Legalpedia Citation: (2025-01) Legalpedia 65793 (CA)

In the Court of Appeal

Holden at Benin

Fri Jan 31, 2025

Suit Number: CA/B/173C/2022

CORAM

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Lateef Adebayo Ganiyu Justice of the Court of Appeal

Asmau Ojuolape Akanbi Justice of the Court of Appeal

PARTIES

OSARO OMOROTIONMWAN

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

CRIMINAL LAW, EVIDENCE LAW, CONSTITUTIONAL LAW, CRIMINAL PROCEDURE, HUMAN RIGHTS, SEXUAL OFFENCES, JUDICIAL PRECEDENT, STANDARD OF PROOF, WITNESS TESTIMONY

SUMMARY OF FACTS

This case involves an appeal against the conviction of the Appellant, Osaro Omorotionmwan, for the offence of rape contrary to Section 4 of the Violence Against Persons (Prohibition) Law, 2021 of Edo State. The Appellant was convicted by the High Court of Justice, Edo State, sitting at the Criminal Division, Benin City, on May 18, 2022, and subsequently sentenced to life imprisonment on May 20, 2022.

The prosecution’s case was that the victim (a 7-year-old girl) was sent by her mother to buy soda soap from the shop of the Appellant’s wife. On arriving at the shop, she found only the Appellant present. According to the victim, the Appellant invited her into the shop, sat her on his lap, and inserted his finger into her vagina. After this, he gave her the soap and asked her to leave.

On her way home, the victim met her mother, who questioned why she had taken so long. The victim narrated what had transpired, which prompted her mother to confront the Appellant with the allegation, which he denied. The mother then took the victim to a nearby chemist where she was examined by a doctor and nurse, but they reportedly did not confirm or deny the allegation. The mother subsequently took the victim to a second chemist, where the nurse confirmed that the victim’s vagina had been tampered with. The mother also personally examined the victim’s vagina. The victim was then taken to a lady’s shop close to the Appellant’s store, where she received treatment.

The following day, the incident was reported to the police, who referred them to the Police clinic. However, the mother instead took the victim to Vivian Center for a medical test. The doctor’s report from Vivian Center stated that the victim’s hymen was absent.

The Appellant, on his part, denied any physical contact with the victim. He maintained that he merely sold the soap to the victim, and she left. He stated that he was arrested the following day by the police.

HELD

1. The appeal was allowed.

2. The decision of the trial Court delivered on May 18, 2022, wherein the Appellant was found guilty of the offence under Section 4 of the Violence Against Persons (Prohibition) Law, 2021, was set aside.

3. The sentence of life imprisonment against the Appellant was set aside.

4. The Appellant was discharged and acquitted

ISSUES

1. Whether from the totality of the evidence adduced by the prosecution on the several tempering of the private part by persons, the prosecution conclusively proved that the action of the appellant was singularly responsible for what happened to the private part of the alleged victim?

2. Whether it is safe for a Court to convict a defendant on the case of the prosecution that is riddled with doubt?

3. Whether the consistent denial by the Appellant is not weighty enough to exculpate him of any criminal liability/responsibility especially when there is no corroborative evidence from an independent witness?

4. Whether the wetness or emission of the private part of an alleged victim is an ingredient in the offence of rape?

5. Whether the prosecution has sufficiently proved the case of rape against the defendant to ground a conviction?

RATIONES DECIDENDI

BURDEN OF PROOF IN CRIMINAL TRIALS – ONUS ON PROSECUTION TO PROVE GUILT BEYOND REASONABLE DOUBT

It is trite that in criminal trials, the law places the onus to prove the guilt of a defendant entirely on the prosecution and in discharging that onus, the prosecution must prove all the ingredients of the offence with which the defendant is charged beyond reasonable doubt – Section 135(1) & (2) Evidence Act 2011 (as amended). Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is to the effect that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty by a Court of law. – Per ASMAU OJUOLAPE AKANBI, J.C.A.

