STEPHEN FRANCIS V THE STATE OF LAGOS

Legalpedia Citation: (2024-03) Legalpedia 23077 (CA)

In the Court of Appeal

HOLDEN AT LAGOS

Thu Mar 21, 2024

Suit Number: CA/LAG/CR/957/2023

CORAM

MOHAMMED MUSTAPHA JUSTICE, COURT OF APPEAL

ABDULLAHI MAHMUD BAYERO JUSTICE, COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL

PARTIES

STEPHEN FRANCIS

APPELLANTS

THE STATE OF LAGOS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Victim testified in court and claimed that the appellant told her that his wife who was apparently not at home was calling her. She said that when she got to the appellant’s house, he had sexual intercourse with her after removing her clothes. She also claimed that he only ran away when she screamed for help, and his neighbors came knocking at the door. The appellant was arraigned on the 29th June, 2021 on a single count of defilement of a child under section 137 of the criminal law of Lagos state, to which he pleaded not guilty. The defense/ appellant testified in his own defense. In the end the lower court convicted the appellant and sentenced him to life imprisonment. Dissatisfied with the conviction, the appellant appealed by a notice of appeal hence the instant appeal.

HELD

Appeal dismissed

ISSUES

 Whether the respondent proved the offence of defilement against the appellant beyond reasonable doubt?

RATIONES DECIDENDI

BURDEN AND STANDARD OF PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS – MEANING OF PROOF BEYOND REASONABLE DOUBT

It is trite that the burden is on the prosecution to prove, beyond reasonable doubt, that an accused Person committed the offence he is charged with; see Section 135 of 2011, which provides to the effect that, if the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

The burden of proving that any person is guilty of committing a crime is, subject to the provision of Section 141 of the Evidence Act, on the person who asserts it, whether the commission of such act is or is not directly in issue; see BUSARI V. STATE (2015) 5 NWLR Part 1452 Page 343; AIGBADION VS. STATE (2000) 7 NWLR Part 666, Page 686 at 704 Para B and OGUNTOLU V. STATE (1996) 2 NWLR Part 432 Page 503 at 510.

Having said that, it is important not to lose sight of the fact that the burden does not shift in a criminal trial, because Sections 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt, and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person; see NWEZE VS. STATE (2017) LPELR-42344(SC); ALABI VS. THE STATE (1993) 7 NWLR (Pt. 307) 511 at 531 and SOLOLA VS. THE STATE (2005) 5 SC (Pt. 1) 135.

Proof beyond reasonable doubt does not by any means mean proof beyond any shadow of doubt. The generally accepted yardstick is such that If the evidence is so strong against the accused person, as to leave only a remote possibility in his favour, which can be dismissed by the observation that “of course it is possible but not in the least probable”, then the case is said to have been proved beyond reasonable doubt; SAMPSON V. STATE (2020) LPELR-49643(CA) (Pp. 16-17 paras. C). – Per Mohammed Mustapha, JCA

 

STATEMENT – WHETHER FAILURE TO TENDER STATEMENT MADE BY THE PROSECUTION TO THE POLICE IS FATAL TO A CASE

While any statement obtained by the police is important, it has to be understood that the statement is obtained by the police after the crime. Invariably an Investigating Police Officer is hardly ever at the crime scene. The police then, testifies in Court, as a witness, giving a synopsis of what he did during the investigation. He then tenders the statements of both accused and in some cases that of witnesses. He also tenders some documents and exhibits obtained during investigation.  That is all there is to it; OBOT V. STATE (2014) LPELR-23130(CA) (Pp. 36 paras. B).

It is the prerogative of the prosecution to decide, always, what documents to tender and which witnesses to call, after all it is the prosecution’s case, to sink or swim.

