Case of desecration of a child under 11: evidence by the prosecution

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At the Supreme Court of Nigeria, Holden in Abuja on Friday 8th April 2022

Before Their Lordships

Marie Ukaego Peter-Odili

Kudirat Motonmori Olatokunbo Kekere-Ekun

John Inyang Okoro

Abdu Aboki

Ibrahim Mohammed Musa Saulawa

Judges, Supreme Court

SC.667/2020

Between

Maduabuchi Onwuta Appellant

And

Lagos State Respondent

(Lead Judgment rendered by Honorable Mary Ukaego Peter-Odili, JSC)

Facts

On November 26, 2013, the victim’s mother was at home with her sixteen-month-old daughter. She needed to bathe, so she took the victim to the Appellant’s room for treatment. When the mother finished taking her bath, the victim approached her mother, pointing to her pants and saying “you see, you see”. The mother checked his pants and discovered blood on them. She quickly transported the girl to the health center, where it was confirmed that the girl had been defiled. Given the situation, the mother made a statement 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 home alone with her daughter and the appellant, suggesting that only the appellant could have defiled her daughter.

The Appellant was charged in the Lagos State High Court with one count of soiling a 16 month old baby left in his care when the mother went to take a shower, contrary to Rule 137 of the Penal Code, Ch. 17, vol. 3, Laws of the State of Lagos. At trial, the respondent introduced into evidence the victim’s mother’s statement (P1), the blood-stained diaper (P2), the victim’s pants (P3), the condom (P4), the photo (P5), medical report (P6), syringe (P7) and Appellant’s statement (P8). Four witnesses were called by the Prosecutor, while the Appellant testified for his defence. Exhibit P6, the victim’s medical examination report admitted into evidence, revealed that the victim presented to the hospital within 48 hours of the incident with bruises on or around her vagina and ruptured hymen which has been broken and bridged.

The caller, who testified that the victim’s mother is his sister, said he was alone in the room with the victim when the incident occurred, although his girlfriend and a housekeeper (PW 4) also lived in the house. He denied soiling the child and said in his defense that his girlfriend had 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 offense charged. He was found guilty and sentenced to twenty-five years in prison. On appeal to the Court of Appeal, the Court of Appeal upheld the conviction and sentence entered by the trial court. The Appellant then appealed to the Supreme Court.

Questions to be determined

The following issues were considered by the tribunal in its decision on the appeal:

1. Was the Court of Appeal correct in confirming the judgment of the trial court without ruling on the failure of the investigating police officer to investigate the appellant’s defense that the crime was committed by someone else the day before, when the baby were heard crying uncontrollably from their neighbor’s house.

2. Was the Court of Appeal correct in concluding that the contradictions in the case of the prosecution witnesses were not sufficiently fundamental to vitiate the conviction and the sentence?

3. Was the Court of Appeal correct in saying that the prosecution witnesses were not confronted with contradictions in their statements made to the police?

arguments

Counsel for the Appellant argued that the lower courts were wrong to assert that the Prosecution had proven its case beyond a reasonable doubt, despite the lack of investigation and resolution of the defense of the Appellant that the offense had been committed the day before. He cited various authorities in support of his position, including ORJI v STATE (2008) 10 NWLR (Pt. 1094) 31. He further submitted that the lower courts failed to resolve the contradictions in the testimonies of the victim’s mother (PW1) and the housekeeper (PW4), testimonies relating to the defense of the Appellant and therefore fatal. to the prosecution case.

Responding to submissions, counsel argued on behalf of the respondent that the result of the medical examination was neither disputed nor contested, and should therefore be taken as accepted by the appellant and relied upon by the court as credible evidence – MAGAJI v NIGERIAN ARMY (2008) 8 NWLR (Pt. 1089) 338. He argued that the Prosecution presented compelling and credible evidence, which pointed directly to the Appellant as the person who committed the offence. The Appellant was fixed at the scene of the crime, thus destroying the alibi defence. Lawyer urged court not to interfere with competing findings of lower courts, where there is no miscarriage of justice or perversity – BELLO versus FRN (2018) LPELR-44465(SC).

