IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA on Friday, the 8th day of April, 2022

Before Their Lordships

Mary Ukaego Peter-Odili

Kudirat Motonmori Olatokunbo Kekere-Ekun

John Inyang Okoro

Abdu Aboki

Ibrahim Mohammed Musa Saulawa

Justices, Supreme Court

SC.667/2020

Between

Maduabuchi Onwuta Appellant

And

The State of Lagos Respondent

(Lead Judgement delivered by Honourable Mary Ukaego Peter-Odili, JSC)

FACTS

On 26th November, 2013, the victim’s mother was at home with her sixteen-month-old daughter. She needed to take her bath, hence, she took the victim to the Appellant’s room for care. When the mother finished taking her bath, the victim approached her mother, pointing to her pant and saying “see, see”. The mother checked her pant and discovered blood on it. She quickly rushed the daughter to the health centre, where it was confirmed that the daughter was defiled. Given the situation, the mother made a report at the Police Station, following which the Appellant was arrested. The victim’s mother informed the Police that on the day of the incident, she was at home alone with her daughter and the Appellant, thereby, suggesting that only the Appellant could have defiled her daughter.

The Appellant was charged before the High Court of Lagos State on a one-count Charge of defilement of a 16-month-old baby left in his care when the mother went to take a shower, contrary to Section 137 of the Criminal Code, Ch. 17, Vol. 3, Laws of Lagos State. At the trial, the Respondent tendered in evidence, the Statement of the Victim’s mother (P1), the diaper stained with blood (P2), the victim’s pant (P3), condom (P4), camera (P5), medical report (P6), syringe (P7), and statement of the Appellant (P8). Four witnesses were called by the Prosecution, while the Appellant testified in his defence. Exhibit P6, the medical examination report of the victim admitted in evidence, revealed that the victim reported at the hospital within 48 hours of the incident, with bruises on or around her vagina and a ruptured hymen which was broken and bridged.

The Appellant, who testified that the victim’s mother is his sister, stated that he was in the room alone with the victim when the incident occurred, though his girlfriend and a house help (PW 4) also lived in the house. He denied defiling the child, and stated in his defence that his girlfriend noticed the child crying a day before the incident, when the mother took her across the street.

The trial court found the Appellant guilty of the offence charged. He was convicted, and sentenced to twenty-five years imprisonment. On appeal to the Court of Appeal, the appellate court confirmed the conviction and sentencing by the trial court. The Appellant further appealed to the Supreme Court.

ISSUES FOR DETERMINATION

The following issues were considered by the court in its determination of the appeal:

1. Whether the Court of Appeal was right in upholding the judgement of the trial court without making a pronouncement on the failure of the Investigating Police Officer to investigate the Appellant’s defence that the crime had been committed by someone else the day before, when the baby was heard crying uncontrollably from their neighbour’s house.

2. Whether the Court of Appeal was right in holding that the contradictions in Prosecution witnesses’ case were not fundamental enough to vitiate the conviction and sentence.

3. Whether the Court of Appeal was right in holding that the Prosecution witnesses were not confronted with the contradictions in their statements made to the Police.

ARGUMENTS

Counsel for the Appellant argued that courts below were wrong to have held that the Prosecution proved its case beyond reasonable doubt, in spite of the failure to investigate and resolve the defence of the Appellant that the offence was committed the previous day. He cited various authorities in support of his position, including ORJI v STATE (2008) 10 NWLR (Pt. 1094) 31. He submitted further that the courts below did not resolve the contradictions in the evidence of the victim’s mother (PW1) and the House help (PW4), which evidence relates to the defence of the Appellant and therefore, fatal to the case of the prosecution.

Responding to the submissions, counsel submitted for the Respondent that result of the medical examination was neither controverted nor challenged, and so, it should be taken as accepted by the Appellant and relied on by the court as credible evidence – MAGAJI v NIGERIAN ARMY (2008) 8 NWLR (Pt. 1089) 338. He argued that the Prosecution presented cogent and credible evidence, which point directly at the Appellant as the person who committed the offence. The Appellant was fixed at the scene of the crime, thereby destroying the defence of alibi put forward. Counsel urged the court not to interfere with the concurrent findings of the courts below, when there is no miscarriage of justice or perversity – BELLO v FRN (2018) LPELR-44465(SC).

