Legalpedia Citation: (2025-02) Legalpedia 37197 (CA)

In the Court of Appeal

Holden at Lagos

Mon Feb 3, 2025

Suit Number: CA/LAG/CR/37/2023

CORAM

RIdwan Maiwada Abdullahi Justice of the Court of Appeal

Zainab Bage Abubakar Justice of the Court of Appeal

Ruqayat Oremei Ayoola Justice of the Court of Appeal

PARTIES

NWAFOR IFEANYI

APPELLANTS

THE STATE OF LAGOS

RESPONDENTS

AREA(S) OF LAW

CRIMINAL LAW, SEXUAL OFFENCES, CONSTITUTIONAL LAW, EVIDENCE LAW, APPEAL, PRACTICE AND PROCEDURE, JUDICIAL DISCRETION, SENTENCING, HUMAN RIGHTS

SUMMARY OF FACTS

This case involves an apprentice, Nwafor Ifeanyi (the Appellant), who lived with the family of his master (the Prosecutrix’s father) as part of the Igbo apprentice scheme. The Prosecutrix, a 4-year-old girl, complained of pains in her vagina and told her father that the Appellant put his hand in her vagina multiple times. The child was taken to three hospitals for treatment. The Appellant was subsequently arrested and taken to the Ojo Police Station. The prosecution alleged that the Appellant admitted to the Prosecutrix’s father and in his extra-judicial statement that he had fingered the private part of the Prosecutrix.

The Appellant was initially arraigned on December 11, 2019, on information filed on January 2, 2019. He pleaded not guilty to a one-count charge of sexual assault by penetration. The trial commenced on March 11, 2020. The Appellant was re-arraigned on July 27, 2021, under Section 261 of the Criminal Law Ch. C17, Vol.3, Laws of Lagos State, 2015.

Two witnesses testified for the Prosecution: the Prosecutrix’s father (PW1) and the child victim (PW2). The Appellant testified as DW1, and his brother testified as DW2. The Appellant’s two extra-judicial statements were admitted as Exhibits B and B1. At the conclusion of the trial, the court found the Appellant guilty, convicted him, and sentenced him to life imprisonment.

HELD

1. The appeal was dismissed for lacking in merit.
2. The Court of Appeal upheld the decision of the lower Court and affirmed the conviction and sentence of the Appellant to life imprisonment.
3. The Court held that the essential elements of the offence of sexual assault by penetration under Section 261 of the Criminal Law of Lagos State, 2015, were proven beyond reasonable doubt.
4. The Court held that even without the confessional statement, other evidence before the Lower Court was sufficient to ground the conviction of the Appellant.
5. The Court found that the Appellant had not shown any circumstances that would warrant consideration for a lesser offence under Section 263 of the Criminal Law of Lagos State.

ISSUES

1. Whether the Respondent proved all essential elements of the offence of sexual assault by penetration against the Appellant beyond reasonable doubt as required by law to warrant the conviction and sentence of the Appellant by the Trial Court?
2. Whether Exhibit B1 (the purported Confessional Statement of the Appellant) was direct, independently corroborated, positive, and properly proved by the Respondent to sustain conviction and sentence of the Appellant by the Trial Court?
3. Whether Section 261 of the Criminal Law, C17, Vol.3 Laws of Lagos State, 2015 prescribed for the imposition of maximum punishment of life imprisonment upon conviction of an offender under the said section?
4. Whether the Trial Court properly evaluated and reviewed evidence adduced by the parties at trial before convicting the Appellant on the offence of sexual assault and consequently sentenced him to life imprisonment?

RATIONES DECIDENDI

ESSENTIAL INGREDIENTS OF SEXUAL OFFENCE – ELEMENTS THAT MUST BE PROVED TO ESTABLISH SEXUAL ASSAULT BY PENETRATION

The essential ingredients of the above-stated offence are:

1. The defendant penetrated the anus, vagina, mouth or any other opening part of the victim.
2. The intent of the penetration was for sexual purposes.
3. The penetration was not with her consent but where the penetration is against a minor, who is incapable of giving consent, proof of lack of consent is not necessary.
4. If penetration is proved, the defendant must be shown to be responsible for the penetration. –Per RUQAYAT OREMEI AYOOLA, J.C.A.

