On the part of the Respondent, the fact of the case was stated in pages 3-4 of the Respondent’s Brief of Argument” as follows;
“... The Appellant under the guise of performing deliverance on the victim had carnal knowledge of her after giving her a substance to drink alleged to be 'holy water' to drink and directing her to apply the said 'holy water' on her face. The Victim thereafter found the Appellant on her and saw a substance like mucus and blood on her private part after the Appellant finished. The Appellant threatened the Victim not to report the incident to anyone if she does not want to die.
The evidence of the Medical Doctor and Medical Report of the medical examination the Victim was subjected to after the incident corroborated her story. The Appellant testified for himself and called three other witnesses but the Trial Judge believed the evidence of the Respondent's witnesses and convicted the Appellant for the offence of Defilement contrary to Sections 137 of the Criminal Law Cap. C17 Vol. 3 Laws of Lagos State, 2015 and sentenced the Appellant to Life Imprisonment”.
Both parties in the appeal agreed that the underaged Charity Isibor, stayed with her mother and another sibling in the Appellant’s Church located at No. 2, Aogbo Lane, off Odumbaku Street, Iju-Ishaga, Agege, Lagos State, for a period of time, and that the said Charity Isibor was found to be pregnant a short while after the family was sent out of the premises by the Church management for sundry reasons. The accusing finger was pointed at the Appellant, who was the presiding Pastor in the said Church, he was said to have defiled the said underaged while pretending to conduct a deliverance exercise on her, and he was arraigned on one count charge of defilement of the underaged contrary to section 137 of the Criminal Law of Lagos State, 2015, he was convicted for same and sentenced accordingly.
Being aggrieved with his conviction and sentence, the Appellant approached this Court by filing a Notice of Appeal on 15th June, 2022, premised on 3 grounds of appeal as reproduced at pages 166 – 169 of the Record of Appeal. The Appellant therein, sought for an order of this Court allowing the appeal, an order setting aside his conviction and sentence as well as an order discharging and acquitting him.
In line with the Rules of this Court regulating criminal appeals, parties in this appeal filed and exchanged respective Briefs of Argument. The Appellant’s Brief of Argument, settled by Adepeju Jaiyeoba, (Mrs), with Linda Okwe (Miss), and T.O Falowo (Miss), was filed on 19th December, 2022. The Respondent’s Brief of Argument, on the other hand, was settled by Jubril Kareem, a Principal State Counsel in the Attorney General's Chambers, Ministry of Justice, Lagos State. The said brief of argument was filed on 31st May, 2024. Both the Appellant’s and the Respondent’s Briefs were deemed as properly filed and served on 6th June, 2024 at the hearing of the appeal.
Three (3) issues were distilled for determination in the Appellant’s Brief of Argument, the issues are as follows:
On its part, the Respondent set down a sole issue for the determination of the appeal, to wit;
Whether the learned trial judge was right to have convicted the Appellant when the essential ingredients of the offences have been proved beyond reasonable doubt against him
APPELLANT’S SUBMISSION
In her argument on issue 1, learned counsel for the Appellant, Mrs. Jaiyeoba, contended that the lower Court erred when it placed heavy reliance on the medical report tendered in evidence by the Prosecution. It was stated that the evidence of the victim of the offence, PW2, must be corroborated before the lower Court could convict based on such evidence. Counsel cited the following cases in support; Mohammed vs. State (2018) 13 NWLR (Pt. 1635) 85 at 102, para B-C; Sambo vs. State (1991) 6 NWLR (Pt. 300) 399 at 419.
Counsel opined that for a piece of evidence to amount to corroboration, it must be cogent, unequivocal and sufficiently implicate the Appellant, relying on the case of Adonike vs. State (2015) 7 NWLR (Pt. 1458) 237 at 285 para C-F; N.A.S Ltd vs. UBA Plc (2005) 14 NWLR (Pt. 945) 421 at 434-435 and Orisadipe vs. State (2019) 13 NWLR (Pt. 1688) 24 at 55, Paras D-F; Ojo vs State (2021) 3 NWLR (Pt. 1764) Pg. 435 at 451, Oguno vs State (2013) 15 NWLR (Pt. 1376) Pg. 1. She noted that evidence on record revealed that the victim (PW2) and her mother (PW3) moved into the Church on the 21st August, 2014, while Exhibit P1 (a-e) showed that PW2 was 11 weeks and 5 days pregnant as of 4th November, 2014. Relying on the case of Edoho vs. State (2004) 5 NWLR (Pt. 865) 17 at 46, counsel submitted that the said medical report was inconclusive and that the victim, by simple computation of time, was a few weeks pregnant when they moved into the appellant's Church, thereby creating a reasonable doubt which ought to have been resolved in favour of the Appellant, citing FRN vs Iweka (2011) LPELR-9350 (SC). It was counsel’s argument that the lower Court failed to properly evaluate the evidence adduced by both parties before it before convicting the Appellant for the offence of defilement of PW2, while placing reliance on the cases of Adenekan vs State (2020) LPELR-50406(CA), Edwin vs. State (2019) LPELR-46896 (SC) Pp. 10-11 Paras D-E and R-Benkay (Nig.) Ltd. vs. Cadbury (Nig.) Plc [2012] 9 NWLR (Pt. 1306) 596 at 605. Counsel submitted that the findings of the learned trial Judge in this regard was perverse and had occasioned grave miscarriage of justice on the Appellant. She urged the Court to resolve the issue in favour of the Appellant.
