By Legalpedia

Areas Of Law:

Appeal, Court, Criminal Law And Procedure, Judgment And Order, Law Of Evidence, Practice And Procedure.

SUMMARY OF FACTS:

The Appellant was arraigned before the High Court of Justice, Borno State on two counts of rape contrary to Section 282 and punishable under Section 283 of the Penal Code Law, Cap 102 Laws of Borno State, 1994.

The Complainant one Bola Omojoriowo complained that the Appellant raped her two daughters, Timi Williams and Esther Williams, between the years 2012 to 2019 on several occasions at the Cherubim and Seraphim Church and at other locations in Maiduguri. The Appellant pleaded not guilty to the two-count charge.

He was thereafter convicted on Count one of the Charge and discharged on Count two.

The Court thereafter sentenced the Appellant to a term of 14 years imprisonment and a fine of N200, 000.00. In default of payment of the fine, the Appellant is to serve a further term of two (2) years imprisonment.

Dissatisfied with the judgment of the trial court, the Appellant has appealed to the Court of Appeal.

HELD:

Appeal Dismissed

ISSUES FOR DETERMINATION

Ø Whether, based on the evidence, the trial Court was wrong in holding that the prosecution has proved the guilt of the Appellant beyond reasonable doubt and thus convicted him for the offence of rape.

RATIONES

OFFENCE OF RAPE- STANDARD OF PROOF REQUIRED IN THE OFFENCE OF RAPE “The law is trite that in any criminal offence, such as rape punishable under Section 283 of the Penal Code, the standard of proof remains undiluted as prescribed by our law and orchestrated within the provisions of Section 135 of the Evidence Act, 2011. It provides –

“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or a wrongful act is, subject to the provisions of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not in directly in issue in the action.

(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused.”

Courts have repeatedly pronounced on the prescription of proof beyond reasonable doubt in a host of decisions, some of which are: State V Obobolo (2017) LPELR-48405(SC); Mbang V State (2013) 7 NWLR (Pt. 1352) 48; Adekoya V State (2012) 9 NWLR 68. This standard of proof demands that it is not enough for the prosecution to suspect a person of having committed a criminal offence. There must be evidence, which identified the person accused of the offence. The consequences of the presumption of innocence in favour of a person as enshrined in Section 36(5) of the Constitution is that the burden placed on the prosecution to prove the guilt of the accused person beyond reasonable doubt must be satisfied. Any doubt raised by an accused shall lead the Court to resolve this doubt in favour of the accused person.” PER J.H. SANKEY, J.C.A

PROOF BEYOND REASONABLE DOUBT – IMPLICATION OF PROOF BEYOND REASONABLE DOUBT “Nonetheless, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means that the prosecution should establish the guilt of the accused person with compelling and conclusive evidence. The law will fail to protect the community if it admits of any or all fanciful possibilities to deflect the course of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, then the case is proved beyond reasonable doubt. However, nothing short of that will suffice. See Ofordike V State (2019) LPELR-46411(SC) 8-9, C; State V Obobolo (supra) 17-20, A; Ugwanyi V FRN (2012) 8 NWLR (Pt. 1302) 384, 399, B. PER J.H. SANKEY, J.C.A

PROOF OF CRIMINAL OFFENCES – METHODS OF PROVING CRIMINAL OFFENCES “How is a case proved beyond reasonable doubt? The law has established or approved three methods for proof of criminal offences by the prosecution in any criminal trial. These methods include: (i) By admissions/confessions of the person accused of the crime; (ii) by direct oral evidence i.e. evidence of witnesses who saw and heard; (iii) by circumstantial evidence. In this latter category, it is often said that witnesses can lie, but circumstances do not. In that sense, circumstantial evidence affords better proof beyond reasonable doubt. See Taiye V State (2018) LPELR-44466(SC) 15, A, per Sanusi, JSC; Ugboji V State (2017) LPELR-43427(SC) 29-30, E, per Sanusi, JSC; Bille V State (2016) LPELR-40832(SC) 15, A, per Ngwuta, JSC;Mohammed V State (2007) LPELR-1894(SC) 12, E, per Tobi, JSC; Onuoha V State (1989) LPELR-2704(SC) 7-8, G, per Oputa, JSC; Adio V State (1986) LPELR-183(SC) 22-23, G, per Oputa, JSC.“ PER. J.H SANKEY, J.C.A