BURDEN OF PROOF IN CRIMINAL CASES – PRESUMPTION OF INNOCENCE

It must constantly be borne in mind that every accused/defendant under the Nigerian Criminal Justice System is presumed innocent until the contrary is proven. Authorities on these principles of law are inexhaustible. See the following:

1. Nweke Vs. State (2001) 16 WRN 96.
2. Aigbadion Vs. State (2000) 7 NWLR (Pt 555) 586 at 754.
3. Nwosu Vs. State (1998) 8 NWLR (Pt 562) 433 at 444.
4. Idemudia Vs. State (1999) 7 NWLR (Pt 610) 202 at 205
5. Tanko Vs. State (2008) 16 NWLR (Pt 1114) 597. –Per RUQAYAT OREMEI AYOOLA, J.C.A.

METHODS OF PROVING CRIMINAL OFFENCES – VARIOUS MEANS OF ESTABLISHING COMMISSION OF OFFENCE

The commission of an offence can be proved by: (a) Confessional Statement; (b) Direct or the eyewitness account. (c) Circumstantial evidence. See Igri Vs. The State (2010) 7 WRN 1, 47; Emeka Vs. State (2001) 1 WRN 41, 64. The prosecution can also prove his case by a combination of any two or all of the means referred to above. See Mathew Vs. State (2018) LPELR 45519 (CA).” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

PROOF OF SEXUAL PENETRATION – INTERPRETING EVIDENCE REGARDING SEXUAL ORGANS

It is not the contention of the Appellant that the Appellant did not penetrate the PW2 vagina with his fingers but that the prosecution did not prove the purpose of the said penetration. What other purpose, the Appellant would have when he put his fingers into the private part of PW2 a minor of 4 years other than for sexual purposes? The putting of his fingers into the vagina would be presumed. It is for the Appellant to lead evidence that it was not for sexual purposes. I have studied the evidence led by the Defence, and there was nothing of such. Indeed, Section 261 of the Criminal Law did not use the word wee-wee, but PW2 pointing towards her vagina is sufficient evidence that the wee-wee was the vagina area of PW2’s body. This Court has held in Adenekan Vs. The State of Lagos (2020) LPELR 50406 (CA), that wee-wee qualified as vagina and the defendant putting his mouth there qualified as penetration. – Per RUQAYAT OREMEI AYOOLA, J.C.A.

VITAL WITNESSES – PROSECUTION’S DISCRETION IN CALLING WITNESSES

Another point argued by the Appellant is that the Respondent withheld evidence by its failure to call vital witnesses. In Ochiba Vs. State (2011) LPELR 8245 (SC), the apex Court held that a ‘Vital Witness’ is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a ‘Vital Witness’- Per Adekeye, JSC (P. 37, Paras C-D). In this case, the Supreme Court held further that: ‘The Appellant is laying a burden for the Prosecution which the law has not provided for. The law in proof of criminal offences including the capital one which is the subject of his appeal is that of proof beyond reasonable doubt. In that regard if through only one witness that burden is discharged, so be it and that is sufficient. Proof does not necessarily mean proof by a specific number of witnesses without which, it cannot be said that the case has been established by the standard required. It is rather lame to call for the operation of Section 149(d) (now 167 (d) of the Evidence Act against the Prosecution for failing to call the witnesses that Defence felt ought to be called.’- Per RUQAYAT OREMEI AYOOLA, J.C.A.

UNSWORN TESTIMONY OF A CHILD – NEED FOR CORROBORATION

Notwithstanding the foregoing, I have advised myself to look for other evidence to validate the testimony of the Prosecutrix in concluding the issue before me. Now, Section 209(3) of the Evidence Act (Supra) provides that a person shall not be convicted of an offence unless some other material evidence in support thereof implicating the defendant corroborated the unsworn evidence of a child. It is trite that corroborative evidence must be independent evidence that implicates the defendant and validates the testimony requiring corroboration vide Ogunbayo Vs. State.- Per RUQAYAT OREMEI AYOOLA, J.C.A.