On issue 2, learned counsel for the Appellant restated the settled law that in all criminal proceedings, the Prosecution has the burden to establish the guilt of an accused person, beyond reasonable doubt, citing Section 135 of the Evidence Act, 2011 and the case of Shande vs State (2005) All FWLR (Pt. 279) 1342 at 1357 amongst others. It was stated that presumption of innocence inures to the advantage of the Appellant as enshrined in Section 36 (5) of the 1999 Constitution, as amended, and that same does not include the requirement for the accused person to prove his innocence, citing the case of Okoh vs State (2014) LPELR-22589 (SC).
Counsel outlined the ingredients of the offence of defilement as highlighted by this Court in the case of James vs. State of Lagos (2021) LPELR-52456 (CA), which require the proof that the accused/Appellant had sexual intercourse with a child; that there was penetration into the vault of the vagina and that the evidence of the child victim must be corroborated. It was submitted, vide the cases of Oke Utuyorume vs. The State (2010) LPELR-4710 (CA); Nwosu vs. The State (1998) 8 NWLR (PL.562) 433 at 444 and Aigbangbon vs. The State (2000) 7 NWLR (PL.666) 686, that the ingredients of the offence of defilement were not proved against the Appellant beyond reasonable doubt.
Counsel stated that notwithstanding that the victim was a child when the incident occurred, the Prosecution failed to prove that the Appellant had sexual intercourse with the victim whose evidence was said to have been contradicted by her admission that another family lived together with them in the Appellant’s Church but denied same under cross-examination.
Counsel argued that the Medical Doctor who prepared Exhibit P1 (a)-(e) admitted that it was prepared while relying majorly on information from PW2 to arrive at the conclusion that PW2 was sexually assaulted. It was also submitted that the testimony of PW3 could not corroborate the evidence adduced by PW2 to convict the Appellant for defiling PW2. Counsel contended, vide the case of Okoro vs State (1998) 14 NWLR (Pt. 584) 181 at 215-216, Para H-A (SC), that PW3 was a tainted witness for trying to hide her identity as to what her profession was.
Learned counsel for the Appellant argued that the Prosecution failed to call in evidence the Investigating Police Officer who investigated the case when it was reported at the Police Station. She opined that the IPO, who visited the locus criminis, would have demonstrated to the lower Court, what the scene of the crime looked like. She cited the provision of Section 167 (d) of the Evidence Act, 2011 and the cases of Salawu vs State (2009) LPELR-8867 (CA) @ 42-43 Paras G-A, and Abdul-Rahaman vs. Commissioner of Police (1971) NNLR 24, to contend that the failure to call the IPO to testify was fatal to the Prosecution’s case. Relying further on the cases of State vs Nnolim (1994) 5 NWLR (Pt. 345) 394 at 406, Para C-D (SC) and State vs. Adu (2022) 7 NWLR (Pt. 1830) 461 at 535-536 (SC), counsel submitted that the evidence of the said IPO is vital and the refusal or failure of the Prosecution to call the IPO to testify amounts to withholding vital evidence which would have been unfavourable to the case of the Prosecution. The Court was urged to so hold. Counsel submitted in the circumstances that the lower Court failed to properly evaluated evidence tendered before it by the parties which failure led to a perverse judgment and occasioned a miscarriage of justice to the Appellant. The Court was urged to resolve issue 2 in favour of the Appellant.
The Appellant’s issue 3 borders on whether or not there existed contradiction in the case of the Prosecution at the lower Court. Appellant’s counsel argued that there were manifest contradictions in the case of the Prosecution which the lower Court ought to have resolved in favour of the Appellant.
It was argued, on the strength of the following cases- Dibie vs. State (2004) 14 NWLR (Pt. 893) 257 at 291, Para E-F (CA); Ogoala vs. State (1991) 2 NWLR (Pt. 175) 509; Robert vs. IGP (2021) 7 NWLR (Pt. 1775) 268 at 282, Para C-E (SC) and Dagayya vs. State (2006) 7 NWLR (Pt. 980) 637, that the Prosecution’s case was fraught with contradictory evidence at trial which goes to the root of the case in establishing the ingredients of the offence of defilement. Counsel reiterated the earlier submission with respect to the computation of time within which it would have been unlikely that the Appellant was responsible for the pregnancy relied on to ground the offence of defilement with which he was charged.
Counsel contended that the learned trial Judge misrepresented the Appellant’s evidence when she held that the Appellant did counselling at an office at the back of the Church from where he conducted his other businesses. The cases of Edoho vs. state (supra) and Okeke vs. State (1999) 2 NWLR (Pt. 590) 246 at 280- 281, Paras H-B (CA) were cited to submit that the lower Court’s duty does not include supplying the missing link in the case of the Prosecution as was done in the instant case. Counsel added that the lower Court ought to disregard the evidence of the prosecution witnesses for its material contradiction, relying further on the case of F.C.D.A vs. Nwanna [1998] 4 NWLR (Pt. 544) 73 at 89. Para D-E; Ikem vs. State (1985) 1 NWLR (Pt 2) 378. She urged the Court to resolve the issue in favour of the Appellant and consequently allow the appeal.
