The appellant was convicted and sentenced to 4 years' imprisonment on a count of having unlawful carnal knowledge of a girl, without her consent. The trial of the case which started on the 24th day of November, 1965, lasted till 4th September, 1969.

The appellant had set up defences which included total denial, possible case of mistaken identity, alibi and frame up for the offence because of the enmity between him and the 3rd prosecution. Counsel for the Defence also in his submission pointed out fatal contradictions and maintained that the prosecution had not proved its case beyond reasonable doubt. In his allocutus he pleaded in mitigation of sentence the length of time consumed by the trial and the long mental agony suffered by the accused/appellant. The trial Court, before rejecting the alibi did not take into consideration the fact that the Prosecution adduced no evidence about the check of the alibi.

On appeal:-

HELD:

(1)     Any undue delay in any aspect of the administration of justice nearly always tends to defeat the very ends of justice.

(2)     In a case such as this, where much depended on "credibility", it is undesirable that judgment should have been so delayed. Impressions tend to get blurred with the passing of time. Words used, coupled with attitudes, gestures, inflexions or modulation of voice employed when such words are used, normally from the basis of belief. It is desirable, therefore, that when a case turns principally upon questions of fact, a Court of first instance, which has to make the findings of fact, should do so as quickly as possible after the case. Any undue delay in doing so could place the court at a natural disadvantage. Prosecutions, for the same reasons, should not be unduly delayed.

(3)     Before rejecting the alibi, the trial Court ought to have taken into consideration the fact that the prosecution adduced no evidence of any sort about the "check". The appellant "at first opportunity" raised the alibi and so it could not be said to have been an after thought.

(4)     On a proper evaluation of the evidence, there ought to have been a reasonable doubt as to the question of identity and the appellant ought to have been given the benefit of the doubt.

Appeal allowed.

APPEAL from High Court (West)

Okueiyinbo, for the Appellant.

Delano, for the Respondent.

Ademola, J.A.:-On the 5th October, 1970, we allowed this appeal. We shall now proceed to give our reasons for so doing. The appellant was convicted and sentenced to 4 years' imprisonment on a one count information which informed the High Court, Ijebu Ode, that he, "on the 24th day of November, 1965, at Shagamu... had unlawful carnal knowledge of a girl Risikatu Alli, without her consent."

The appellant first appeared before that High Court on 29/9/67 when the case was adjourned to the 14th and 15th December, 1967. The hearing of the case actually started on the 28th March, 1968, that is, about two and a half years after the offence was alleged to have been committed. The prosecution closed its case on the 17th April 1968. The High Court then adjourned to the 22nd May, 1968, for the defence to open its case. The defence closed its case on that day, that is 22nd May, 1968. Again, the case was adjourned to the 10th June, 1968 "for addresses." On that day learned Counsel, Mr Osinusi addressed the court at great length. He made what in our view, amounted to sound submissions. He pointed out, what we consider to be, on the evidence before the High Court, fatal contradictions in the case for the prosecution. Mr Delano, learned Counsel for the prosecution replied and the High Court "adjourned sine die" for judgment. The Judgment was in fact delivered on the 4th September, 1969, that is, about 15 months after the close of the case in the High Court and about four (4) years after the offence was alleged to have been committed.

In his Allocutus, Mr Osinusi pleaded in mitigation of sentence. Learned Counsel said:-

"I wish to remind the court this case was concluded June, 1968. The case at the Preliminary Investigation stage started in 1965. This indicates how long the accused has been suffering mental agony..."

This may well have been a good plea in mitigation of sentence, but more important is the delay on the part of the High Court in delivering judgment in this case is the fact that any undue delay in any aspect of the administration of justice nearly always tends to defeat the very ends of justice.

And so, in passing sentence, the trial Court, as it were, replied as follows:-

"I must confess, however, the learned Counsel in his plea touched on certain aspects of the trial from its inception until judgment which sank well with me, and I am inclined to take them into consideration. I regret personally the delay on my part in delivering this judgment."

Now, in a case such as this, where much depended on 'credibility', we think it undesirable that judgment should have been so delayed. 'Impressions tend to get blurred with the passing of time. Words used, coupled with attitudes, gestures, inflexions or modulation of voice employed when such words were used, normally form the basis of 'belief'. This point also would appear to have been in a learned author's mind when he said:-

"The meaning of a (spoken) word does not always correspond with its lexicon equivalent but with its 'attitude equivalent which is the difference which its utterance brings about in a situation."

The 'impression' this made on the mind of the court, tends, by its very nature, to get blurred as time passes. We think it desirable therefore that when a case turns principally upon questions of fact, a court of first instance which has to make those findings of fact, should do so as quickly as possible after the case. Any undue delay in doing so could place that court at a natural disadvantage. Prosecutions, for the same reasons, should not be unduly delayed.

As we said earlier, Mr Osinusi made the submission that "the prosecution has not proved the case against the accused beyond reasonable doubt.

There are material contradictions on the evidence of the prosecution." He gave some examples of the material contradictions. But first what was the complaint upon which the prosecution sought to secure the conviction of the appellant? It was this, and we quote the High Court:-

"The case for the prosecution briefly is as follows: On the 24/11/65, the PW3, Muniratu Orente sent her daughter the PW1 Risikatu Alli to Makun market around 5:30 pm. On her way to the market the PW1 testified, the accused, who stood in front of his house outside, called her and requested her to buy cigarette for him. She agreed and bought two sticks of cigarette for him. She explained that as she stretched her hand to hand over the sticks of cigarette, the accused caught her by the waist and carried her into his room. She explained she struggled in vain to escape but she could not. She raised the alarm and continued to struggle but nobody came to her aid. Continuing further she testified that in the room the accused laid her on his bed, tore her pant and applied his penis into her vagina by force. That she continued to shout in vain all the time and was struggling under the accused without success. She explained that as the accused applied his penis into her vagina her whole body shivered and she felt pain in her vagina. That the dresses she wore were soiled with blood and the bedsheet on the bed of the accused was also soiled. She identified exhibit A, the wrapper, and exhibit B, the pant, as two of the dresses she had on, and which she later surrendered to the PW4, the investigating constable."