METHODS OF PROVING GUILT – VARIOUS APPROACHES AVAILABLE TO PROSECUTION

To establish the guilt of a defendant, the evidence led through prosecution witnesses must disclose certain elements which constitute the offence charged without which the Prosecution cannot secure a conviction. The prosecution can achieve this feat to secure a conviction either by leading evidence of witnesses who saw the incident take place or lead evidence of those circumstances which point unequivocally and conclusively to the defendant as the perpetrator of the act or offence. The Prosecution can also simply tender in evidence the confessional statement of the accused person to prove or establish his case or a combination of those methods. Whichever of the methods the Prosecution chose to adopt in proving his case, the elements that constitute the offence must be brought to bear otherwise, the Prosecution would have failed to discharge his duty of proof beyond reasonable doubt.- Per ASMAU OJUOLAPE AKANBI, J.C.A.

ELEMENTS OF THE OFFENCE OF RAPE – INGREDIENTS TO BE PROVED UNDER SECTION 4 OF THE VIOLENCE AGAINST PERSONS (PROHIBITION) LAW

From the above provision, it is clear that the ingredients of the offence of rape required to be proven by the Respondent in the instant case, are as follows: i. That the Appellant penetrated the vagina of the victim; ii. That the act of penetration was done with a part of the Appellant’s body or object; iii. That the act of penetration was intentional; and iv. That the victim was below the age of 18.- Per ASMAU OJUOLAPE AKANBI, J.C.A.

CORROBORATION OF CHILD TESTIMONY – MANDATORY REQUIREMENT FOR UNSWORN TESTIMONY

It would appear the trial Judge did not avert his mind to the above provision when he held at page 60 of the Records that ‘it is not a rule of law but one of practice that a Defendant in charge of Rape cannot be convicted on the uncorroborated evidence of the victim’. There is no distinction in Section 209 above between a charge of rape and other offences. What the lower Court obviously missed is that the rule in Section 209(3) of the Evidence Act makes it mandatory for the UNSWORN testimony of a child below 14 years to be corroborated by compelling and credible evidence. The law therefore remains that it is unsafe to convict a person on the uncorroborated evidence of a child that was unsworn. Section 209(3) is clear on this position.- Per ASMAU OJUOLAPE AKANBI, J.C.A.

EVIDENCE EVALUATION – COURT RESTRICTED TO EVIDENCE BEFORE IT

I have searched the entire records before me, I cannot find anywhere in the records where the PW2 or PW1 stated that she did not have a bath to preserve her private part. The evidence of PW1 and PW2 are contained at pages 24-27 of the Records of Appeal. It is important that a Court restrict itself to the evidence before it as it is not the duty of any Court to seek evidence or fill gaps in evidence presented by parties before it. – Per ASMAU OJUOLAPE AKANBI, J.C.A.

VITAL WITNESSES – DEFINITION AND IMPORTANCE IN CRIMINAL TRIALS

A vital witness is an eyewitness to the commission of a crime or/and a witness who can give very truthful and relevant evidence that would resolve the case one wall (sic) or the other. A witness who gives evidence on what is logical and true is a vital witness.- Per ASMAU OJUOLAPE AKANBI, J.C.A.

FAILURE TO CALL VITAL WITNESSES – EFFECT ON PROSECUTION CASE

A vital witness is a witness whose evidence may determine the case one way or the other, and it is settled that the failure to call such a witness is fatal to the prosecution’s case. It is true that the prosecution is hot obliged to call all listed witnesses nor is there need for a host of witnesses to get a conviction but where there is a particular vital witness whose evidence is very crucial and important to the case of the prosecution in proof of the quilt of the accused, then such a witness must be called as failure to do so would occasion a fatality in proof of the charge as it would produce the presumption of withholding evidence suggestive of the fact that if that evidence were produced it would work against the prosecution and favour the accused.– Per ASMAU OJUOLAPE AKANBI, J.C.A.