RESPONDENT’S SUBMISSION
Learned Principal State Counsel, Mr Jubril Kareem, in opening the Respondent’s submission in this appeal, contended that the learned trial Judge was right to have convicted and sentenced the Appellant. He noted that the Prosecution, in the lower Court, was able to prove its case beyond reasonable doubt against the Appellant. He also listed the ingredients that must be proved in order to secure conviction for the offence charged. He cited the cases of Boniface vs. State (2015) LPELR-24281 (SC); Onwuta vs. State of Lagos (2022) LPELR-57962 (SC); Adenekan vs. State of Lagos (2020) LPELR-50406 (CA) and submitted that the Prosecution was able to prove the guilt of the Appellant through the evidence of the Respondent's witnesses in the lower Court.
Counsel maintained that there was evidence before the lower Court that the victim was a minor at the time of incident, with her age put at 14 years by her and confirmed by her mother before and during trial.
Counsel added that the victim was able to identify the Appellant as the person who had sexual intercourse with her after he had directed her to drink a certain 'holy water' and applied same on her face. She later found blood and a mucus discharge on her private part after the Appellant had intercourse with her. It was also contended that the Report of the medical examination conducted on the victim also revealed she was pregnant as a result of the sexual intercourse the Appellant had with her, in view of which learned counsel urged the Court to hold that the essential elements of the offence of defilement were established against the Appellant beyond reasonable doubt.
Mr. Kareem contended, through the cases of Ogunbadejo vs. The Queen (1954) 14 WACA 458, Taiye vs. State (2018) LPELR-44466 (SC), that the Respondent successfully proved the charge against the Appellant in the lower Court beyond reasonable doubt, both through eye witness account of PW2 and the circumstantial evidence given in the medical report that indicated that the victim became impregnated from the assault by the Appellant. Learned counsel relied on the case of Nasiru v. State (2021) LPELR-55637 (SC) and submitted that the circumstantial evidence was logical, cogent and incompatible with the innocence of the Appellant. The Court was urged to so hold.
Learned Principal State Counsel cited the cases of Ude vs. State (2016) 14 NWLR (Pt. 1531) 122 at 158; Oluwatoyin vs. State (2018) LPELR-44441 (CA), to submit that the eye-witness account of the victim was direct, cogent, positive and uncontradicted, through which he urged the Court to hold that the Respondent was able to establish the essential elements of the offence against the Appellant beyond reasonable doubt, and that the lower Court rightly convicted the Appellant.
Mr. Kareem contended that the defence of the Appellant as to the timing of the pregnancy which did not pin him to the commission of the crime, cannot avail him as it was merely speculative, citing the decisions in Ogunye & Ors vs. State (1999) LPELR-2356 (SC); Orisa vs. State (2018) LPELR- 43896 (SC). Counsel submitted that the Appellant failed to call witnesses but rather had recourse to the written address which, on the strength of the case of Angadi vs. PDP & ORS (2018) LPELR-44375(SC), cannot take the place of evidence. He added that PW2, the victim of the offence gave the evidence when she was 16 years old hence needed no such corroboration as contended by the Appellant, he cited the case of Adenekan vs. State of Lagos (2020) LPELR- 50406 (CA) in support of the submission.
On the failure of the Prosecution to call the Investigating Police Officer, counsel submitted that the Respondent was not bound to call all the witnesses listed on its proofs of evidence in proving its case, relying on the case of Oguonzee vs. State (1998) LPELR- 2357 (SC). The decision in Idagu vs. State (2018) LPELR- 44343 (SC) was relied on by learned counsel to debunk the Appellant assertion that PW3, the victim’s mother, was a tainted witness.
On whether evidence of both PW2 and PW3 were contradictory, counsel restated the law that it is not every minor contradiction in evidence that matters, that a contradiction must be material for it to affect the case of the Prosecution, citing the cases of Kalu vs. State (1988) 4 NWLR (Pt 90) 503 SC; Ochemaje vs State (2008) 15 NWLR (Pt 1109) 57 and Ifedayo vs State (2018) LPELR-4437 (SC). It was surmised that there was no contradiction as to the residence of the victim and her mum as at the time of the incidence, urging the Court, in the circumstance to discountenance the submission of the Appellant thereon. The court was urged to affirm the conviction and sentence passed by the lower Court.
RESOLUTION
The sole issue distilled by the Respondent for the determination of this appeal, in my opinion, suffices to answer all the legal issues put forward by parties in the appeal. To this end, the said issue, id est; “whether the learned trial judge was right to have convicted and sentenced the Appellant when the essential ingredients of the offences have been proved against him”, shall be the fulcrum upon which the resolution of the appeal shall rotate. However, I will reframe the issue in the following words:
Whether the essential ingredients of the offence of defilement have been proved to warrant the conviction and sentence of the Appellant.
The facts of the case of the respective parties in the appeal had earlier been related upon, albeit, from the perspective of the parties themselves. I have equally endeavoured to bring out the salient points of divergence between the parties after reading the Record, including the judgment appealed against.
For emphasis, the case of the Prosecution at the lower Court was that the Appellant took advantage of, and defiled the then underaged victim, the PW2, who was, at the material time, housed in the Appellant’s Church together with her mother and siblings, an act which resulted in a pregnancy. The allegation of defilement was, however, roundly denied by the Appellant. After the conclusion of the trial at the lower Court, the learned trial Judge, in his considered judgment, copied at pages 150-164 of the Record, held that the ingredients of the offence of defilement were proved against the Appellant, hence his conviction and sentence.