TAINTED WITNESS- DEFINITION OF A TAINTED WITNESS “In the case of Egwumi V State (2013) LPELR-20091(SC) 36-37, F, the Supreme Court per Muhammad, JSC held as follows:

“In very many decisions, this Court has held that it is not in every case that blood relationship between the victim or the injured person and the witness for the prosecution that it would be concluded that the witness is a tainted witness whose evidence is unreliable unless corroborated. The accepted definition of a tainted witness is a person who is either an accomplice or who, on the facts, may be regarded as having some personal purpose to serve.

In Abayomi Olalekan V State NSCQLR Vol. 8 (2001) 207 and Ben V State NSCQLR Vol. 27 (2006) 233. This Court has held that the fact of blood relationship between the victim of the offence and the prosecution witness in the trial does not necessarily make the witness a tainted witness, Thus, who is a tainted witness remains a question of fact.” (Emphasis supplied)

PER J.H. SANKEY, J.C.A

TAINTED WITNESS – WHETHER BLOOD RELATIONSHIP BETWEEN A VICTIM AND A PROSECUTION WITNESS, IS SUFFICIENT IN ITSELF TO MAKE THE WITNESS A TAINTED WITNESS “The accepted definition of a tainted witness is a person who is either an accomplice or who, by the evidence he gives, may and could be regarded as having some personal purpose to serve. Evidence of such a witness should be treated with considerable caution. Nonetheless, the fact that there is a blood relationship between a victim and a prosecution witness, without more, is not sufficient in itself to make the witness a tainted witness whose evidence is unreliable unless corroborated. Credible facts must be adduced to establish that the witness had a purpose to serve and the evidence is self-serving. See Idagu V State (2018) LPELR-4434(SC) 44-47, E; Egwumi V State (2013) NWLR (Pt. 1327) 525. Again, in the case of Omotola V State (2009) LPELR-2663(SC) 41-42, D, Oguntade, JSC pronounced on the issue of tainted witnesses as follows:

“Every citizen has the duty to come forward and offer assistance in the diligent detection and prosecution of crime. Their blood relationship with the victim of crime may constitute an additional incentive to come forward to testify in Court in the case. But that in my view cannot be regarded as a basis to describe their evidence as untrue, biased or tainted. I am unable to accept the submission that the evidence of PWs 7, 10 and 11 was lacking in the requisite quality and objectivity just for the reason that they were the children of the deceased. It would have served the interest of the Appellants better if Counsel concentrated on showing that they did not observe what they claimed to have witnessed or that their evidence in some way was incredible. Asking that their evidence be rejected as tainted witnesses just because they were children of the deceased is in my view unhelpful.

Thus, the question of who is a tainted witness remains a question of fact, and the trial Court is most suited to decide whether or not their testimony is reliable; this Court is not equipped to do so – Egwumi V State (supra). It is trite that the issue of credibility of witnesses is the pre-eminent duty of a trial Court, and there is a presumption that its findings are right and correct until the contrary is shown. Thus this Court is slow in interfering with such primary findings.” (Emphasis supplied)

– PER J.H. SANKEY, J.C.A

EVIDENCE OF BLOOD RELATION – WHETHER THE LAW PROHIBITS BLOOD RELATIONS FROM GIVING EVIDENCE “I am convinced that the Appellant’s contention that they are tainted witnesses is baseless because there is no law that prohibits blood relations from testifying for the prosecution at the trial of the person accused of violating and raping their 14 year old daughter and sister. See Adelumola V State (1988) LPELR-119(SC) and Oguonzee V State (1998) LPELR-2357(SC).” PER. J.H SANKEY, J.C.A