CORROBORATION IN CRIMINAL CASES – ADMISSION OF OFFENCE AS CORROBORATION

In Criminal Law, an admission of an offence by an accused person to other persons may amount to sufficient corroboration. In R. Vs. Francis Kusi (1960) WNLR 1, the accused was charged with indecent assault against a young girl of ten years. It was held that the admission of the offence by the accused to the father of the girl was sufficient corroboration in law. – Per RUQAYAT OREMEI AYOOLA, J.C.A.

CONFESSIONAL STATEMENTS – EVIDENTIARY VALUE OF CONFESSION

I, therefore, find that the defendant’s confession (Exhibit B1) that he fingered the Prosecutrix was a positive and unequivocal narration that he sexually penetrated the Prosecutrix’s vagina with his finger. There can be no better evidence of a crime than the eyewitness account of the defendant himself, vide Ubierho Vs. The State; Osetola and Anor Vs. State (2012) LPELR 9348 (SC); Adamu Vs. State (2017) LPELR 41436 (SC); and Kamila Vs. State (2018) LPELR 43603 (SC) on Page 14(D-F) – Per RUQAYAT OREMEI AYOOLA, J.C.A.

TENDERING OF STATEMENTS DURING CROSS-EXAMINATION – PROPRIETY OF PROCEDURE

On the issue that Exhibits B and B1 were tendered only under cross-examination of the Appellant, I hold that the tendering of Exhibits B and B1 under cross-examination of the Appellant was in order. The Appellant’s right to object to the admissibility of Exhibits B and B1 was not taken away thereby. The Defence objected to its admissibility on the ground that the Appellant did not make the statement. The settled law is that once a defendant denies making a Confessional Statement, the Court will admit the statement only to consider the weight to be attached to it. And the Lower Court perfectly did that. – Per RUQAYAT OREMEI AYOOLA, J.C.A.

DENIAL OF MAKING CONFESSIONAL STATEMENT – EFFECT ON ADMISSIBILITY

The case of the Appellant was not that it was not voluntarily made, which would have necessitated a trial within trial even at the stage when the Defence was on. This is because the Prosecution is burdened to prove the guilt of the defendant throughout the trial. The case of Esangbedo Vs. State (1989) 4 NWLR (Pt 113) 57 relied upon by the Appellant supported the case of the prosecution. Having said so, what is the effect of Section 9(3) of the ACJL of Lagos State, 2015? As held in Zhiya Vs. People of Lagos (2016) LPELR 40562 (CA), Section 9(3) of the ACJL applied only where the accused is said to have volunteered a Confessional Statement. However, where the defendant denied making the statement, I am of the view that it is only weight and not the voluntariness that the Court would consider. Section 9(3) of the ACJL Lagos State is inapplicable to the instant. – Per RUQAYAT OREMEI AYOOLA, J.C.A.

CONVICTION FOR LESSER OFFENCE – CIRCUMSTANCES WARRANTING CONSIDERATION

The next issue is whether the Lower Court ought to have convicted the Appellant for a lesser offence under Section 263 of the Criminal Law of Lagos State. The Appellant has not shown us circumstances that would warrant the Court to consider him for a lesser offence under Section 263 of the Law. There was nothing before us to consider conviction and sentence under Section 263 and none has been shown to us. The Appellant denied committing any offence at all. – Per RUQAYAT OREMEI AYOOLA, J.C.A.

APPELLATE REVIEW OF TRIAL COURTS – RELUCTANCE TO INTERFERE WITH FINDINGS

Overall, I must commend the Learned Trial Court for doing a good job. It also did a good review of the evidence before it. I have no reason to tamper with the decision. The Lower Court’s decision was not perverse, and the Appellant did not show that any miscarriage of justice was caused. – Per RUQAYAT OREMEI AYOOLA, J.C.A.

DISMISSAL OF APPEAL – AFFIRMATION OF LOWER COURT’S DECISION

My Lords, there being nothing upon which I can upset what the Court below did, I dismiss this appeal and uphold the decision of the lower Court as I affirm the conviction and sentence of the Appellant, all issues raised being resolved against the Appellant and in favour of the Respondent. – Per RUQAYAT OREMEI AYOOLA, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Criminal Law Ch. C17, Vol.3, Laws of Lagos State, 2015
3. Evidence Act, 2011
4. Administration of Criminal Justice Law (ACJL) of Lagos State, 2015
5. Penal Code

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