The Criminal Law of Lagos State, 2015, provides in Section 137 thereof that-
Any person who has sexual intercourse with a child is guilty of a felony and is liable to imprisonment for life.
The law provides that “a child” has the meaning given in the Child’s Right Law of Lagos State, 2015, which is stipulated to be under the age of 18 years. See section 416 of the Criminal Law of Lagos State, 2015 and section 262 of the Child’s Rights Law of Lagos State, 2015. Besides, the offence of defilement is said to be completed when a trial Court is satisfied that the person defiled was under the age of 11 at the time the Appellant committed the act, and there must have been the penetration of the child's private part by the manhood of the Appellant. Further to that, the evidence of the child-victim should be corroborated by independent evidence. The foregoing are the ingredients that must be inclusively established for there to be a conviction for the offence of defilement. The Supreme Court in the case of Adonike vs. State (2015) 7 NWLR (Pt. 1458) 237, held that:
" .... To succeed, the prosecution must prove beyond reasonable doubt: (a) that the accused/appellant had sex with the child who was under the age of 11 years. (b) that there was penetration into the vault of the vagina (c) the evidence of the child must be corroborated. The evidence for defilement is the same as in rape except that for defilement it is immaterial whether the act was done with or without the consent of the child. This is the well-laid down position of the law, that a girl under the age of 11 is a child and so is not capable of consenting to sex. The Court would hold that she did not consent even if she did consent. A child cannot consent to sex, that is the position of the law."
See also Nwele vs. State (2019) LPELR-47956 (CA); James vs. State of Lagos (2021) LPELR-52456 (CA) (Pp. 56-58 paras. C-C).
The parties in the appeal agreed that the victim of the offence was a minor as at the material time of the incident. The victim, who testified as PW2 at the lower Court, with her mother, as PW3, gave uncontroverted evidence that the PW2 was 14 years of age at the time of the incident. Flowing from this uncontroverted evidence, I regard that arm of the requirements as been established.
The next ingredient is whether the Appellant had sexual intercourse with the victim by penetrating the vault of the PW2’s vagina or any of her bodily orifice with his penis. The evidence in chief of PW2, at pages 59-65 of the Record, goes thus:
“I got to know Apostle Solomon through my mum. On that fateful day Pastor Chucks introduced my mum, me and my siblings to Apostle Solomon Eze and that day he said a preaching that we should not go back to our house that there was an arrow of death and we should be living in the church. My mum agreed and my mum do go to work very early and comes back late at night. On that very day, I just finished taking my bath so I was petting my younger sister to go to bed a little time after was when Apostle Solomon called me to follow him to his office so I did and he told me that the deliverance is about to be done and so he brought a substance which he referred to as 'holy water' and further asked me to drink which I did and later told me to use the remaining substance on my face and I obeyed him. I felt weak after using the water and substance on my face, I was going down and the next thing was that I found myself on the floor and few minutes later I found Apostle Solomon on me, his hands were on my breasts and when he was done, I saw mucus and blood from my private part and he said to me that the making love thing should be between us that if anybody gets to know that myself, mother and family will all die”.
(Underlined and emboldened portion for emphasis).
This same line of story was repeated by the PW3, the victim’s mother, only with minor variation. On the question of whether the victim was sexually assaulted, the learned trial Judge found as follows;
“The testimony of PW2 is that she was sexually assaulted. Exhibit P1 (a)-(e) particularly the conclusion is as follows: "Young girl, crying, unhappy, anxious withdrawn with history of sexual assault (penetration of vagina) with absent menses of over two months, breast fullness, positive pregnant and confirmed scan of viable foetus all corresponds to her account that sexual assault did occur.
The account of the victim on how she was assaulted also established the fact that she was sexually assaulted. The testimony of PW3 on how she was treating her daughter for typhoid which eventually resulted in a miscarriage also established the fact that the victim was sexually assaulted. The Court finds that the victim was sexually assaulted and I so hold.
The learned trial Judge further found that PW2 was clear about the person who sexually assaulted her. The learned trial Judge believed the account of the victim, whom he described as an intelligent and coherent victim who testified in Court. The lower Court held at page 162 of the Record thus:
“The court finds that the testimony of PW2 and PW3 which was cogent, convincing and credible, established that it was the Defendant that defiled the victim”
The testimonies of the PW1, PW2 and PW3 and Exhibit P1 (a)-(e) were equally relied upon by the lower Court to find that there was penetration into the vault of the victim’s vagina. The same set of evidence of the Prosecution’s witnesses was also relied upon by the lower Court to find that the evidence of the underaged victim was sufficiently corroborated, thus making the ingredients of the offence of defilement to be established against the Appellant beyond reasonable doubt.
After a careful perusal of the evidence of the parties at the lower Court, both oral and documentary, I find that the evidence of the Prosecution witnesses was fraught with a lot of loopholes which, in my opinion, would not have been safe to convict the Appellant thereupon. I am unable to agree that the case of the Prosecution at the lower Court was proved against the Appellant beyond reasonable doubt. I am compelled to depart from the reasoning and findings of the lower Court in the circumstances of this case. I shall give my reasons for this opinion anon.