CORROBORATION OF EVIDENCE- WHETHER THE EVIDENCE OF A CHILD AND A RAPE VICTIM NEEDS CORROBORATION? “The matter of the corroboration of the evidence of a child and a rape victim has been the subject of several judicial pronouncements, but a reference to a few will suffice. In Isa V State (2016) LPELR-20011(SC), Muhammad, JSC held:

“Corroboration in a rape case is that evidence which tends to show that the story of the victim, the prosecutrix, it is the accused that committed the crime. Such evidence need not be direct. It suffices if it corroborates the said evidence in some material particular to the charge in question. Ezegbo V State NCC 7 page 426. Secondly, where the child is a minor of some discernible age, her sworn evidence need no further corroboration. This Court, in the case of Okoyomon V The State (1973) NSCC, held per Elias, CJN, as follows:

“We may observe that in the very recent case of DPP V Hester (1992) 3 WLR 869, in which there is an authoritative review of nearly all leading authorities on the subject in English Law, the House of Lords held that the unworn evidence of a child could amount to corroboration of the sworn evidence of another child.”

This was in a case where conviction was based mainly on the sworn evidence of two young girls. The prosecutrix was between the age of 11 and 12 years of age.” (Emphasis supplied) See also Natasha V State (2017) LPELR-42359(SC) 32-33, B. Also, in Mohammed V Kano State (2018) LPELR-43913(SC) 27-28, D, Okoro, JSC explained the position of corroboration in a rape case in the following words:

“In a rape case, corroboration means evidence which confirms the evidence of the prosecutrix. It is that evidence which tends to show that the story of the victim, the prosecutrix, is true and that it is the accused person that committed the crime. Such evidence need not be direct as this may not be possible as rape is not committed in the open. It is enough if it corroborates the said evidence in some material particular to the charge in question. However, where the child is a minor of some discernible age, her sworn evidence need no further corroboration. There is no law or statutory provision that in rape cases, evidence of the prosecutrix must be corroborated. However, it is a rule of prudence and the settled course of practice by the Court to seek for corroboration in rape cases.” (Emphasis supplied)

Thus, in respect of the offence of rape, notwithstanding Section 209(1) and (3) of the Evidence Act, Courts have always still looked for some independent evidence to show that the account of the prosecutrix is true, i.e. that the offence was committed by the accused person. This is especially so where the prosecutrix is a child of tender age. Based on the facts of a particular case, the nature of corroborative evidence that could suffice includes, but is not limited to: (a) medical evidence showing some injury to the private part or other parts of the prosecutrix’ body which may have been occasioned in a struggle; or (b) semen stains on her clothes or the clothes of the accused or at the place where the offence is alleged to have been committed – Aliyu V State (2019) LPELR-47421(SC) 18-24, E; Lucky V State (2016) LPELR-40541(SC); Posu V State (2011) 3 NWLR (Pt. 1234) 393; Ezigbo V State (2012) NWLR (Pt. 1326) 318. PER J.H. SANKEY, J.C.A

CORROBORATION – WHETHER CORROBORATION NEEDS TO BE DIRECT EVIDENCE “However, as shown by the authorities cited, corroboration need not be direct evidence that the accused committed the offence charged. It need not amount to a confirmation of the whole account given by the prosecutrix. However, it must be completely credible evidence which corroborates the prosecutrix’ evidence in some aspect material to the charge. As was held in Lucky V State (supra) 47-48, per Rhodes-Vivour, JSC, corroboration is evidence which supports the evidence of the prosecutrix. It is not restricted only to the evidence of a witness pointing to the Appellant as the person who committed the offence. This is evidently because sex is not an act that is usually performed in the presence of a third party. Instead, it is mostly a hidden act performed behind closed doors and away from prying eyes. It is quite rare to get a witness to give evidence on oath that he saw the Appellant have sex with the prosecutrix.” PER J.H. SANKEY, J.C.A