MEDICAL EVIDENCE IN RAPE CASES – IMPORTANCE OF CONTEMPORANEOUS EXAMINATION

The circumstances of this case make the evidence of the doctor, nurses and ‘lady’ that examined the PW1 to be vital, particularly the evidence of the ‘lady’ who the PW2 said treated the prosecutrix. The evidence will reveal their observation from the examination of the PW1’s vagina and what sort of treatment was administered on the PW1 by them. Without this essential piece of evidence, there is serious doubt raised on the state of evidence at the point the PW4 examined and treated the PW1.- Per ASMAU OJUOLAPE AKANBI, J.C.A.

HYMEN ABSENCE ALONE – INSUFFICIENCY AS PROOF OF RAPE

More so, Exhibit B and the PW4’s evidence did not state if other than the absence of the hymen, there were other signs like bruises to confirm that the absence of the hymen was recent. The absence of the hymen alone will not conclusively prove that there was penetration of the victim by the Appellant, particularly in the instant case where the evidence suggest that the alleged rape was immediately reported to the PW2 and she caused the examination of the victim to be done.- Per ASMAU OJUOLAPE AKANBI, J.C.A.

IMPORTANCE OF THOROUGH POLICE INVESTIGATION – IMPACT ON CRIMINAL PROSECUTION

My lords, this case further confirms the importance of Prosecuting agencies conducting proper and thorough investigation of allegation of crimes reported to them before a suspect is dragged to Court. In this instance, had the Police investigation sought to discover the findings of the doctor, nurse and ‘lady’ who first examined the PW1, it would have completely obliterated any doubt as to whether the Appellant committed the alleged rape or not. – Per ASMAU OJUOLAPE AKANBI, J.C.A.

BRIEF WRITING – IMPROPRIETY OF FORMULATING MULTIPLE ISSUES FROM SINGLE GROUND

Both the Appellant’s and Respondents’ Counsel have eaten sour grapes in the formulation of their issues and their issues so formulated are set on edge. At pages 203-204 of the record, the Appellant distilled only 2 grounds of appeal with their particulars. However, he frolickingly and whimsically formulated 5 issues for determination of the appeal culled and selected from the two grounds of appeal. Issues for determination must relate to the grounds of appeal before the Court. Issues must fall within the scope or ambit of the grounds of appeal and any issue falling outside is incompetent. Issues for determination, whether formulated by the Appellants or the Respondents must be tailored to the real issues in the grounds of appeal. – Per LATEEF ADEBAYO GANIYU, J.C.A.

VITAL WITNESSES IN CRIMINAL PROSECUTION – EFFECT OF FAILURE TO CALL

A vital witness is a witness whose evidence is fundamental; in that it determines the case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case. See STATE V. NNOLIM (1994) 5 NWLR (Pt. 345) P. 394. Furthermore, failure to call vital witness raises the presumption under Section 149 (d) of the Evidence Act that had he been called the evidence he would have led would have been unfavorable to the prosecution.- Per LATEEF ADEBAYO GANIYU, J.C.A.

HEARSAY EVIDENCE IN RAPE CASES – INSUFFICIENCY OF MOTHER’S TESTIMONY

I am in agreement with the Appellant Counsel that the evidence of PW2 on what she was told by the PW1 is hearsay and ought not to be countenanced by the trial Court. Also, the report of the PW4 was tainted by the fact that several people had examined the PW1 and she had been treated by a ‘lady’ before the PW4 examined her and concluded that the hymen was absent. I therefore have no doubt in my mind that the series of examination conducted on the PW1 before the PW4’s examination tampered with the evidence and affected the conclusion of the PW4. – Per ASMAU OJUOLAPE AKANBI, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. Evidence Act, 2011 (as amended)

3. Violence Against Persons (Prohibition) Law, 2021 of Edo State

4. Penal Code

5. Criminal Code

CLICK HERE TO READ FULL JUDGMENT