CORAM

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MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

JOHN INYANG OKORO

ABDU ABOKI

IBRAHIM MOHAMMED MUSA SAULAWA

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PARTIES

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MADUABUCHI ONWUTA

APPELLANTS 

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THE STATE OF LAGOS

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

 

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SUMMARY OF FACTS

It was the Respondent’s case that on 26th of November 2013, the survivor was a year and 4 months old and was taken by her mother to the Defendant’s room in his care in order to take her bath. That after she had her bath, that her daughter approached her pointing to her pant saying mummy “see see”. That she checked her daughter’s pant to discover blood in it; she immediately took her daughter to the health centre where she was informed that her daughter had been defiled. She made a report at the Police Station, which led to the arrest of the Defendant. That on the day in question it was only herself, her daughter and the Defendant that were in the house and no other person than the Defendant could have defiled her daughter. Upon his arrest, the Appellant put up a defence that he was with his girlfriend at the time and that the baby must have been defiled a day before the event when she was found crying uncontrollably in a neighbor’s house.

The trial High Court had found the Appellant guilty of the one count charge of defilement of a 16 month old baby who was left in his care when the mother went to take a shower which offence is contrary to Section 137 of the Criminal Code Ch. 17 Vol.3, Laws of Lagos State. He was convicted and sentenced to 25 years imprisonment. An appeal to the Court of Appeal, Lagos Division, affirmed the decision of the High Court of Lagos State, hence a further appeal to this Court.

 

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HELD

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Appeal Dismissed.

 

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ISSUES

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Whether the Court of Appeal was right in upholding the judgment of the trial Court without making a pronouncement on the failure of the investigating Police officer to investigate the Appellant’s defence that the crime had been committed by someone else the previous day where the baby was heard crying uncontrollably from their neighbour’s house.

Whether the Court of Appeal was right in holding that the contradictions in prosecuting witnesses’ case was not fundamental enough to vitiate the conviction and sentence.

Whether the Court of Appeal was right in holding that the prosecution witnesses were not confronted with the contradictions in their statements made to the police.

 

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RATIONES DECIDENDI

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CRIMINAL TRIAL – WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

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“Having set out in summary, the postures albeit divergent of the Appellant as against the Respondent, it is to be reiterated that in seeking to establish the guilt of a defendant, the prosecution may rely on any of the three ways set out hereunder:

1. Confessional statement of the defendant.

2. Direct eyewitness account of a witness or witnesses.

3 Circumstantial evidence.​

The above is a follow-up in our criminal justice system as an accused person is presumed innocent until the prosecution proves his guilt. Hence an accused is not expected to prove his innocence before the Court of law, since the duty is on the prosecution to establish the charge or charges against an accused beyond reasonable doubt. See Saminu v State (2019) LPELR- 47622 (SC); Uche Williams v The State (1992) 10 SCNJ 74”. PER M.U. PETER-ODILI, J.S.C

 

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PROOF BEYOND REASONABLE DOUBT –MEANING OF PROOF BEYOND REASONABLE DOUBT

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“The notion, proof beyond reasonable doubt is not the same as proof beyond all doubt or all shadow of doubt or proof to the hilt. What proof beyond reasonable doubt rather means is the establishment of the guilt of an accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high level of probability. See Ayinde v State (2019) LPELR-47835 (SC) per Okoro JSC; Nwaturuocha v The State (2011) 6 NWLR (pt. 1242) 170; Ajayi v The State (2013) 9 NWLR (pt.1360) 589; Alabi v The State (1993) 7 NWLR (pt. 307) 511; Nasiru v The State (1999) 2 NWLR (pt. 589) 87; Akalezi v The State (1993) 2 NWLR (pt. 273)1. PER M.U. PETER-ODILI, J.S.C

 

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OFFENCE OF DEFILEMENT – REQUIREMENT FOR ESTABLISHING THE OFFENCE OF DEFILEMENT

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“In this case in point, the appellant was charged for defilement and it is now settled beyond peradventure that to prove the offence of defilement, the prosecution must establish the essential elements of the offence which my learned brother, Rhodes-Vivour JSC captured effectively in the case of Boniface Adonike v The State (2015) 7 NWLR (pt.1458) 237 at 284 – 285 as follows:-

“Section 218 supra creates the offence of defilement of a girl under the age of 11 years. To succeed, the prosecutions 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.”

PER M.U. PETER-ODILI, J.S.C

 

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UNCHALLENGED EVIDENCE – DUTY OF COURT WHEN EVIDENCE IS UNCHALLENGED

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“It is trite law that the duty of Court when evidence is unchallenged and uncontroverted, is to act on it where credible. I refer to the cases of Oforlete V. The State (2000) 7 SCNJ 162 at 179, 183 and 184 and Magaji V. Nigeria Army (2008) 8 NWLR PART 1089 p.338. PER M.U. PETER-ODILI, J.S.C

 

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EVIDENCE – WHETHER A STATEMENT FROM THE BAR BY A COUNSEL HAS THE FORCE OF LEGAL EVIDENCE

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The argument of Appellant’s Counsel that the baby was wearing diaper as such the Appellant could not have known if there was blood stain amounts to giving evidence in counsel’s brief. See Lawali v state (2019) LPELR-46405 (SC), where the Court held that “I think I should prefatorily make the point: a bare statement from the Bar by a counsel has no force of legal evidence: Onu Obekpa v. Commissioner Of Police (1980) 1 NCR 113. “I also add that the proof of evidence in criminal proceedings serves the same purpose that pleadings serve in civil proceedings. PER M.U. PETER-ODILI, J.S.C

 

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CASES CITED

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STATUTES REFERRED TO

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Rules of Professional Conduct for Legal Practitioners, 2007

 

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