Onwuta V. State Of Lagos (2022)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

This is an appeal against the judgment of the Court of appeal, Lagos Division or lower Court or Court below, delivered on the 27th day of July, 2020, Coram: Joseph Shagbaor Ikyegh JCA, Tijjani Abubakar JCA (as he then was) and Gabriel Omoniyi Kolawole JCA which affirmed the decision of the High Court of Lagos State delivered on the 25th day of January, 2018 per S.S. Ogunsanya J.

The trial High Court had found the Appellant guilty of the one count charge of defilement of a 16 month old baby who was left in his care when the mother went to take a shower which offence is contrary to Section 137 of the Criminal Code Ch. 17 Vol.3, Laws of Lagos State. Appellant was convicted and sentenced to 25 years imprisonment.

BACKGROUND FACTS

The case of the Respondent was presented by PW1 – PW4. Nkiru Ezema (PW1) the victim’s mother, Sgt. Iyabo Olaniyan (PW2) the Investigative Police Officer from Idimu Division of Nigeria Police Force, Dr. John Ousegun Bankole (PW3) and Chidera Ozioko (PW4). The prosecution also tendered Eight (8) Exhibits P1-P8 which were all admitted in evidence. Exhibit P1- Statement of PW1, P2- Diaper stained with Blood, P3- Pant, P4- condom, P5- camera, P6- Medical Report, P7- Syringe, P8- Statement of the Defendant. On the 19th October, 2016, PW1 was recalled for further cross-examination before the defence opened. The Defendant testified as DW1 and did not call any other witness or tender any exhibit.

The case of the Respondent was that on the 26th of November 2013 the survivor was a year and 4 months old and was taken by her mother to the Defendant’s room in his care in order to take her bath. That after she had her bath, that her daughter approached her pointing to her pant saying mummy “see see”. That she checked her daughter’s pant to discover blood in it; she immediately took her daughter to the health centre where she was informed that her daughter had been defiled. She made a report at the Police Station which led to the arrest of the Defendant. That on the day in question it was only herself, her daughter and the defendant that were in the house and no other person than the Defendant could have defiled her daughter.

​

The medical examination report of the victim admitted as Exhibit P6 revealed that the victim reported in the hospital within 48 hours of the incident with bruises on or around her vagina and a ruptured hymen. The hymen had been broken and bridged.

The medical Doctor testified as PW3 and confirmed that there were multiple bruises which indicated repeated and forceful trauma in the victim’s genitals. PW4- Chidera Oziko testified as per Statement she made in Exhibit P8, while being cross-examined, PW4 stated that she did not see the Defendant touch the victim as she was in the backyard washing clothes but confirmed that she saw PW1 when she came outside with the victim and said somebody had tampered with the victim. She also identified Exhibits P2 and P3.

In his defence, the Appellant testified that PW1 is a sister to him and that on the 26th November, 2013, between the hours of 10.30 and 11am, PW1 prepared breakfast and when he was lying down she brought her baby when she wanted to take her bath. DW1 stated that there were four people in the house; PW1 – Nkiru, his girl-friend, PW4 the house girl and himself. He stated that PW1 told him she was going to the health centre as she saw blood stain in the baby’s pant. He further stated that a day before the incident that PW1 took her baby Favour across the street and his girl-friend noticed that the baby was crying. While being crossed-examined, he confirmed that he was with the baby when PW1 went to take her bath and that she was brought to him, PW1 did not complain that there was blood stain before she dropped the baby. It was when she noticed the blood stain that she woke him up and told him. He confirmed that on the day in question that his girl-friend was not with him in his room that the house girl PW4 was not with him in his room. DW1 further stated that it was only the baby Favour and himself that were in the room and he did not witness the incident that occurred across the street the previous day as he was not at home.

On the 13th January, 2020, the date of hearing, learned counsel for the Appellant, Prof. Bankole Sodipo SAN adopted the brief of argument filed on 16/10/2020 and a reply brief filed on 24/9/2021 and deemed filed on 13/1/2022. He nominated three issues for determination viz:-

1. Whether the Court of Appeal was right in upholding the judgment 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 previous day where the baby was heard crying uncontrollable from their neighbours’ house. This issue is derived from Ground One (1) of the Notice of Appeal.
2. Whether the Court of Appeal was right in holding that the contradictions in prosecution witnesses’ case was not fundamental enough to vitiate the conviction and sentence. Grounds Two (2) and Four (4) of the Notice of Appeal.
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: Ground Three (3) of the Notice of Appeal.

Mrs. E.R. Agu, Deputy Director, Lagos State Ministry of Justice for the respondent presented two issues for determination, as follows:-

ISSUE 1

Whether the Court of Appeal was right in upholding the judgment 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 previous day where the baby was heard crying uncontrollably from their neighbour’s house. (Ground 1 of the Notice of Appeal.