“The extra-judicial statement that appellant’s counsel harped on was not tendered in evidence as an exhibit and so it cannot be a subject of discourse, scrutiny or analysis in this appeal. The prosecution is not required by the law to tender the statement that a prosecution witness made to the police. It is the duty of the defense at the crucial stage to demand for such statement for the purpose of cross-examination of the witness as to his credit only. Where such a statement is not tendered in Court, the Court will not do the inquisitorial work of fishing out the statement in the record of appeal to consider it, not even at the invitation of counsel. The document harped on by appellant’s counsel was not tendered at the trial Court as an exhibit and so this Court will not consider it. See OZAKI V. STATE (1990) 1 NWLR (PT. 124) 92, ATTAH V. STATE (2010) 10 NWLR (2010) 9 (PT. 1201) 190, NWABUEZE V. PEOPLE OF LAGOS STATE (2014) 3 NWLR (PT.1394) 401, UMAR V. STATE (2014) 3 NWLR (PT. 1425) 497 and LUCKY V. STATE (2016) 13 NWLR (PT. 1528) 128.”  Per EKANEM, J.C.A in EHIAGHE V. STATE (Pp. 11-12 paras. E). – Per Mohammed Mustapha, JCA

 

CORROBORATION – MEANING OF CORROBORATION – WHETHER THE SWORN TESTIMONY OF A CHILD REQUIRES CORROBORATION TO BE ACCEPTED, ACTED UPON, AND RELIED ON BY A COURT – THE CORROBORATIVE EVIDENCE COURTS SHOULD LOOK OUT FOR IN A CASE FOR RAPE

To that I say, corroboration simply means evidence which confirms the evidence of the prosecution; See OGUNBAYO V. STATE (supra); IGINE V. STATE (1997) 9 NWLR (Pt. 519) 101; AMADI V. STATE (1993) 8 NWLR (Pt. 314) 644 and MUSA V. STATE (2013) 9 NWLR (Pt. 1359) 214.

The law, as it stands, is that the sworn testimony or evidence of a child, even in sexual offences, does not as a matter of law, require corroboration in order to be accepted, acted on and relied upon by a trial Court for the conviction of an accused person; SEE AKPAN V. STATE (1972) 4, SC, 6, (1971-1972) 7 NSCC, 201.

The sworn evidence of a child need not, as a matter of law be corroborated; See AREBAMEN V. STATE (1972) 2 SC, 35; MBELE V. STATE (1990) 7 SC (PT. 1) 1, (1990) 4 NWLR (PT. 145) 484 and JEGEDE V. STATE (2001) 1 NWLR (PT. 695) 623. The Evidence Act, 2011 states in Section 209 that:

209(1) “In any proceedings in which a child who has not attained the age of fourteen years is called as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.”

Granted, the best identification is the prompt one by the victim or people who saw the crime committed; SEE ADAMU V. STATE (1991) 4 NWLR (PT. 187) 530 and FRIDAY V. STATE (2014) LPELR-23003(CA) (PP. 48 PARAS. B-B); be that as it may, the supreme court in POSU VS THE STATE (2011) 2 NWLR (PT. 1234) 393, stated that:

“in a case of rape, where an accused defendant denies committing the offence, as in the instant case, the evidence of corroboration that the Court must look for is, for example, (i) medical evidence showing injury to the private part or other parts of the body of the victim which may have been occasioned in a struggle; or (ii) semen stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed. There was evidence that upon the victim informing her parents of the incident on the same day it occurred, the father of the victim, who testified as the third prosecution witness, reported the matter to the police and whereupon a police woman escorted the victim and her father to the Gombe Specialist Hospital for examination. The victim was examined by a medical doctor, a Dr. L. O. Akanbi, and a medical report of the examination was prepared. The medical report was tendered as Exhibit C and it read in part thus:

“… On examination, there was no sign of beating or physical abuse. The main finding was in the examination of genitals with mild oedema of the labia minora and torn hymen at 9 O’clock position. There was also some whitish vaginal discharge at the vaginal orifice…An assessment of sexual assault was made …”” – Per Mohammed Mustapha, JCA

 

PROSECUTION – CONDUCT OF COURTS WHERE THE PROSECUTION FAILS TO MENTION THE NAME OF THE PERSON WHO COMMITTED THE CRIME AT THE EARLIEST TIME

While relying on the authority of the supreme court decision of ABUDU V. STATE (1985) 1 NWLR part 1 page 55, learned counsel for the appellant valiantly contended that failure of the prosecution to mention the name of the appellant at the earliest opportunity, and to tender the statement of PW1 compromised the prosecution’s case.

While the need to tender all relevant documents as exhibit cannot be overemphasized, it has to be born in mind, especially in this regard, that the supreme court was very careful in its choice of words; because it did not out rightly suggest that the evidence of a witness who omits to mention the name of a person committing a crime, at the earliest, be disregarded.

