CORAM

---

MOHAMMED MUSTAPHA JUSTICE, COURT OF APPEAL

ABDULLAHI MAHMUD BAYERO JUSTICE, COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL

---

PARTIES

---

AYODELE OLAMIDE

APPELLANTS 

---

THE STATE OF LAGOS

RESPONDENTS 

---

AREA(S) OF LAW

---

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE

 

---

SUMMARY OF FACTS

PW1, the victim in the matter claimed that the accused accosted her when she came back from the church with her family. She was falling asleep in the family living room when she was woken by the appellant, whom she identified. She further stated that he forcefully covered her mouth with a handkerchief, threatened to kill her, and raped her.

The appellant testified in his own defense.

The appellant was tried, convicted, and sentenced to life imprisonment by the High court on a one count charge of defilement, contrary to section 137 of the Criminal Law of Lagos state, 2015.

Dissatisfied the decision, he made the instant appeal.

 

---

HELD

---

Appeal dismissed

 

---

ISSUES

---

Whether the respondent proved the offence of defilement against the appellant beyond reasonable doubt?

 

 

---

RATIONES DECIDENDI

---

BURDEN AND STANDARD OF PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS – MEANING OF PROOF BEYOND REASONABLE DOUBT

---

It is trite that the burden is on the prosecution to prove, beyond reasonable doubt, that an accused Person committed the offence he is charged with; see Section 135 of 2011, which provides to the effect that, if the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

The burden of proving that any person is guilty of committing a crime is, subject to the provision of Section 141 of the Evidence Act, on the person who asserts it, whether the commission of such act is or is not directly in issue; see BUSARI V STATE (2015) 5 NWLR Part 1452 Page 343; AIGBADION VS. STATE (2000) 7 NWLR Part 666, Page 686 at 704 Para B and OGUNTOLU V STATE (1996) 2 NWLR Part 432 Page 503 at 510.

Having said that, it is important not to lose sight of the fact that the burden does not shift in a criminal trial, because Sections 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt, and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person; see NWEZE VS. STATE (2017) LPELR-42344(SC); ALABI VS. THE STATE (1993) 7 NWLR (Pt. 307) 511 at 531 and SOLOLA VS. THE STATE (2005) 5 SC (Pt. 1) 135.

Proof beyond reasonable doubt does not by any means mean proof beyond any shadow of doubt. The generally accepted yardstick is such that If the evidence is so strong against the accused person, as to leave only a remote possibility in his favour, which can be dismissed by the observation that “of course it is possible but not in the least probable”, then the case is said to have been proved beyond reasonable doubt; SAMPSON V. STATE (2020) LPELR-49643(CA) (Pp. 16-17 paras. C). – Per Mohammed Mustapha, JCA

 

---

STATEMENT – DESCRIPTION OF HOW POLICE STATEMENTS ARE GOTTEN – THE PREROGATIVE OF THE PROSECUTION TO DECIDE WHAT DOCUMENTS TO TENDER/WITNESSES TO CALL – WHETHER THE PROSECUTION IS REQUIRED TO TENDER STATEMENTS MADE BY THE PROSECUTION/A PROSECUTION WITNESS

---

While any statement obtained by the police is important, it has to be understood that the statement is obtained by the police after the crime. Invariably an Investigating Police Officer is hardly ever at the crime scene. The police then, testifies in Court, as a witness, giving a synopsis of what he did during the investigation. He then tenders the statements of both accused and in some cases that of witnesses. He also tenders some documents and exhibits obtained during investigation.  That is all there is to it; OBOT V. STATE (2014) LPELR-23130(CA) (Pp. 36 paras. B).

It is the prerogative of the prosecution to decide, always, what documents to tender and which witnesses to call, after all it is the prosecution’s case, to sink or swim.

“The extra-judicial statement that appellant’s counsel harped on was not tendered in evidence as an exhibit and so it cannot be a subject of discourse, scrutiny or analysis in this appeal. The prosecution is not required by the law to tender the statement that a prosecution witness made to the police. It is the duty of the defense at the crucial stage to demand for such statement for the purpose of cross-examination of the witness as to his credit only. Where such a statement is not tendered in Court, the Court will not do the inquisitorial work of fishing out the statement in the record of appeal to consider it, not even at the invitation of counsel. The document harped on by appellant’s counsel was not tendered at the trial Court as an exhibit and so this Court will not consider it. See OZAKI V STATE (1990) 1 NWLR (PT. 124) 92, ATTAH V STATE (2010) 10 NWLR (2010) 9 (PT. 1201) 190, NWABUEZE V PEOPLE OF LAGOS STATE (2014) 3 NWLR (PT.1394) 401, UMAR V STATE (2014) 3 NWLR (PT. 1425) 497 and LUCKY V STATE (2016) 13 NWLR (PT. 1528) 128.” Per EKANEM, J.C.A in EHIAGHE V. STATE (Pp. 11-12 paras. E). – Per Mohammed Mustapha, JCA

 

---

CORROBORATION – MEANING OF CORROBORATION – WHETHER THE SWORN EVIDENCE OF A CHILD REQUIRES CORROBORATION – CORROBORATIVE EVIDENCE THE COURT SHOULD LOOK FOR IN A CASE OF RAPE WHERE THE ACCUSED DENIES COMMITTING THE OFFENCE

---

…corroboration simply means evidence which confirms the evidence of the prosecution; See OGUNBAYO V. STATE (supra); IGINE V. STATE (1997) 9 NWLR (Pt. 519) 101; AMADI V. STATE (1993) 8 NWLR (Pt. 314) 644 and MUSA V. STATE (2013) 9 NWLR (Pt. 1359) 214.