Judgment and justification of the Court

The court prefaced the determination of the case by reiterating that the Prosecution may rely on any of the following to establish the accused’s guilt: – (1) the accused’s confession statement; (2) direct eyewitness account of one or more witnesses; and (3) circumstantial evidence. The above follows the principle of the criminal justice system that an accused is presumed innocent until proven guilty by the prosecution. However, proof beyond a reasonable doubt is not the same as proof beyond a doubt or proof to custody. Once the guilt of the accused is established with cogent and conclusive evidence, a degree of duress consistent with a high level of probability, the requirement is satisfied – AYINDE versus STATE (2019) LPELR-47835(SC).

The Appellant was charged with desecration. The law is settled that, to establish the offense of desecration of a girl under eleven, the Prosecution must establish the essential elements of the offense – (a) that the accused/appellant had sexual intercourse with the child who was under the age of eleven; (b) there has been penetration into the vault of the vagina; (c) the child’s testimony must be corroborated. The elements of defilement are the same as those of rape, except that for defilement it does not matter whether the act was committed with or without the consent of the child. It is the well-established position of the law, that a girl under the age of eleven is a child, and therefore not capable of consenting to sexual relations. The court would consider that she did not consent, even if she consented BONIFACE ADONIKE vs THE STATE (2015) 7 NWLR (Pt. 1458) 237 at 284-285. Counsel for the Appellant did not dispute that the victim was desecrated. The evidence before the trial court and the medical report clearly support this position. The law is trivial that a court is bound to act on credible evidence when it is uncontested and uncontested – OFORLETE c. THE STATE (2007) 7 SCNJ 162 to 179, 183 and 184.

Furthermore, the caller maintained that he had not defiled the victim, as she had been seen crying the day before the incident when she was taken to a neighbor across the street. the street. However, in cross-examination, the appellant admitted that he had not been home the day before when the baby was said to have cried. He also admitted in cross-examination that he was alone in the room with the baby and did not know there was a bloodstain on his pants. Counsel for the Appellant’s argument that he could not have known if there was a bloodstain while the baby was in a diaper amounts to testifying in counsel’s factum. It does not have the force of law. A last written address, however brilliantly drafted, cannot serve as proof. Moreover, from an ethical point of view, the lawyer is not expected to also serve as a witness in a case. This would run counter to Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007. LAWALI v STATE (2019) LPELR-46405.

On the attorney’s assertion that the lower court did not rule on the fact that the investigating police officer failed to investigate the defense that the baby was crying a day before the incident, the Supreme Court ruled the defense illogical. The court found that an uncontrollable cry could not last more than a day in such a tender victim, without the mother noticing and the situation being corrected. It is also inconceivable that the mother of a child who was allegedly raped in this way would give that child to the Appellant the next day, without addressing the reason for the inconsolable crying.

Regarding the argument that there were contradictions in the prosecution’s evidence, the court held that in some cases, circumstantial evidence may be more powerful than direct evidence, which proves or disproves a fact directly – STATE vs. SUNDAY (2019) LPELR-46943(SC). In this case, the victim was in the care of the caller who was alone with her in the bedroom, as the girlfriend was on an errand. He was the only man at home with the victim. It is the law that before a contradiction can be established between the testimony of a witness and his previous statement, the specific part of the previous statement purporting to contradict the testimony of the witness must be brought to the attention of the witness. for his explanation OLAOYE v STATE (2018) 8 NWLR (Pt. 1621) 281 at 309. Prosecution witnesses in this case were not confronted with the perceived contradictions. Whatever the contradiction seen from afar, did not remove the Appellant from the crime scene where the victim was desecrated. For the contradiction to affect the case of the prosecution, it must be substantial and go to the merits of the case. It’s not all the minor contradictions in the evidence that count; for a court not to believe a witness, his contradiction in his testimony must be substantial.

The Court found that the Appellant was unable to overcome the hurdle that would require the Supreme Court to intervene in the concurrent factual findings of the two lower courts.

Appeal dismissed.

Representation

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

ERAgu, Deputy Director, Lagos Ministry of Justice; F. Pius-Anyiador, Deputy Advocate General; OO Osunsanya, Deputy General Counsel for the Respondent.

Reported by Optimum Publishers Limited, Publishers of Nigerian Monthly Legal Reports (NMLR)(A subsidiary of Babalakin & Co.)

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