CORAM

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Adebukunola Adeoti ibironke Banjoko Justice of the Court of Appeal

Peter Chudi Obiorah Justice of the Court of Appeal

Okon Efreti Abang Justice of the Court of Appeal

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PARTIES

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POMTD KASUWAV

APPELLANTS 

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NIGERIAN NAVY

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW, MILITARY LAW, EVIDENCE, SEXUAL OFFENCES, PRACTICE AND PROCEDURE, APPELLATE JURISDICTION

 

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SUMMARY OF FACTS

The appeal arose from a decision of the Special Court Martial of the Nigerian Navy dated March 22, 2019. The Appellant, a petty officer in the Nigerian Navy, was convicted of defiling a 9-year-old Miss Nana Hashim under Section 78 of the Armed Forces Act Cap A20 LFN 2004 and sentenced to 5 years imprisonment. The incident occurred on November 9, 2018, when the victim returned from school. According to the prosecution’s evidence, the Appellant dragged the victim into his room, removed his boxer shorts, and had carnal knowledge of her. The victim initially kept quiet due to threats from the Appellant but later revealed the assault after her stepmother noticed stains on her clothes. Medical examination confirmed evidence of sexual assault, with doctors noting signs of repeated abuse. The Appellant denied the allegations, though he admitted being the only adult male present in the compound at the time of the incident. He was originally charged with two counts but was acquitted on the second count of gross indecency.

 

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HELD

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1. The appeal was dismissed for lacking merit.

2. The Court affirmed the decision of the Special Court Martial dated March 22, 2019.

3. The Court held that there was sufficient corroboration of the victim’s testimony through circumstantial evidence and medical reports.

4. The Court found that the prosecution proved its case beyond reasonable doubt.

5. The Court noted that the 5-year sentence was lenient given the gravity of the offense.

 

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ISSUES

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1. Whether the trial Court was right in convicting the Appellant on the charge of defilement when the testimony of PW5 (aged 9) was not corroborated as required by law ?

2. Whether from the totality of evidence before the trial Court it was right in convicting the Appellant on the charge of defilement as alleged against him by the prosecution ?

 

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RATIONES DECIDENDI

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CORROBORATION IN SEXUAL OFFENCES – NATURE OF CORROBORATIVE EVIDENCE

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“My Lords contrary to the submissions of the Appellant, it is rare and even impossible to have a direct evidence linking an accused person to the act of sexual assault. Put differently, the prosecution do not require or need an eye witness account to prove the offence of rape or defilement.” – Per Okon Efreti Abang, JCA

 

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LEADING QUESTIONS – EFFECT ON EVIDENCE IN CRIMINAL TRIALS

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“A leading question is a question that suggests answer and it is not allowed in an examination in chief… Therefore, in the exercise of the power of this Court under the provisions of Section 15 of the Court of Appeal Act, and in line with the mandatory provisions of Section 221(1) and (2) of the Evidence Act 2011, I hereby expunge the evidence of Appellant at page 182 of the record that was received by the trial Court through Appellant in answering leading questions in his examination in chief.” – Per Okon Efreti Abang, JCA

 

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CIRCUMSTANTIAL EVIDENCE – SUFFICIENCY FOR CONVICTION

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“Any circumstantial piece of evidence that is strange, abnormal which is against societal norms, that will irresistibly be traced to the accused in some material particular is corroborative and is capable to secure the conviction of the accused.” – Per Okon Efreti Abang, JCA

 

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PROOF OF DEFILEMENT – ESSENTIAL INGREDIENTS

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“My Lords to secure conviction of the appellant for the offence of defilement as stated under Section 87 of the Act, the prosecution have a duty infact a burden to prove the following ingredients of the offence: i. That the appellant is a person subject to service law; ii. That the victim is a girl under the age of 16 years; iii. That the accused had carnal knowledge of her; iv. That there was penetration.” – Per Okon Efreti Abang, JCA

 

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CONDUCT OF ACCUSED – RELEVANCE TO CORROBORATION

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“The conduct of the accused before arraignment or during trial having regard to the peculiar facts of the case can constitute corroboration to secure conviction. Refusal to answer straight forward questions under cross-examination can also amount to corroboration to secure conviction.” – Per Okon Efreti Abang, JCA

 

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STANDARD OF PROOF – REQUIREMENT IN CRIMINAL CASES

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 “My Lords the law is settled and requires no restatement that the burden of proof in a criminal trial is on the prosecution and the standard is that of proof beyond reasonable doubt… It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability.” – Per Okon Efreti Abang, JCA

 

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PENETRATION – PROOF IN SEXUAL OFFENCES

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 “The most essential ingredient of the offence of rape is penetration however slight. Penetration with or without emission is sufficient even where the hymen is not ruptured. The slightest penetration will be sufficient to constitute the act of intercourse.” – Per Okon Efreti Abang, JCA

 

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SENTENCING POLICY – GRAVITY OF SEXUAL OFFENCES

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“I can only add my voice to condemn in very strict terms the act of rape committed by the Appellant against the innocent young girl of 9 years… The Appellant should consider himself very lucky to have gotten only five years and be thankful to the Respondent who neglected to appeal against the sentence.” – Per Peter Chudi Obiorah, JCA

 

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MINOR CONTRADICTIONS – EFFECT ON CREDIBILITY

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Even if there was contradiction in exhibits b and F and the oral testimony of PW5 that the Appellant himself in paragraph 3.1.34 of his brief said portrayed remarkable intelligence and smartness is not sufficient to raise doubt as to the guilt of the Appellant. It was a minor discrepancies in the evidence adduced by PW5 that cannot entitle the Appellant to acquittal.” – Per Okon Efreti Abang, JCA

 

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UNCONTROVERTED EVIDENCE – EFFECT IN CRIMINAL TRIALS

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The said evidence having been expunged, the evidence of PW5 that the Appellant dragged her into his room and had sexual intercourse that produced sperm found on the victim’s body has not been challenged or controverted by the Appellant. The fact that this piece of evidence is not challenged is corroborative.” – Per Okon Efreti Abang, JCA

 

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MEDICAL EVIDENCE – CORROBORATION IN SEXUAL OFFENCES

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 “The evidence of PW8 a medical doctor that examined the victim corroborates her evidence at page 125 of the record that she stated that the appellant has been having sexual intercourse with her even before the incident of 9/11/2018.” – Per Okon Efreti Abang, JCA

 

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GRAVITY OF SEXUAL OFFENCES – PUBLIC POLICY CONSIDERATIONS

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“The facts of this appeal are both sordid and morbid. It exposes the moral decadence in the society we live in. The facts of the case can also lead to a conclusion that a man can turn himself with time into a barbaric animal.” – Per Okon Efreti Abang, JCA

 

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CORROBORATION – SUFFICIENCY OF EVIDENCE

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“Supreme Court in the case of AKINDIPE V STATE settled this point in a case that the facts are similar to the facts of this case when it held that corroboration need not consist of direct evidence that the accused committed the offence charged or it need not amount to a confirmation of the whole account given by the witness/prosecutrix, it must however corroborate the said evidence in some respect material to the charge in question.” – Per Okon Efreti Abang, JCA

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Armed Forces Act Cap A20 LFN 2004

Evidence Act, 2011

Court of Appeal Act

Criminal Code Laws Cap 89 Laws of the Federation of Nigeria

Penal Code Cap 89 Laws of Northern Nigeria 1963

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