It must be reiterated, at this juncture that, under our criminal jurisprudence, the duty of proving beyond reasonable doubt, the guilt of a Defendant, who is standing trial for an offence(s), rests squarely on the Prosecution, as the Defendant enjoys the presumption of innocence. It is therefore not the duty of the Defendant to prove his innocence, as the presumption inures to his benefit. See Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 135 (1) & (2) of the Evidence Act, 2011 and the authorities of Okoh vs State, (supra); Isah vs. State (2017) LPELR-43472 (SC); Nwosu vs. FRN (2022) LPELR-57787 (CA) 74-75.
This Court in Effiong vs. State (2016) LPELR-41377 (CA) 16-17 stated that;
“... proof beyond reasonable doubt is one that precludes every reasonable hypothesis except that which it tends to support and it is proof, which is wholly consistent with the guilt of the defendant and inconsistent with any other rational conclusion. Therefore, in a criminal trial, for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other conceivable imaginable state of affair other than that of the guilt of the defendant, as a defendant shall be entitled to acquittal of crime charged if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible. See UBANI v. STATE (2003) 4 NWLR (Pt 809) 51 at 64.
It is however not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability. Once the ingredients of the particular offence the defendant is charged with, are proved, that constitutes proof beyond reasonable doubt and for such defendant to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the Court. See NWANKWO v. FRN (2003) 4 NWLR (Pt 809) 1 at 35-36."
My Lords, could we safely say that the Prosecution at the lower Court succeeded in establishing beyond reasonable doubt the ingredients of the offence of defilement against the Appellant? I am inclined to answer the poser in the negative. As stated afore, the Appellant, as the Defendant before the lower Court, would be entitled to an acquittal for the offence charged, if, and only if, the conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible. I have dutifully read over again the evidence of the parties adduced at the lower Court which is before this Court in the Record of Appeal. I find that the Appellant was by implication, being expected to prove his innocence in the circumstance of the case. This stance is a radical departure from the trite law which implies that it is not the duty of an accused person, like the Appellant in this case, to prove his innocence. Rather, it is the adjudged duty of the Prosecution in every criminal prosecution, who must establish the guilt of the accused person, leaving no conjecture in its trail. See Chianugo vs. State (2002) 2 NWLR (Pt. 750) 225. What I observe in the instant case is tantamount to asking the Appellant to do more than what the law places on him as a Defendant in a criminal case. I dare to say this as I am unable to see where it was proved that the Appellant indeed had carnal knowledge of the victim of the said offence. When I consider the evidence adduced by the parties before the lower Court, it is my considered view that the learned trial Judge based his judgment mainly on what the victim, PW2 and her mother, PW3, fed to that Court. In that judgment, especially at page 162 of the Record, the lower Court considered the question of who had sexual intercourse with the victim, PW2, and found as follows;
The Court finds that the testimony of PW2 and PW3 which was cogent, convincing and credible, established that it was the Defendant that defiled the victim.
I am inclined to depart from the line of opinion towed by the learned trial Judge in this regard as I am not persuaded at all. While no one is left in doubt as to whether the victim was a child at the time of the incident, for she testified at trial to be 15 years of age at the material time, her mother, PW3, also corroborated same.
In the same vein, the victim must have obviously been defiled with penetration into the vault of her vagina inferred by the reason of Exhibit P1 (a)-(e), tendered in evidence at the trial by PW1, one Dr. Oluranti Gbindinninuola, who was amongst the team that evaluated the victim when she was presented in the hospital. The report showed that the victim was 11 weeks 5 days pregnant. The offence of defilement, with which the Appellant was charged, requires that every of its ingredients be established in order to prove the offence beyond reasonable doubt, which is the standard imposed by law on the prosecutions in any criminal proceedings. In the instant case, I observe that the lower Court made its finding on what the duo of the PW2 and PW3 presented as evidence, the same thing fed to PW1 who testified on behalf of the Mirabel Medical Centre, where the case was referred to by the Police. The evidence of PW1, in so far as the information contained therein was gotten from PW2 & PW3, is a dangerous hearsay and therefore inadmissible and unreliable.
Another look at the evidence adduced at trial by PW2 and PW3, in my view, does not show that the robustly eminence treatment accorded it by the learned trial Judge, was justified in the circumstances. It is my view that the lower Court seemed to have permitted gross lax in its handling of the major prosecution evidence at the trial of the case. While the lower Court found PW2 as an intelligent and coherent victim, who testified in court, on the contrary, I find in her, through her testimony, a chicanery of a well-coached witness before a Court of law. I seek to bring out some of the apparent inconsistencies and marked contradictions in the testimonies of the said witnesses, they are as related hereunder.
In the record of proceedings of the lower Court, dated Wednesday, 12th April, 2017, as copied at pages 55-75 of the Record of Appeal, the testimony of PW2, goes thus;
“I got to know Apostle Solomon through my mum. On that fateful day Pastor Chucks introduced my mum, me and my siblings to Apostle Solomon Eze and that day he said a preaching that we should not go back to our house that there was an arrow of death and we should be living in the church. My mum agreed and my mum do go to work very early and comes back late at night.
