THE STATE (COMPLAINANT)

v.

SAMUEL ADEGBOYE (ACCUSED)

(1971) All N.L.R. 404

Division: High Court of Lagos

Date of Judgment: 12th March, 1971

Case Number: SUIT NO. LA/2C/1971

Before: Gomes, J.

Criminal Trial.

HELD:

(1)     Although in cases of rape and sexual offences against women and girls a court may convict on the uncorroborated evidence of the prosecution yet the court must warn itself that it is dangerous to do so.

(2)     In view of the evidence adduced against the accused in respect of the first count the court held that no prima facie case had been made out against the accused in respect of the first count. Consequently he must be discharged and acquitted on that count.

(3)     A confession properly proved in law needs no corroboration to found a conviction although in practice there is invariably some corroboration.

(4)     The distressed condition of the complainant is quite clearly capable of amounting to corroboration. In this case the evidence of the distressed condition of the 1st prosecution witness and coupled with all the surrounding circumstances of the case the court was convinced that there was ample corroboration as required by law.

(5)     The credibility of evidence of any kind is a question for the jury or where there is no jury for the judge as a judge of fact. In this case the court was convinced that the accused was not a witness of truth and his retraction was an after-thought.

Accused convicted on count 2.

Cases referred to:

R. v. Baskerville, (1916) 2 K.B. 658.

R. v. Hughes, (1949) 33 C.A.R. 59.

R. v. Sykes, 8 C.A.R. 233.

Crown v. Ajayi Omokora, 7 W.A.C.A. 146.

Edet Obosi v. The State, (1965) N.M.L.R. 119.

Act referred to:

Criminal Code s. 218.

CRIMINAL TRIAL

SUIT NO. LA/2C/1971.

Somorin, Senior State Counsel, for the Complainant.

Gomes, J.:-The accused in this case, stands charged on two counts. The 1st Count is that he had unlawful carnal knowledge of Veronica Momodu a girl of the age of 9 years contrary to Section 218 of the Criminal Code. The 2nd Count is that he unlawfully and indecently dealt with Veronica Momodu a girl under the age of 13 years.

The prosecution called six witnesses. The case for the prosecution briefly is as follows: On 18th July, 1970, Veronica Momodu, the 1st P.W. was hawking groundnuts for sale along a street not very far from No. 17, Ailara Street, Onike, Yaba, where she lives with her parents. The accused who is a painter was standing in front of a house; he was painting when he called her with the intention of buying some groundnuts. The 1st P.W. went to the accused. On getting near the accused, the 1st P.W. stood in front of the house and the accused invited her into the house. The accused according to evidence of the prosecution refused to enter. The accused then carried the tray containing the groundnuts that the 1st P.W. was hawking into the house. He returned later and carried the 1st P.W. into the house. He held her hands and removed her pants. He laid her on the ground and had sexual intercourse with her. During the sexual intercourse, blood suddenly gushed out from her vagina. The accused then got up from the 1st P.W., picked up a singlet near by and handed it to her to use in cleaning herself. The 1st P.W. did as she was told and then put on her pants. She left for home. On getting to the house, she reported the incident to her mother. The mother called the inmates and all of them including the uncle of the 1st P.W. went to the scene of incident. The accused was met there. The 1st P.W. repeated her story in the presence of the accused and the uncle of the 1st P.W. asked the accused what really happened. The accused in his reply stated "I merely played with the girl." The accused was taken to the Police Post at the University of Lagos. At the Police Post the accused was questioned by the police and he replied "I merely inserted my finger into her vagina." Later the accused, 1st P.W. and her parents were referred to Denton Street Police Station, Ebute-Metta. At Denton Street Police Station, the accused was again questioned by the police and he replied that he only played with the 1st P.W. by inserting his finger into her vagina. The 1st P.W. was then taken to the Island Maternity Hospital for treatment. She was examined and detained for five days. Her pant was removed by her mother and handed to the police. After her discharge, she was examined by Dr Alakija 3rd P.W. who assessed her age as 9 years.

The Medical Officer, Dr Ojo, 2nd P.W. who treated the 1st P.W. gave evidence and stated that there were blood streams from the vagina on both thighs and legs and that there was laceration of the perenium. In his opinion this laceration could be caused by the finger, an instrument or any blunt object. Three other people that gave evidence are the 4th P.W. He examined the pant and the singlet. He confirmed that they showed human blood stains but none of them showed human seminal stains. Furthermore that the girl looked generally frightened and nervous. When cross-examined by the accused he stated "I could not say whether or not the singlet belong to you. I do not know whether the pant was yours or not. I was not asked to do the blood-grouping by the police." The 5th P.W. Maria Abu was the mother of the 1st P.W. The 1st P.W. reported the matter to her. She went with the inmates and some soldiers to the scene of incident and after questioning the accused, he was arrested and taken to the police station. The only other important thing she said in evidence was that the police later took the accused from cell and took him to scene of incident. At the scene of incident, the accused produced the singlet with which he wiped the floor.