As a matter of fact, the operative words, in the supreme court decision are:

“…a court must be careful in accepting his evidence…”

The objective, as can be seen is to exercise caution in accepting the evidence, not reject it out rightly. The evidence of PW1 is without doubt very important by any stretch of imagination, not least because she is an eye witness. It is for this reason that this court held PER OJO, J.C.A IN OLADIPUPO V. STATE   (PP. 38-39 PARAS. F) that:

“The law is trite that one of the best form of evidence to nail an accused person is the direct account of the incident by an eye witness. See AKINLOLU VS. STATE (2016) 2 NWLR (PT. 1497) 503; AKINMOJU VS. STATE (2000) 6 NWLR (PT. 662) 608 and SHURUMO VS. STATE (2010) 19 NWLR (PT. 1226) 73.” – Per Mohammed Mustapha, JCA

 

DEFILEMENT – THE INGREDIENTS OF THE OFFENCE OF DEFILEMENT

The basic requirement for proving defilement is to establish sex with a child, penetration of the vagina and corroboration. – Per Mohammed Mustapha, JCA

 

OBJECTION – WHETHER THE OBJECTION AS TO VOLUNTARINESS OF A STATEMENT IS SAME AS AN ACCUSED CLAIMING HE DID NOT MAKE THE STATEMENT

There is no objection as to the voluntariness of the statement of the appellant. The objection is that the appellant did not make the statement and that there was no foundation laid for the tendering of the statement. In the case of Ehot v. State (1993) 4 NWLR (Pt. 290) 644, the Supreme Court held:

“In a long line of cases, this Court has explained this position and an accused person alleging that he did not make a statement should not be under an illusion that non est factum amounts to involuntariness. (R V. LGWE (1960) 5 FSC 55; (1960) SCNLR 158; GODWIN IKPASA V. BENDEL STATE (1981) 9 SC. 7, 28; OBIDIOZO & ORS. V. THE STATE (1987) 4 NWLR (PT. 67) 748, 761).”

The denial of the appellant that he did not make the Statement Exhibit D therefore, has nothing to do with admissibility of the Statement. The learned trial judge was therefore, very correct when he admitted the confessional statement Exhibit D and relied on it.” – Per Mohammed Mustapha, JCA

 

ALIBI – MEANING OF THE DEFENCE OF ALIBI – DUTY OF AN ACCUSED RAISING THE DEFENCE OF ALIBI – WHERE THE PROSECUTION CAN FIX THE ACCUSED AT THE SCENE OF THE CRIME

The defense of alibi when raised in a criminal trial, means that the accused person was somewhere other than where the prosecution alleges he was at the time the crime charged was allegedly committed. It simply captures the physical impossibility of the accused person being in two places at the same time. When an accused person raises the plea of alibi, he is simply saying that he could not have committed the offence he was charged with, because he was at a different place completely separated from the scene of crime, and at the material time the crime was committed.

The law however requires that, an accused person who relies on the defense of alibi, raises it at the earliest opportunity he had of doing so. He must also supply full particulars as to his location, the persons he was with at the particular time in terms of their names and addresses; and what he was doing at the location mentioned; SEE EKE V. THE STATE (2011) 3 NWLR (PT. 1235) 589; SHEHU V. STATE (2010) 8 NWLR (PT.1195) 112; IKUMONIHAN V. STATE (2018) LPELR – 44362 (SC) and ESENE V. STATE (2017) LPELR – 41912 (SC).

In this case, the appellant was clearly identified by the PW1 as the culprit. Even if the witness were unavailable for some reasons, failure to call her will not be fatal to the prosecution’s case, because it is not the law that failure to call an eye witness who is shown to be unavailable is fatal to the prosecution’s case, where the case would otherwise be proved by the prosecution; SEE UMAR V. STATE (2015) LPELR-25960(CA) (PP. 38 PARAS. C); and in any event, that evidence was corroborated. Besides that, there is no witness, and nothing else to suggest that he was not at the scene of the crime.

