CASE TITLE: SOFOLUWE v. STATE (2024) LPELR-62452(CA)
JUDGMENT DATE: 16TH APRIL, 2024
JUSTICES: MISITURA OMODERE BOLAJI-YUSUF
GABRIEL OMONIYI KOLAWOLE
BINTA FATIMA ZUBAIRU
DIVISION: IBADAN
PRACTICE AREA: CRIMINAL LAW AND PROCEDURE
FACTS:
This appeal borders on criminal law and procedure.
This appeal is against the decision of the High Court of Ogun State sitting in Abeokuta and delivered on the 11th April, 2019.
On the 28th of August, 2015, a case of sexual inter-course against a child was reported at the Adatan Police Station, Abeokuta, Ogun State, by one Mr. Bruegbo John (PW3) who is the grandfather of the victim, one Esther Afolabi (PW 2) who was 9 years old at the time of the offence. The victim pointed out the appellant as the person who forcefully had sexual intercourse with her and subsequently, the appellant was arrested in connection with the crime. PW 4 (IPO) directed PW3 (Mr Bruegbo John) to take the prosecutrix to Shalom Hospital, Abeokuta for medical examination. PW1 (Medical doctor) examined the victim and found that her vaginal wall was inflamed and she tested HIV positive. After that, PW1 requested that the appellant be tested for HIV. Thereafter, the appellant also tested positive for HIV. The appellant was subsequently arraigned before the trial Court on a two-count charge of having sexual intercourse with a child and grievous bodily harm. The prosecution called its witnesses and tendered exhibits in support of its case, also, the appellant’s extrajudicial statement admitted in evidence.
The appellant, in defence completely denied authorship of the confessional statement but the Court still admitted same in evidence. The appellant testified as DW 1 in defence. At the end of the trial and upon due evaluation of evidence, the trial Court found the appellant guilty, convicted and sentenced the appellant to life imprisonment on count 1 and seven (7) years imprisonment with hard labour on count 2, both sentences to run concurrently.
Dissatisfied with the judgment of the trial Court, the appellant appealed against same.
ISSUES FOR DETERMINATION:
The Court adopted the sole issue formulated by the appellant in the determination of the appeal, thus:
Whether the Respondents at the lower Court discharged the obligation placed on them by law, to sustain a finding of guilty against the Appellant by this Court.
COUNSEL SUBMISSIONS:
The Appellant contended that the Respondent as prosecution at the trial Court failed to prove the 2-Count Charge against the Appellant beyond reasonable doubt because the Appellant is presumed innocent until proved guilty. He relied on Section 135 of the Evidence Act and Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and the cases of STATE V. FADEZI (2018) 18 NWLR (PT.1650); ADONIKE V. STATE (2015) 7 NWLR (PT. 1458) 237 and ENEJI V. THE STATE (2013) LPELR 20393.
In analyzing whether the Respondent proved all the ingredients of the offence of Sexual intercourse with a child, the Appellant itemized the ingredients as follows:
1. That there was penetration of the vagina by the penis.
2. That it was the Appellant who penetrated the vagina of the prosecutrix in this case and;
3. That the prosecutrix is a child.
He relied on ADONIKE V. STATE (2015) 7 NWLR (PT.1458) 237, 285 and ADEOTI V. STATE (2009) ALL FWLR (PT.454) 1450, 1484.
On the offence of grievous bodily harm, the Appellant submits that Section 335 of the Criminal Code law of Ogun State, 2006 requires the Respondent to prove the following:
1. That there was harm
2. That the Defendant caused the bodily harm, disease or infirmity to the prosecutrix
3. That the Defendant did so intentionally or with the knowledge that the act would cause hurt.
4. That the harm was grievous and was not authorized, justified or excused by law.
Appellant argued that the 5 witnesses called by the Respondent failed to prove that it was the Appellant that penetrated the vagina of the prosecutrix and/or caused her grievous bodily harm, that the only evidence which linked the Appellant to the crime is the unsworn evidence of the prosecutrix (a child below 14 years) which was uncorroborated. He cited Section 209(1) and (3) of the Evidence Act; ADEOTI V. STATE (supra), ADONIKE V. STATE (supra); OKOYOMON V. THE STATE (1973) NWLR 292 and AMADI V. STATE (1993) NWLR (PT.314) 644.