The last witness for the prosecution was David Opaleye 6th P.W. Corporal No. 27456. He was at Denton Street, Ebute-Metta, on 18th July, 1970 when this case was reported and it was referred to him for investigation. He took the 1st P.W. to the hospital and he stated in evidence "I observed that the 1st P.W. was bleeding from her vagina." At the time he took the 1st P.W. to Island Maternity Hospital for treatment, the accused was in custody. He took possession of the pant and on the following day, himself, the mother of the 1st P.W. and the accused proceeded to the scene of incident. On arrival there the accused showed them the vacant house where the incident was alleged to have taken place and later, according to the Police Corporal, he showed them where he threw the singlet at the backyard. He took possession of the singlet. He returned to the station in the presence of the accused with the pant and the singlet which were forwarded to the Forensic Science Laboratory, Lagos for examination. They were later returned with a report. The singlet and pant were tendered as Exhibits "F & G" respectively and the Report from the Forensic Laboratory as Exhibit "H". The accused was later cautioned and charged in Yoruba and he volunteered a statement, in Yoruba which he signed as being correct. In view of the contents of the statement, the accused was taken before A.S.P. Bamgbade. He read it over to the accused and according to the prosecution, the accused admitted that it was correct and the A.S.P. endorsed it. The statement was tendered and admitted as Exhibit "C". Under cross-examination by the accused this witness stated "I did not take you to the hospital. I had no reason to examine you. You made the statement voluntarily. Nobody beat you." On being questioned by the court the witness stated "It did not occur to me to take the accused to the doctor for examination or for stains of blood on his penis. I did not see any stain on the dress that he said that he had on."

That in brief is the evidence adduced by the prosecution.

After the close of the case for the prosecution, I called on the S.S.C. to convince the court why I should call on the accused to defend himself in respect of the 1st Count.

Section 218 Cap. 42 states "Any person who has unlawful carnal knowledge of a girl under the age of 13 years is guilty of a felony and is liable to imprisonment for life with or without whipping" and the last paragraph of this Section states "A person cannot be convicted of either of the offence defined in this Section upon the uncorroborated testimony of one witness."

The accused in his statement Exhibit "C" stated "It is a fact that I played with the daughter of the complainant whose name I have just known to be called Veronica Momodu this morning 18th July, 1970. But it was my left hand finger that I put into her private part not penis." This statement was made on 18th July, 1970, the day of the incident. Although the girl, 1st P.W. stated the accused had sexual intercourse with her yet the Investigating Police Constable did not care to check the statement of the accused.

The accused was arrested on the day of this incident and according to the 5th P.W. blood was streaming down the legs of the 1st P.W. from her vagina. If the 5th P.W. had investigated this case, any reasonable person would have thought that the accused would have been taken to the hospital for examination and surely some traces of blood would have been found on him. Furthermore, scrapings on his finger should have been sent to the Forensic Science Laboratory for any trace of blood. Finally, the scrapings from the floor should have been taken as well and taken to the Laboratory. Nothing was done. Even his clothes were not sent for examination.

In Page 460 Halsbury's Laws of England 3rd Edition Section 846 it is stated "The corroboration need not be direct evidence that the accused committed the crime, nor need it amount to confirm action of the whole story of the witness to be corroborated, so long as it corroborates the evidence in some respects material to the charge under corroboration. See R. v. Baskerville (1916) 2 K.B. 658. It is sufficient if it is merely circumstantial evidence of the accused's connection with the crime, but it must be independent evidence and it must not be vague-see R. v. Hughes (1949) 33 Cr. App. Report P. 59.

Although in cases of rape and sexual offences against women and girls a Court may convict on the uncorroborated evidence of the prosecution yet the court must warn himself that it is dangerous to do so, but in R. v. Baskerville cited above, it was held that if there is no corroborative evidence the judge should stop the case at the close of the prosecution and direct the jury to acquit the accused.

The S.S.C. when asked as stated above why the accused should be called to defend himself in respect of Count

1 stated "I will not contest the 1st Count that there is corroboration. There is, however, evidence against the accused on the 2nd Count."

In view of the evidence adduced against the accused in respect of the 1st Count and my observation above, I hold that no prima facie case has been made against the accused in respect of the 1st Count. I found him not guilty and he is discharged and acquitted on that Count. I hold that a case has been made out against the accused in respect of the 2nd Count and I then called on him for his defence.