Where as in this case, the prosecution adduces sufficient evidence to fix the appellant at the scene of the crime, at the material time, the alibi is destroyed, any further investigation as suggested by the appellant becomes needless; see ACHIBONG V. STATE (2006) 14 NWLR part 1000 page 349. As a matter of fact, investigation is not necessary if the evidence unequivocally points to the guilt of the appellant; ADEWUNMI V. STATE (2015) 10 NWLR part 1521 page 514. – Per Mohammed Mustapha, JCA

 

COURTS – CONDUCT OF COURTS IN DISCHARGING THE DUTY TO PRONOUNCE ON ALL ISSUES

While a court is generally expected to pronounce on all issues; See OLOWOLAGBE V. BAKARE (1998) 2 NWLR (PT. 543) 528 AT 534 and UKPAI V. OKORO (1983) 2 SCNLR 380. However, the consequence of a Court not complying with this general rule depends on the facts and circumstances of each case; See STATE V. AJIE (2001) 7 SCNJ 1 AT 10 and BAMAIYI V. STATE (2001) 4 SCNJ 103. – Per Mohammed Mustapha, JCA

 

PROSECUTION – THE DISCRETION OF THE PROSECUTION IN DETERMINING THE DOCUMENTS TO TENDER AND THE WITNESSES TO CALL

It is the prerogative of the prosecution to decide, always, what documents to tender and which witnesses to call, after all it is the prosecution’s case, to sink or swim.

“The extra-judicial statement that appellant’s counsel harped on was not tendered in evidence as an exhibit and so it cannot be a subject of discourse, scrutiny or analysis in this appeal. The prosecution is not required by the law to tender the statement that a prosecution witness made to the police. It is the duty of the defense at the crucial stage to demand for such statement for the purpose of cross-examination of the witness as to his credit only. Where such a statement is not tendered in Court, the Court will not do the inquisitorial work of fishing out the statement in the record of appeal to consider it, not even at the invitation of counsel. The document harped on by appellant’s counsel was not tendered at the trial Court as an exhibit and so this Court will not consider it. See OZAKI V. STATE (1990) 1 NWLR (PT. 124) 92, ATTAH V. STATE (2010) 10 NWLR (2010) 9 (PT. 1201) 190, NWABUEZE V. PEOPLE OF LAGOS STATE (2014) 3 NWLR (PT.1394) 401, UMAR V. STATE (2014) 3 NWLR (PT. 1425) 497 and LUCKY V. STATE (2016) 13 NWLR (PT. 1528) 128.” Per Ekanem JCA. – Per Mohammed Mustapha, JCA

 

COURTS – WHERE A COURT DOESN’T CONSIDER ALL THE ISSUES JOINED BY PARTIES BEFORE IT

Now, having said that it is necessary to point out that, failure on the part of a Court to consider all the issues that have been joined by the parties and raised before it for determination, may or may not always result in the setting aside of the decision reached depending on whether or not a miscarriage of justice is occasioned thereby. It is for this reason that the supreme court held IN UKA V. IROLO (2002) 7 SCNJ 137 AT 164, 168 that:

“… It is a misdirection to say that because the trial Judge fails to resolve an issue before him there is a breach of fair hearing rule. It is also a misdirection to say that where there has been a miscarriage of justice as regards an issue all other findings in the Judgment are perverse… To constitute a miscarriage of justice, there must be such a departure from the rules which permeates all judicial procedure as to make what happened not in the proper sense of the word a judicial procedure at all.” – Per Mohammed Mustapha, JCA

 

JUDGMENT – WHERE A JUDGMENT IS DEEMED FLAWED

A Judgment is not bad merely because the Judge has not set out seriatim his reasons on each of the specific complaints; SEE AGU V. NNADI (2002) 12 SCNJ 238 AT 248-249. A Judgment is only flawed if a vital or crucial issue in the case is left unresolved, and it is not so in this case. The determination of whether a vital issue has been left unresolved, however, depends on what the essential issues in the case are and how the Court has dealt with them. This court is satisfied that the lower court sufficiently dealt with all the issues necessary for the effectual determination of the case before it; see LAWAL V. MAGAJI & ORS (2009) LPELR-4427(CA) (Pp. 39-44 paras. E-E). – Per Mohammed Mustapha, JCA

CASES CITED

Non Available

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Criminal Law of Lagos State

3. Evidence Act, 2011

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