The law, as it stands, is that the sworn testimony or evidence of a child, even in sexual offences, does not as a matter of law, require corroboration in order to be accepted, acted on and relied upon by a trial Court for the conviction of an accused person; SEE AKPAN V. STATE (1972) 4, SC, 6, (1971-1972) 7 NSCC, 201.

The sworn evidence of a child need not, as a matter of law be corroborated; See AREBAMEN V. STATE (1972) 2 SC, 35; MBELE V. STATE (1990) 7 SC (PT. 1) 1, (1990) 4 NWLR (PT. 145) 484 and JEGEDE V. STATE (2001) 1 NWLR (PT. 695) 623. The Evidence Act, 2011 states in Section 209 that:

209(1) “In any proceedings in which a child who has not attained the age of fourteen years is called 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.”

Granted, the best identification is the prompt one by the victim or people who saw the crime committed; SEE ADAMU V. STATE (1991) 4 NWLR (PT. 187) 530 AND FRIDAY V. STATE (2014) LPELR-23003(CA) (PP. 48 PARAS. B-B); be that as it may, the supreme court in POSU VS THE STATE (2011) 2 NWLR (PT. 1234) 393, stated that:

“in a case of rape, where an accused defendant denies committing the offence, as in the instant case, the evidence of corroboration that the Court must look for is, for example, (i) medical evidence showing injury to the private part or other parts of the body of the victim which may have been occasioned in a struggle; or (ii) semen stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed. There was evidence that upon the victim informing her parents of the incident on the same day it occurred, the father of the victim, who testified as the third prosecution witness, reported the matter to the police and whereupon a police woman escorted the victim and her father to the Gombe Specialist Hospital for examination. The victim was examined by a medical doctor, a Dr. L. O. Akanbi, and a medical report of the examination was prepared. The medical report was tendered as Exhibit C and it read in part thus:

“… On examination, there was no sign of beating or physical abuse. The main finding was in the examination of genitals with mild oedema of the labia minora and torn hymen at 9 O’clock position. There was also some whitish vaginal discharge at the vaginal orifice…An assessment of sexual assault was made …””

This court further held in ONOYIWA V. STATE (2018) LPELR-44255(CA) (Pp. 24-26 paras. E) that:

“Corroboration… tends to show that the story of the victim that the accused committed the crime is true. Since the act of… is by nature grave, devastating traumatic and reduces the totality of the victims personality, emphasis must be placed on the fact that such assertion must be backed by corroboration of one kind or another. In the instant case and in this regard, the ingredient of corroboration need not amount to a confirmation of the whole account given by the prosecution witness, i.e. the victim. It is sufficient if the said evidence is corroborated in some material particular to the charge; See EZIGBO V. THE STATE (2012) AII FWLR (Pt. 638) 847 @ 849; Also SAMBO V. THE STATE (1993) 6 NWLR (Pt. 300) 399.

As a matter of law, corroboration of the evidence of the victim is not required but where the act of… is denied as in the instant case, the evidence of corroboration which the Court must look for is (a) medical evidence showing injury to the private part of the victim or other parts of the body and (b) semen stains on her clothes or that of the accused person. PW1, the victim was examined by PW3 and a medical report (Exhibit ‘A’) was produced thereafter. The medical report reveals that the hymen of the victim was broken and bruises were established…It is my view as rightly held by the trial Court that the evidence of the medical doctor and Exhibit ‘A’, the medical report produced after examination of the victim serve to corroborate the evidence of PW1 i.e. that of the prosecution… In the case of IKO VS. THE STATE (2001) FWLR Pt. 68 1161, the Apex Court held that in most cases… it is difficult to secure corroboration from the evidence of an eye witness that the accused person inserted his penis into the vagina of the victim.” Per EKPE, J.C.A in Onoyiwa v. state (2018) LPELR-44255(CA) (Pp. 24-26 paras. E). – Per Mohammed Mustapha, JCA

 

---

ALIBI – MEANING OF THE DEFENCE OF ALIBI – DUTY OF AN ACCUSED RELYING ON THE DEFENCE OF ALIBI – WHERE THE PROSECUTION FIXES THE ACCUSED AT THE SCENE OF THE CRIME

---

The defense of alibi when raised in a criminal trial, means that the accused person was somewhere other than where the prosecution alleges he was at the time the crime charged was allegedly committed. It simply captures the physical impossibility of the accused person being in two places at the same time. When an accused person raises the plea of alibi, he is simply saying that he could not have committed the offence he was charged with, because he was at a different place completely separated from the scene of crime, and at the material time the crime was committed.

The law however requires that, an accused person who relies on the defense of alibi, raises it at the earliest opportunity he had of doing so. He must also supply full particulars as to his location, the persons he was with at the particular time in terms of their names and addresses; and what he was doing at the location mentioned; SEE EKE V. THE STATE (2011) 3 NWLR (PT. 1235) 589; SHEHU V. STATE (2010) 8 NWLR (PT.1195) 112; IKUMONIHAN V. STATE (2018) LPELR – 44362 (SC) and ESENE V. STATE (2017) LPELR – 41912 (SC). 

…Where as in this case, the prosecution adduces sufficient evidence to fix the appellant at the scene of the crime, at the material time, the alibi is destroyed, any further investigation as suggested by the appellant becomes needless; see ACHIBONG V STATE (2006) 14 NWLR part 1000 page 349. As a matter of fact, investigation is not necessary if the evidence unequivocally points to the guilt of the appellant; ADEWUNMI V. STATE (2015) 10 NWLR part 1521 page 514. – Per Mohammed Mustapha, JCA

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

I

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Criminal Law of Lagos state, 2015.

3. Evidence Act, 2011

CLICK HERE TO READ FULL JUDGEMENT