The Appellant referred to page 59 of the records and argued that the finding of the trial Court that Exhibits 1-4 (medical reports) pointed to the fact that it is the Appellant who infected the prosecutrix with HIV. That the reports all show that the prosecutrix was infected by HIV but did not corroborate the evidence of the unsworn evidence of the prosecutrix.
Respondent commenced its response with the issue of PW5’s recording of the Appellant’s confessional statement. The Respondent argued that though PW5 hails from Edo, she understands Yoruba, took the confessional statement in Yoruba and explained it to him in Yoruba; that there is nowhere in the records where PW5 admitted that she did not speak Yoruba and her testimony showed that she is fluent in Yoruba. More so, that the testimony of the Appellant showed that he is not a witness of truth; referred to pages 30-31 of the records of appeal.
It was submitted further that the unsworn evidence of PW2 (prosecutrix) is corroborated by PW1, PW3, PW4 and PW5 and Exhibit 5 (confessional statement) as demonstrated in the trial Court’s judgement.
The Respondent argued that PW2 clearly identified the Appellant and linked him to the crime, while the Appellant only denied the authorship of Exhibit 5. Respondent submitted that the Court can admit same in evidence and subsequently evaluate and attach weight to it at the judgment stage. He relied on ABBAS V. STATE (2019) LPELR-48768 (SC) and LASISI V. STATE (2013) LPELR -20183 (SC).
The Respondent submits that the Appellant’s oral statement contradicted the contents of Exhibit 5 and as such the oral testimony is unreliable. He relied on AKPAKPAN V. STATE (2021) LPELR-56220(SC); EGBOGHONOME V. STATE (1993) 7 NWLR (PT. 306); R V. UKPONG (1961) 1 SCNLR, 53 and STEPHEN V. THE STATE (1986) 5 NWLR (PT. 46) 978.
On the offence of sexual intercourse with a child, the Respondent submitted that PW1 was a Medical officer and tendered a medical report that the prosecutrix hymen was absent, that the direct evidence of PW 2 (prosecutrix) linked the accused to the crime and the medical evidence that the prosecutrix was infected with HIV, the same disease the Appellant had at the time of the crime. Furthermore, that the Appellant Confessed to the offence in Exhibit 5 and the circumstances of the Appellant admitting that he knew the victim and he usually sent her on errands also proved that the Appellant is guilty. Arguing further, the Respondent submitted that PW2 was merely 9 years old (a child) at the time the crime was committed. He relied on YUSUF V. THE STATE (2020) LPELR-51158; POSU V. THE STATE (2011) 11 WRN 1 and OGUNBAYO V. THE STATE (2007) 30 WRN 172, 191-192.
DECISION/HELD:
In the final analysis, the appeal was dismissed for lacking merits and the judgment of the trial Court was affirmed.
RATIO:
EVIDENCE – COMPETENCE OF A CHILD: Principles of law as regards taking the unsworn evidence of a child
The law is settled that the unsworn evidence of a child must be corroborated with other pieces of independent evidence before the Court can rely on same to find the accused guilty, see OBRI V. STATE (1997) LPELR-2194(SC) the apex Court held thusly:
“…the Court must not convict on the unsworn evidence of a child such as the P.W.1 unless his evidence is corroborated by some other material evidence in support thereof implicating the accused. See Okabichi & amp; Ors. v. The State (1975) 3 S.C. 135 at 146.” Per OGWUEGBU, J.S.C
Also, in DAGAYYA V. STATE (2006) LPELR-912(SC), it was held thusly: “…in other words, for purposes of conviction, the evidence of a child within the meaning of Section 183(1) of the Act must be corroborated. Learned counsel for the respondent sees evidence of corroboration from the testimonies of PW3, PW5, DW1 and DW2. I think I largely agree with him.” Per TOBI, J.S.C.” Per NIMPAR, J.C.A.
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