The accused was informed of his rights under Section 287 Cap. 43, C.P.A. He elected to give evidence on oath.

The accused in his evidence denied any knowledge of this matter. He admitted however that he bought some groundnuts from the 1st P.W. on Saturday 11th July, 1970 in company with his colleagues. That was about 10 a.m. He paid for the groundnuts and the 1st P.W. went away. At about 2 p.m. when he was locking up the house after his colleagues had left, some soldiers in civilian dresses entered the premises. They rushed into the premises and started to beat him. He was dragged into the street and the 1st P.W. was asked by the soldiers if he was the person that indecently assaulted her. The 1st P.W. replied "No". The soldiers then instructed the 1st P.W. to say that he i.e. the accused indecently assaulted her. He was rough-handled and taken to the police station. At the police station, he was again beaten and he made a statement to the police. The 6th P.W. Corporal Opaleye called the mother of the complainant out and when they returned Corporal Opaleye was not satisfied with his statement and he was asked to sign Exhibit "C". He denied any knowledge of the singlet Exhibit "F" and that despite his request the police refused to take him to the doctor for examination. Under cross-examination, the accused insisted that he was taken to the police on the 11th July, 1970 and that he was not arrested on 18th July, 1970. He insisted that he was asked to sign Exhibit "C" and he did.

That also in brief is the defence of the accused.

The S.S.C. Mr Somorin addressed the court and placed very great emphasis on the statement of the accused Exhibit "C". He refers to Crown v. Ajayi Omokora 7 W.A.C.A.P. 146, R. v. Sykes 8 C.A.R.P. 233 and few other authorities in support of his contention that the confession of the accused as well as the distressed condition of the 1st P.W. when she was examined by the 2nd P.W. Dr Ojo was sufficient corroboration.

In R. v. Sykes 8 C.A.R.P. 233 it is stated "A confession properly proved in law needs no corroboration to found a conviction although in practice there is invariably some corroboration." The accused denied making the statement and stated that he was forced to sign it. He denied any knowledge of the singlet Exhibit "F" although he admitted having bought groundnuts from the 1st P.W. on the 11th and not on the 18th July, 1970. According to R. v. Sykes quoted above, has the confession been properly proved? The accused was according to evidence taken before a Superior Police Officer and though this is not a general rule of law, once the accused had been taken to the Superior Police Officer, it accords with prudence that this Superior Police Officer should have been called to testify to the confession since from the cross-examination of the accused it was obvious that he was going to retract from his statement and no reason was given why the Officer was not available. The S.S.C. refers to the distressed condition of the 1st P.W. In Crown v. Alan Redpatch, the Lord Chief Justice stated "Mr Harper has argued that the distressed condition of the complainant is no more corroborative than the complaint, if any, that the complainant makes, and that while the latter merely shows that the story is consistent and is not corroborative so the distressed condition is not corroborative. This Court is quite unable to accept that argument. It seems to this Court that the distressed condition of a complainant is quite clearly capable of amounting to corroboration. Of course, the circumstances will vary enormously, and in some circumstances quite clearly no weight or little weight, could be attached to such evidence as corroboration. Thus if a little girl goes in a distressed condition to her mother and makes a complaint, while the mother's evidence as to the girl's condition may in law be capable of amounting to corroboration quite clearly the jury should be told that they should attach little, if any weight to that evidence, because it is all part and parcel of the complaint."

However, the evidence of the distressed condition of 1st P.W. came from an independent source i.e. from the 2nd P.W. and coupled with all the surrounding circumstances of the case, I am convinced that there is ample corroboration as required by law.

In Edet Obosi v. The State 1965 N.M.L.R. P. 119 it is stated "the credibility of evidence of any kind is a question for the jury or where there is no jury for the judge as a judge of fact and it would be wrong to elevate the words approved in Sykes case (3) with a rule that a retracted confession can never be acted on unless it is corroborated in the term in which that term is used in relation to the evidence of a witness."

The retraction of the accused is nothing but a bundle of lies and a figment of his imagination. I will be failing in my duty if I do not here state that this is a simple straight-forward case which was badly investigated.

I have, however, watched the demeanour of the accused as well as the witnesses for the prosecution. I am convinced that the accused is not a witness of truth and his retraction is an after-thought.

I believe as a fact that the accused unlawfully and indecently dealt with Veronica Momodu, 1st P.W., a girl under the age of 13 years.

I found the accused guilty on the 2nd Count as charged.

Allocutors:-I am pleading for leniency.

S.S.C.:-Nothing known against the accused.

Sentence:-Considering the nature of the charge and the age of the 1st P.W. I feel that efforts should be made to curb these kinds of offences.