Position of the Law as Regards Taking the Evidence of a Child under 14 Years

INTRODUCTION:

This appeal borders on the Offence of Sexual Assault.

CASE TITLE: MATHEW v. STATE OF LAGOS (2023) LPELR-60684(CA)

JUDGMENT DATE: 17TH JULY, 2023

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE (Offence of Sexual Assault)

LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SUMMARY OF JUDGMENT:

FACTS:

The Defendant/Appellant was arraigned before the High Court of Lagos State, Ikeja Judicial Division on a single count of Information for the offence of Sexual Assault by Penetration contrary to Section 261 of the Criminal Law, Ch. C17, Vol. 3, Laws of Lagos State, 2015. ​

The Appellant is the driver of a parent, whose two children are pupils of Women Society Nursery and Primary School, University of Lagos, Akoka, Lagos. He normally drops the children of his Boss at the school and returns to pick them up after closing. The Appellant also used to pick up his Boss’ children after closing from school together with other children in the class the Prosecutrix after closing hours to take them to a Lesson Centre organized by the Prosecutrix’s Class Teacher, Mrs. Madumere Charity.

It was alleged that the Appellant penetrated the Prosecutrix’s vagina with his finger when he went to pick up his Boss’ children at Lesson Centre after closing hours inside Mrs. Madumere’s class at the Women Society Nursery and Primary School, the University of Lagos, Akoka, Lagos, on or about the 23rd March, 2019. The Appellant was arrested on 25th March 2019 when he went to the school to pick up the children of his Boss. He was arrested with three others including Mrs. Madumere, the Class Teacher of the Prosecutrix.

This was a sequel to a report lodged by Mr. Adebisi Arewa, the father of the Prosecutrix, who was informed by the Prosecutrix and her elder sister of what happened to her when he confronted her after she complained to her elder sister of experiencing painful urination.

The Defendant/Appellant pleaded not guilty to the charge. During the trial, both the Prosecution/Respondent and the Defendant/Appellant respectively called four witnesses and tendered some exhibits. At the conclusion of the trial, learned counsel for the Defendant and that of the Prosecution filed final written addresses which they adopted as their respective submissions. In a judgment delivered on 10th February, 2022, the learned trial Judge, found the Defendant guilty and convicted him accordingly. The Defendant was subsequently sentenced to life imprisonment.

Peeved by his conviction and sentence, the Appellant appealed to the Court of Appeal.

ISSUES:

The appeal was determined on a lone issue viz:

“Whether the Appellant’s conviction and sentence to life imprisonment for sexual assault by penetration are not perverse, when the Prosecution totally failed to prove the charge against the Appellant beyond reasonable doubt, the absence of fair trial as well as the use of incredible evidence of the Prosecutrix?”

DECISION/HELD:

On the whole, the appeal was allowed. The Appellant was discharged and acquitted.

RATIOS:

• CRIMINAL LAW AND PROCEDURE – OFFENCE(S) – Ingredients the prosecution must prove to establish the offence of sexual assault
• EVIDENCE – HEARSAY EVIDENCE – Meaning and nature of hearsay evidence
• EVIDENCE – COMPETENCE OF A CHILD – Position of the law as regards taking the evidence of a child under 14 years
• EVIDENCE – CONTRADICTION IN EVIDENCE – Duty of court where there are contradictions in the evidence of witness(es)