Areas of Law:
CRIMINAL LAW, CONSTITUTIONAL LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

Summary of Facts:
The Accused was charged at the High Court of Delta State on a one count charge for the offence of defilement under section 218 of the Criminal Code Cap. 48 Vol. II Laws of the defunct Bendel State 1976 as applicable. The facts of the case are that the accused person requested a child of 5 years old to buy sachet water for him and on her return; he lured her into his room and had carnal knowledge of her. The accused person denied the charge and pleaded not guilty to same. At the conclusion of the trial, the court sentenced him to six years imprisonment with six strokes of the cane. Not satisfied with the judgment of the trial court, the accused person appealed to the Court of Appeal, Benin Division where the appeal was dismissed. Still dissatisfied, the Appellant has appealed to this court.

Held:
Appeal Dismissed

Issues for Determination:

• Whether the conviction of the appellant is void in view of the fact that he was tried under the repealed law of the old Bendel State and convicted under the existing laws of Delta State
• Whether the respondent proved the offence of defilement against the appellant beyond reasonable doubt

Rationes:
OFFENCE OF DEFILEMENT-TIME LIMIT FOR INSTITUTING AN ACTION FOR THE OFFENCE OF DEFILEMENT – SECTION 218 OF THE CRIMINAL CODE, CAP 48 VOL. 11 LAW OF THE DEFUNCT BENDEL, 1976
“Section 218 of the Criminal Code, Cap 48 Vol.11 Law of the defunct Bendel State, 1976 under which the appellant was charged states:
“218. Any person who has unlawful carnal knowledge of a girl under the age of eleven years is guilty of a felony, and is liable to imprisonment for life, with or without caning.Any person who attempts to have unlawful carnal knowledge of a girl under the age of eleven years is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning.A prosecution for either of the offences defined in this section must be begun within two months after the offence is committed. A person cannot be convicted of either of the offences defined in this section upon the uncorroborated testimony of one witness.”PER J. I. OKORO, JSC
PRINCIPLE OF LAW –PURPOSE OF PRINCIPLE OF LAW
“Every principle of law is meant to streamline and clarify issues arising from any law in force and particularly the particular provision in question. It is also meant to guide the court, litigants and counsel.”PER J. I. OKORO, JSC

 CONVICTION -WHETHER AN APPELATE COURT WILL SET ASIDE THE CONVICTION OF AN ACCUSED MERELY ON THE COMPLAINT THAT HE WAS TRIED AND CONVICTED UNDER A REPEALED LAW
“This court has, in its wisdom laid down the principle that an appellate court will not set aside the conviction of an appellant merely on the complaint that he was tried and convicted under a repealed law if at that time there was an existing law which he should have been tried and convicted.”PER J. I. OKORO, JSC

CONVICTION OF AN ACCUSED PERSON – IMPORT OF SECTION 36 (12) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Section 36 (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides that:
“36 (12) Subject as otherwise provided by this Constitution a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of the law.”PER J. I. OKORO, JSC

PRESUMPTION OF INNOCENCE -AN ACCUSED PERSON IS PRESUMED INNOCENT UNTIL HE IS PROVED GUILTY

“Under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused person proving his innocence before a law court”. PER J. I. OKORO, JSC

PROOF – DUTY OF THE PROSECUTION TO PROVE THE CHARGE AGAINST AN ACCUSED PERSON BEYOND REASONABLE DOUBT
“The duty of the prosecution is to prove the charge against an accused person beyond reasonable doubt. I must emphasize that it is not proof beyond every shadow of doubt but beyond reasonable doubt. See Uche Williams V. The State (1992) 10 SCNJ 74, Yongo V. COP (1992) 4 SCNJ 113, Ogundiyan V.The State (1991) 3 NWLR (pt. 181) 519.” PER J. I. OKORO, JSC

OFFENCE OF RAPE –INGREDIENTS THE PROSECUTION MUST PROVE IN A CHARGE OF RAPE
“It is trite that in a charge of rape or unlawful carnal knowledge of female without her consent, the prosecution has a bounded duty to prove the following ingredients:
a. that the accused had sexual intercourse with the prosecutrix;
b. that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit, or impersonation;
c. that the prosecutrix was not the wife of the accused;
d. that the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not;
e. that there was penetration.”PER J. I. OKORO, JSC