Court’s Judgement and Rationale

The court prefaced the determination of the case by reiterating that the Prosecution can rely on any of the following for establishing the guilt of the Defendant: – (1) confessional statement of the Defendant; (2) direct eyewitness account of a witness(es); and (3) circumstantial evidence. The foregoing is a follow-up of the principle in the criminal justice system, that an accused person is presumed innocent until the prosecution establishes his guilt. Nevertheless, the notion of proof beyond reasonable doubt, is not the same as proof beyond all shadow of doubt or proof to the hilt. Once the guilt of the accused person is established with compelling and conclusive evidence, a degree of compulsion, consistent with a high level of probability, the requirement is satisfied – AYINDE v STATE (2019) LPELR-47835(SC).

The Appellant was charged with defilement. The law is settled that, to establish the offence of defilement of a girl under the age of eleven years, the Prosecution must establish the essential elements of the offence – (a) that the accused/appellant had sex with the child who was under the age of eleven years; (b) that there was penetration into the vault of the vagina; (c) the evidence of the child must be corroborated. The elements for defilement is the same as rape, save that for defilement, it is immaterial whether the act was done with or without the consent of the child. This is the well laid down position of the law, that a girl under the age of eleven is a child, and so is not capable of consenting to sex. The court would hold that she did not consent, even if she did consent – BONIFACE ADONIKE v THE STATE (2015) 7 NWLR (Pt. 1458) 237 at 284-285. Counsel for the Appellant, did not dispute the fact that the victim was defiled. The evidence before the trial court and the medical report, clearly support this position. The law is trite that, a court is duty bound to act on credible evidence where it is unchallenged and uncontroverted – OFORLETE v THE STATE (2007) 7 SCNJ 162 at 179, 183 and 184.

Further, the Appellant contended he did not defile the victim, as she was seen crying the day before the incident when she was taken to a neighbour across the street. Under cross-examination however, the Appellant admitted that he was not at home the day before, when the baby was said to be crying. He also admitted under cross-examination that he was in the room alone with the baby, and he was not aware there was blood stain on her pant. The argument by counsel for the Appellant that he could not have known if there was blood stain as the baby was wearing diaper, amounts to giving evidence in counsel’s brief. This does not have a legal force. A final written address, no matter how brilliantly couched, cannot take the place of evidence. Also, ethically, counsel is not expected to double as witness in a case. Doing this would run contrary to Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007. LAWALI v STATE (2019) LPELR-46405.

On the contention of counsel that the lower court did not make pronouncement on the failure of the Investigating Police Officer to investigate the defence that the baby was crying a day before the incident, the Supreme Court adjudged the defence as illogical. The court held that an uncontrollable cry would not go on beyond the day in a victim so tender, without the mother taking notice and having the situation addressed. It is also inconceivable for the mother of a child who would have been so violated to give such child to the Appellant the next day, without addressing the reason for the inconsolable crying.

Regarding the argument that there were contradictions in the evidence of the prosecution, the court held that in certain cases, circumstantial evidence may be more powerful than direct evidence, which proves or disproves a fact directly – STATE v SUNDAY (2019) LPELR-46943(SC). In this instance, the victim was in the care of the Appellant who was alone with her in the room, as the girlfriend was running an errand. He was the only male at home with the victim. It is the law that before any contradiction can be established between the evidence of a witness and his previous statement, the specific portion of the previous statement sought to contradict the witness’ evidence must be brought to the attention of the witness for his explanation – OLAOYE v STATE (2018) 8 NWLR (Pt. 1621) 281 at 309. The prosecution witnesses in this case, were not confronted with the perceived contradictions. Whatever contradiction remotely seen, did not remove the Appellant from the scene of crime where the victim was defiled. For contradiction to affect the case of the prosecution, it must be substantial and go to the root of the matter. It is not every minor contradiction in evidence that matters; for a court to disbelieve a witness, his contradiction in his evidence must be material.

The court held that, the Appellant was not able to surmount the hurdle which would impel the Supreme Court to interfere with the concurrent findings of facts of the two courts below.

Appeal Dismissed.

Representation

Professor Bankole Sodipo, SAN with Daniel Ozoma for the Appellant.

E.R.Agu, Assistant Director, Lagos Ministry of Justice; F. Pius-Anyiador, Assistant Chief State Counsel; O.O. Osunsanya, Assistant Chief State Counsel for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)