On that very day, I just finished taking my bath so I was petting my younger sister to go to bed and a little time after was when Apostle Solomon called me to follow him to his office so I did and he told me that the deliverance is about to be done and so he brought a substance which he referred to as 'holy water' and further asked me to drink which I did and later told me to use the remaining substance on my face and I obeyed him. I felt weak after using the water substance on my face, I was going down and the next thing was that I found myself on the floor and a few minutes later I found Apostle Solomon on me, his hands were on my breasts and when he was done, I saw mucus and blood from my private part and he said to me that the making love thing should be between us that if anybody gets to know that myself, mother and family will all die.
This was PW2’s account of the incident that grounded the instant litigation. It was materially the same with her extra-judicial statement made to the Police on 4th November, 2014, about 2 months prior to her testimony in Court. She thereafter kept the incident to herself, telling it to no one, including her mother, for the fear she may die as reportedly threatened by the Appellant.
It is of particular interest to me, the PW2’s account of how her mother later came to the knowledge of the said occurrence. She testified thus;
“And then the issue of soap came in again, after sometime in the month of November, my mum just told me that Charity, 'you are pregnant'? I said, no. I was crying while she persuaded me all night long, she was begging and crying and after I saw her going through that I told her what actually transpired.
(Underlining for emphasis).
When PW2 was being led in evidence by Prosecution counsel, the following conversation, copied at pages 61-62 of the Record, ensued;
Q: you also mentioned that sometime in the month of November that your mum challenged that you’re pregnant?
A: Yes
Q: So what happened after that?
A: That day my mum was begging me and crying that Charity you are pregnant and I said no and later on I opened up to her of what transpired.
Q: After you opened up, what further step did your mum take?
A: When I did that by opening up to my mum she went to the church that she went to see the Pastor. So one elderly man says that she can’t see the Pastor that anything she wants to say that he will deliver the message to Pastor.
Q: And what did your mum do after coming back from the church?
A: After she returned of not seeing the Pastor, we were at the hospital to do scan.
Meanwhile, after the foregoing scenario, PW3, the victim’s mother, testified at pages 66-67 of the Record of Appeal, of the same event, thus:
“On one particular day when I arrived home I met my daughter sleeping so I decided to wake her up and she was not responding and I ran to Apostle to lodge a complaint. He said, I should not worry her that he has started the deliverance and by the following day she was still sleeping and I decided to wake her up. So when she stood up, she was not walking normally so immediately I called the Apostle's attention to what I saw. He said, I should not take her to the hospital. A few weeks later she began to complain about pains, I bought some drugs and Apostle called me to get a black soap at the rate of 5 thousand naira and I responded that I don't have such amount of money so I went to prophet Chucks and he gave me the soap for the 1, 200 naira rate. ... that was how I left the church but because of fear I couldn't go back. I now got an apartment there..”
She added that;
“ So I started living there and my daughter kept on complaining and the only thing I could get from her mouth was that she doesn't want to die and I asked her what happened? And when she was complaining of waste pain, body pain, and hotness of the body so I decided to take action and took her to hospital and it was discovered that she was pregnant. So I asked, who did this to you after enough of pleadings and finally she opened up to me so I went to Apostle Solomon that day and I met Mr. John Ogbomudia and he said why I am looking for Apostle Solomon that has he not asked me not to worship here any longer that anytime they see me around that they are going to beat me and that was how I left for police station in Iju Ishaga a red house police station and from there we were referred to Mirabel centre and there they checked everything and here we are in court.
Under cross-examination, PW3, at page 70 of the Record, restated thus:
As I discovered that she was pregnant after taken her for scanning, and I asked her who did this to aftermath of enough pleadings she opened up and further informed that she does not want to die that the defendant gave her a holy water right inside his office and also gave her oil to use and that was how she slept off.
The lower Court reviewed the case of PW2 when it stated at page 152 of the Record;
“Her mother found out that she was pregnant and that was when she opened up to her mother on all that transpired”
I see this as a patent gap in the case of the prosecution in the lower Court. By this account of the victim of crime which, on the face of it, appears vivid and ought to be presumed accurate. It is such an agony for a child to see her mother crying and begging her to confirm the mother’s suspicion whether or not the daughter was pregnant, and according to PW2, it lasted all the night, when she was crying while her mother persuaded her all night long, begging her and crying just for the child to confess if she was truly pregnant as the mother was suspicious of. It was this event that led the daughter to dare the threat of death hanging on her neck and proceeded to open up to her mother.
This, in my respectful opinion, will not be the same scenario where a mother who took her daughter to seek medical attention for a child who complained of waist pain, hotness of body, and stomach ache, amongst others. In the course of the medical intervention, a scan was conducted on the child which revealed that the child was pregnant. And, according to PW3 in her account before the lower Court, she started persuading the daughter to confess who was responsible for the pregnancy, who turned out to be their erstwhile Pastor, the Appellant herein. I found a huge gap created in the testimonies of the prosecution witnesses from which the learned trial Judge conspicuously looked away. I find that the contradiction was not minor, it goes to the root of the Respondent’s case. See Kalu vs. State, cited supra by counsel for the Respondent. It debases the lower Court’s reliance on the said evidence. Up till the conclusion of the prosecution’s case, no evidence was led to establish who was responsible for the victim’s pregnancy. This lacuna is fatal to the case of the Prosecution. In addition to this, Exhibit P1 (a)-(e) tendered by the Respondent stated that PW2 was pregnant for 11 weeks and 5 days. 11 weeks and 5 days translates to 82 days. The evidence before the lower Court was that PW3 and her children, including PW2, were given a space to live inside the Appellant’s Church on 21st August, 2014. Between that date and the 4th November, 2014, the date of the making of Exhibit P1 (a)-(e), is a period of 75 days. Therefore, if PW3 was 11 weeks 5 days pregnant as at 4th November, 2014, it means that she was already pregnant at the time they came to live in the Appellant’s Church.