CORROBORATION-MEANING OF CORROBORATION
“This court, in Oludotun Ogunbayo V. The State (2007) 8 NWLR (pt. 1035) 157 held that corroboration is not a technical term or art, but means no more than evidence, tending to confirm, support and strengthen other evidence sought to be corroborated. It was further held that it need not consist of direct evidence that the accused person committed the offence, nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respects material to the charge. See also Iko V. The State (2001) 14 NWLR (pt. 732) 221.”PER J. I. OKORO, JSC

MINOR DISCREPANCIES –WHETHER MINOR DISCREPANCIES BY THE PROSECUTION WITNESSES WOULD AVAIL AN ACCUSED PERSON
“Where there are differences in the narration of events by prosecution witnesses, especially as to recounting or recollecting the date of events, which are mere discrepancies that would not avail the accused person,because some of such discrepancies are expected as being natural. See John Ogbu& Another V. The State (2007) 2 SCNJ 319, Golden Dibie& Ors V.The State (2007) 3 SCNJ 160.” PER J. I. OKORO, JSC

NOTICES OF APPEAL – AN APPELLANT IS ALLOWED TO FILE TWO OR MORE NOTICES OF APPEAL WITHIN THE PERIOD ALLOWED BY RELEVANT STATUS
“It is allowed for an appellant to file two or more notices of appeal within the period allowed or prescribed by relevant status and make an election one of the two or multiple notices and then based his brief of argument on it. See Tukur v Governor of Gongola State (1988) 1 NWLR page 68 p.39.” PER M.S. MUNTAKA- COOMASSIE, JSC

MATERIAL CONTRADICTION IN EVIDENCE – EFFECT OF MATERIAL CONTRADICTION IN EVIDENCE

“It is settled law that a material contradiction must go to a material point-that is, to the root of the charge against the accused person.” PER M.S. MUNTAKA- COOMASSIE, JSC

SEX – WHETHER A CHILD IS CAPABLE OF CONSENTING TO SEX
“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”. PER B.RHODES-VIVOUR, JSC

CORROBORATION – CORROBORATION IS INDEPENDENT EVIDENCE THAT CONFIRMS OR MAKES MORE CERTAIN THE TESTIMONY OF THE CHILD
“Corroboration is independent evidence that confirms or makes more certain the testimony of the child. Admission by the accused person that he committed the offence may amount to corroboration. See State v Essien(1974) 4 University of Ife L.R.P. 127”. PER B.RHODES-VIVOUR, JSC
CORROBORATION – WHETHER CIRCUMSTANTIAL AND MEDICAL EVIDENCE MAY AMOUNT TO CORROBORATION
“Circumstantial evidence, Medical evidence may also amount to corroboration”. PER B.RHODES-VIVOUR, JSC

OFFENCE OF DEFILEMENT – WHEN IS THE OFFENCE OF DEFILEMENT COMPLETE
“The offence of defilement is complete when the court is satisfied that the person defiled was under the age of 11 at the time the appellant committed the act”. PER B.RHODES-VIVOUR, JSC

FINDINGS OF FACT BY THE TRIAL COURT – THE SUPREME COURT WILL RARELY UPSET THE FINDINGS OF FACT MADE BY THE TRIAL COURT AND AFFIRMED BY THE COURT OF APPEAL
“The Supreme Court will rarely upset the findings of fact made by the trial court and affirmed by the Court of Appeal”. PER B. RHODES-VIVOUR, JSC

CONCURRENT FINDINGS BY THE LOWER COURTS –INSTANCES WHERE CONCURRENT FINDINGS BY LOWER COURTS CAN BE SET ASIDE
“This court will not hesitate to set aside concurrent findings by the lower courts if satisfied:
(a) that the findings of fact are perverse or cannot be supported by the evidence led in the trial court;
(b) that the findings of fact amount to a travesty of justice if not corrected;
(c) that the findings if left uncorrected amount to a miscarriage of justice or violation of some principle of law or procedure.See. R-Benkay Nig Ltd v.Cadbury Nig PLC (2012) 3 SC (pt. iii) p.169,Military Gov. of Lagos State & 4 ors. v. Adeyiga & 6 ors (2012)2Sc (pt1) p.68 ,ACN v Lamido & 4 ors (2013) 2SC (pt. ii) p.163.” PER B.RHODES-VIVOUR, JSC

Statues Reffered to:
Criminal Code Law Cap.31 Laws of Oyo State
Constitution of the Federal Republic of Nigeria, 1999