COURT- THE COURT CAN EITHER SUO MOTU OR UPON THE APPLICATION OF A PARTY CORRECT ITS MISTAKES OR OMISSIONS “Even in the unlikely event that the trial Judge had mistakenly referred to the wrong exhibit but arrived at correct findings and conclusion, it goes without saying that Courts are manned by human beings and not by super-natural beings. Being humans, they are prone to commit errors, slips or blunders. Judges did not take oaths not to make mistakes or commit error. Therefore, when such happens, the Court itself is empowered to effect corrections to such clerical slips or accidental omissions, usually on the application of a party or even suo motu – Race Auto Supply Co. Ltd V Akib (2006) LPELR-2937(SC) 19-20, F, per Mohammed, JSC. Where however, such is not undertaken due to inadvertence, then it is left for the appellate Court to consider and weigh the slip and decide whether it is substantial enough to affect the entire decision of the Court. In Eze V Obiefuna (1995) LPELR-1191(SC) 20-21, F, per Onu, JSC held:

“It is the law that it is not every slip of the Court of Appeal that will result in the Judgment being overturned by the Supreme Court. See Udeze V Chidebe (1990) 1 NWLR (Pt. 125) 141. The Law allows the correction of typographical errors or slips or omissions such as the one under consideration.”

– PER J.H. SANKEY, J.C.A

JUDGMENT OF COURT- NATURE OF MISTAKE THAT CAN RESULT IN THE REVERSAL OF A JUDGMENT “For a mistake to result in the reversal of a Judgment, it must be substantial in the sense that it affected the decision appealed against. Where it is an innocuous mis-statement by the trial Judge, it can be taken care of by the Blue Pencil Rule. However, it cannot be corrected on appeal.” PER. J.H SANKEY, J.C.A

MISTAKE OF COURT- DUTY OF AN APPELLATE COURT WHERE THERE EXIST MISTAKE IN THE DECISION OF THE COURT “I am fortified in this finding by the case of Adebayo V AG Ogun State (2008) SCNJ 352, 366-366-367, where the Supreme Court per Niki Tobi, JSC held:

“In order to pick faults in the Judgment of a trial Judge, appellate courts should not take paragraphs or pages in isolation or in quarantine but must take the whole Judgment together as a single decision of the Court. An appellate court cannot allow an appellate court to read a Judgment in convenient installments to underrate or run down the Judgment.”

See also Agu V Nnadi (2003) MJSC 51, 58; Ifeanyi-Chukwu Osondu Ltd V Soleh Boneh (2000) SCNJ 18.” PER J.H. SANKEY, J.C.A

TAINTED WITNESS – DEFINITION OF A TAINTED WITNESS “The accepted definition of a tainted witness is a person who is either an accomplice or who, on the facts, may be regarded as having some personal purpose to serve. See. Nwankwoala v. FRN (2018) LPELR-43891(SC). Also, there is no law that prohibits people with blood relationship with the victim of an offence from testifying in Court see Ukpe V. State(2012) LPELR-19715(CA). Hence, the question of who is a tainted witness is a question of fact. PER E. TOBI,J.C.A

UNCHALLENGED EVIDENCE- WHETHER UNCHALLENGED EVIDENCE CAN BE ADMITTED BY COURT “The evidence of PW4 can be taking as unchallenged and the law on such evidence is clear and settled, which is, it is deemed admitted. see Citi Bank (NIG) Ltd v. Ikediashi (2020) LPELR-49496(SC) and Magaji v. Nigerian Army(2008) LPELR-1814(SC). PER E. TOBI, J.C.A

COURT – WHETHER THE TRIAL COURT CAN SUO MOTU CORRECT A CLERICAL ERROR “Also, the trial Court has the power to suo Motu correct a clerical error see. Shuaibu v. Nigeria-Arab Bank Ltd(1998) LPELR-3067(SC), and. Agbule v. Warri Refinery & Petrochemical Co Ltd(2012) LPELR-20625(SC) as Courts are manned by mortals and not demigods, also, in this appeal, the clerical error alleged by the Appellant cannot be said to have occasioned grave injustice to him or occasioned any miscarriage of justice”. PER E. TOBI,J.C.A

Statutes Referred To:

Evidence Act, 2011

Penal Code Law, Cap 102 Laws of Borno State, 1994.