Furthermore, it was on record that the defence gave evidence on the waywardness of PW2 who used to go out and return home late even while they lived in the Appellant’s Church. One of the instances was event of 28th August, 2014, where PW2 did not return until 9pm. She was said to be sickly prior to moving in to the Church which the mother testified was getting worse when they moved to the Church. I find that all these facts, established as the Appellant’s evidence was not contradicted during trial. The law has not changed that for the Prosecution to prove its case beyond reasonable doubt, the proof must exclude beyond reasonable doubt, every other conceivable imaginable state of affairs other than that of the guilt of the Defendant. See UBANI v. STATE (2003) 4 NWLR (Pt 809) 51 at 64.
My Lords, besides the fact that the person responsible for the pregnancy of PW2 has not been established, even though the Prosecution has the ample time and facilities to do so, PW2’s life of waywardness which has been established in evidence before the Court, makes it unsafe in the circumstance to convict the Appellant for defilement. What is more, the evidence of PW3, the mother of PW2, was nothing but a repetition of what she was told by her daughter, PW2. That evidence does not qualify as corroboration of the evidence of PW2, in that it is not an independent testimony but a rehash of what she was told by PW2.
There were other sundry defences put up by the Appellant and his witnesses in the lower Court which, curiously, the learned Judge deliberately ignored. It is trite that every defence available to a Defendant in a criminal trial shall be and ought to be considered. The Court’s obligation is founded on the presumption of innocence of the Defendant not to be convicted until his guilt is certain and proved beyond reasonable doubt. See Ogu vs. COP (2017) LPELR-43832 (SC) (Pp. 44-45 para. D)
The Supreme Court in Okoro vs. State (1988) 5 NWLR (Pt.94) 255 at 277, stated the law pointedly in this regard that:
“ ... the presumption of the innocence of the accused person constitutionally also means a duty on the Court not to convict until his guilt is proved beyond reasonable doubt, and that by that duty anything that ex facie negatives the guilt of the accused person must not be gleefully swept under the carpet and ignored."
It is on record that PW2 testified, when being led in evidence during the trial, that:
“The office (of the Appellant) was inside the church. No distance at all”. i.e, there is no distance between the Church and the Appellant’s office. This confirms the evidence of the Appellant at page 105 of the Record that “there is no personal office, if I want to do counselling it is at the back”. The learned trial Judge, on this issue stated as follows:
“He testified that he owns a business an interior decoration used and used his church address as his office address. What the Defendant and the three Defendant’s witnesses want the court to believe is that the Defendant did not have an office where he could have carried out the sexual assault, yet by his own testimony he has shown that he does have an office in the church where he conducts business. ...
The Defendant in his written statement stated that his church members were between 90-120 members of congregation, yet he had no office of his own”
He then found as follows;
“The court finds the testimony of the Defendant and DW1, DW3 as an afterthought concocted to mislead the court and cannot be relied upon by the court”
I am in agreement with the Appellant that the decision of the lower Court as expressed above depicts a crass/improper evaluation of the Appellant’s witnesses’ evidence. Even by the testimony of PW2, the positioning of the Appellant’s office was not in issue, she stated that “the office was inside the church. No distance at all. PW3 too, testified thus;
“The church is quite big but it is not bigger than this court room. They are almost the same size in Iju Ishaga in Arogo lane we use net...
What I mean is that the Pastor has his own office why he provided us with a place we were sleeping and where I am talking about there was a net which we use to cover it and that was how we normally sleep in that church” (Emphasis supplied).
The above evidence buttressed the testimony of DW2, the landlord’s son who testified that “it is downstairs, just like a hall. It is an open place, there is no hiding place there, it is just a hall”.
Yet, the lower Court made the positioning of the Appellant’s office an issue in his judgment, just so that he can find him guilty. One wonders how the trial Judge turned around to fill the evidential gaps in the case of the Prosecution, as he did in the portion of the judgment quoted above. It is trite law that it is not the duty of the trial Court to supply the missing link in the evidence of the Prosecution connecting the accused person with the act being complained about. The lower Court has the duty to be very circumspect in the instant case, being a criminal matter, and exercise great care before convicting the Appellant. It is also trite law that it is better for ten guilty people to be set free than for one innocent person to be convicted. See Odogwu vs. State (2013) 14 NWLR (Pt.1373) 74. The learned trial Judge, in my considered view, was derelict in this regard. It has the primary responsibility to hear the parties, watch and observe the demeanour of witnesses before it, and has the prerogative to either admit or reject documents tendered and ascribe probative value to the evidence prior to coming to its decision thereon. In Mohammed vs. State (2020) LPELR-52451 (SC) 7-28, paras. F-C, the Supreme Court held thus:
"The primary duty of ascribing probative value to the evidence at the trial, upon proper evaluation of the totality of the evidence, devolves exclusively on the trial Court that had the opportunity of hearing and watching the witnesses testify. The appellate Court, it is trite, will not usurp that function."
The observance of the procedure for evaluation of evidence is crucial to arriving at a just decision, while its breach will most likely lead to a perverse decision. I agree with the Appellant and I so find, that the lower Court failed to properly evaluate the evidence led before it and that it ignored cogent and credible evidence led by the defence witnesses. I hold that it came to a wrong and perverse conclusion on the one count Charge of defilement with which the Appellant was charged.
It is settled law that decision of a Court will be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable. I find that the lower Court closed its eyes to the particular evidence adduced before it, which in my opinion, may have tilted the scale in favour of the Appellant.
On the evidence of whether the environment of the abode of PW2 and PW3 may have permitted the commission of the crime under focus on the fateful date, the victim gave evidence at trial that;
“The church was not busy because there was the other family that we lived together, the husband does okada (bike) work and the wife washes cloths for people so it was just Apostle Solomon with me, my younger brother and my little sister that were around”
I find as relevant too, the testimony of DW3, one Mrs Victoria Ugbebor, who was staying inside the Church-hall with her family together with PW3 and her family. She testified that she was always around in Church with the PW3 children because she had a 2-month-old baby as at the time. She testified that they were all living in the open Church-hall where the Appellant had his office within the hall. All other defence witnesses, including DW2, the son of the landlord of the premises, testified to non-exclusive place used as office by the Appellant. They testified that DW1 with his wife, DW3 and his children; 6 in number stayed with the PW3 and her 3 children, including PW2, in the open church, part of which the Appellant was said to have improvised as his office for counselling. The thought that resonates in my mind, in the circumstances of this case, is whether such heinous crime can be successfully carried out by the Appellant in the setting described in the evidence of witnesses for both parties, especially when DW3, who had just delivered a new baby, barely 2 months old, gave evidence that she was always around in the premises. I answer that it will be a great deal of difficulty at achieve that.
It is also questionable how the victim, who became so weak and attenuated upon her taking the “holy water” given to her by the Appellant so much so that she became vegetable throughout the act of the defilement, could become so energized afterwards to quickly clean herself up; “washed my cloth and ran to bed until my mum returned”.
This was her testimony before the lower Court. She also added that she wanted to shout but the Appellant covered her mouth. How could she have shouted when the purported holy water intoxicated her, according to her earlier account? I sensed some oddity in the storyline of PW2 and PW3, it was quite some unreliable and made-up evidence. The lower Court really erred in law to have relied on these set of evidence and convict the Appellant.
As often said, the role of the Prosecution is not that of persecution. The Prosecution in this case failed to call in evidence at trial, the Police Officer who investigated the crime when it was reported at the Red House Police Station, Iju, W/Sgt Idowu Dorcas. I am convinced by the Appellant’s counsel submission that the said IPO was a vital witness who, though was listed as one of the witnesses, was not called to give evidence. She visited and inspected the locus criminis and interviewed neighbours in respect of the commission of the said crime. I hold that the said W/Sergeant Idowu Dorcas was a vital witness, and failure of the Prosecution to call her to testify during trial was fatal to the case of the Respondent. The presumption that the evidence of the said witness was deliberately withheld, as it was capable of damaging the Prosecution’s case, can properly be invoked in the instant case. See section 167 (d) of the Evidence Act, 2011.
Before I round off this judgment, I am inclined to state that I find as unreasonable, the reliance of the lower Court on exhibit P1 (a)-(e), the medical report tendered by PW1. It was clear from the Record that the same PW2 and PW3 were the only source of the information received by Mirabel Centre from where the medical report emanated. The report was not proved as being sufficient to establish that the Appellant had intercourse that resulted into the PW2’s pregnancy which was detected by the medical examination. The learned trial judge also turned the law on its head when he held that the Appellant failed to satisfy the Court with information on why the DNA test was not concluded. The Appellant, by the presumption of his innocence could not be expected to procure DNA test on his cost. It is absurd to expect him to prove his innocence. The Prosecution ought to establish its case against the Appellant beyond reasonable doubt, a duty which the Prosecution failed to discharge. It is my considered view that the decision of the lower Court to convict the Appellant for the offence of defilement was perverse and had occasioned a grave miscarriage of justice to the Appellant. The law is long settled that a miscarriage of justice is a failure of justice, it denotes a reasonable probability of more favourable outcome of the case of the Appellant in this instance. There is a miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed, as in this case. See Nwankwoala vs. FRN (2018) LPELR-43891 (SC) (Pp. 20 para. A); Ugboji vs. State (2017) LPELR-43427 (SC) and Babatunde vs. State of Lagos (2023) LPELR-61117 (CA) (Pp. 31 para. A)
The decision of the lower Court, having been found to be perverse, is liable to the unredeemable consequence of being set aside. I hereby set it aside. I find that the instant appeal has merit and I allow it. The judgment of the High Court of Lagos State in Charge No: ID/2564C/2016, delivered on 17th March, 2022, is hereby set aside. The conviction and sentence passed on the Appellant are equally set aside. The Appellant is consequently discharged and acquitted.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Adepeju Jaiyeoba (Mrs.) with Fayekemi Olusegun and Pamilerin Adisa, for the Appellant.
Jubri Kareem, Principal State Counsel, Ministry of Justice, Lagos State, for the Respondent.