Several witnesses were called by the prosecution to establish the complaint. The appellant himself gave evidence and called some witnesses and at the end of the day, the High Court observed in its judgment:-

"The accused set up many defences: they are-

(a) a total denial (b) possible case of a mistaken identity (c) alibi and (d) frame up for the offence because of the enmity between him and the PW3 and that he was being prosecuted for the offence he knew nothing about."

Such was the High Court's understanding of the defences set up by the appellant. We, therefore, find ourselves in complete agreement with the direction of that court on this point:-

"In examining the evidence... it is very important to determine first who had sexual intercourse with the PW1, was it the accused or somebody else?"

However, it was the conclusion reached by the High Court in this regard that the appellant challenged in this appeal. And we think for the reasons we shall later state, that the appellant was right, and that there ought to have been a reasonable doubt, on the answer to the question-"was it the accused or somebody else?"

and the appellant was entitled to the benefit of that doubt. We only need to quote word for word what the complainant, the PW1, said: what her mother, the PW3 said; and what the investigating officer, the PW4 said and it would in our view, be clear that there ought to have been a reasonable doubt in the mind of the trial Judge, in answering the question. The PW1 said:-

"I know the accused on the day of the incident which happened about three years ago."

After relating the incident as stated earlier this witness continued:-

"There was nobody around the house of the accused except the wife of the accused. I did not speak to anybody on the way. On arrival at home I met Muniratu Onimole, my mother at home. I was still crying and shivering, I told her what happened. As I told the court this morning my mother took me to the Police Station to lodge complaint. A constable was detailed to go with us to the house of the accused. The constable, my mother and myself went to the house of the accused. We met him at home. The constable told the accused the complaint against him he denied, the constable entered the room of the accused and removed the blood-stained bedsheet from his bed.

My Mother's name is Muniratu and not Modinatu. We met the accused at home and not on the road when I took Police to his house. He was sleeping then. Only my mother, Police and myself went to the house of the accused no other person went with us. I met my other at home and not on the way. I gave evidence at the lower court. I did not say I met her on the way. I said I met her at home. I did not know the accused before the day of the incident. It was the accused who carried me into his room on the day of the incident. I am quite sure of it. I am not mistaking. The accused did not pull me but carried me by the waist. I did not say the accused pulled my wrist, when I stretched my hand to give him cigarette, I said he carried me by the waist. It was the accused who carried me into his room and inserted his penis into my vagina. Police saw blood stains on his bed when we visited his house.

The mother of the PW1 who gave evidence as the PW3 said in evidence:-

"Before going to the Hospital the PW1 took me and the Constable to the house of the accused. At the house of the accused we met the accused and his wife. The Constable informed the accused he was wanted at the police station. He then followed us. We saw blood on the bedsheet of the accused. The Constable removed the blood-stained bedsheet and took it along to the police station."

Now under cross examination this witness said:-

"The PW1,. when she was making her complaint to me, she said a man yellow in complexion did what she complained of to her. I did not know accused before the date of the incident."

Those were the only two witnesses called by the prosecution apart from the doctor who confirmed that the girl had been 'tampered with'. Then the prosecution called the policeman who investigated the case, Emmanual Odunlami, the PW4, who said:-

"The report was made at 11.20 pm. I later left the police station with the PW1 to invite the accused. On our way I met the accused in company of four other persons including the PW3

The PW1 pointed to the accused among the group as the man who had carnal knowledge of her by force. I then brought the accused to the police station. At the police station I asked the PW1 for her parents. She then pointed to the PW3 as her mother. I later invited the accused to the I.B. Office. I read the allegations of the PW1 to him. He denied... He volunteered a statement in Yoruba. The next day I took the PW1 and accused to Shagamu General Hospital for medical examination. On our return from the Hospital (that is, the next day) I visited the scene of crime... at the scene which was the house of the accused Makum Shagamu I recovered nothing at the scene... My main purpose of going to the house of the accused on the day of the incident was to invite him to the police station. So when I met him on the way I returned with him.... I visited the scene only once. On the only visit I removed the mattress and blanket on the bed to the police station for further investigation. No bedsheet on the bed. The blanket and the mattress were later returned to the accused when nothing incriminating was found on them."

At this stage, we think it ought to be quite clear that these people could not possibly be taken to be speaking about the same person, nor about the same 'scene of crime'. This point became clearer when the accused gave evidence, for he said:-

"Four of us lived in my house at the material time... one was called Yellow Chuku... 'Yellow' is only a nickname for Chuku because he is of very light complexion as I am."

And so many contradictions are apparent in the evidence adduced by the prosecution-Contradictions as to material aspects of the case:-

(a)     according to 1st and PW'3s. they BOTH reported the matter to the police whereas according to PW4 the PW1 reported alone and the PW3 was in fact found in company of the appellant on the road;

(b)     According to 1st and PW3's. the 4th PW the policeman went with them to the house of the appellant "who was sleeping then whereas the PW4 the policeman said he and PW1 met appellant on the road in the company of PW3 and others;

(c)     According to PW1 and PW3 the three of them PW1, PW3 and PW4 visited the scene of the crime, i.e., the house of the appellant the same day the crime was alleged committed whereas, according to PW4 it was visited the next day;

(d)     According to PW1 PW3 on the day of the alleged crime, the PW4 "removed the blood-stained bedsheet from his bed and "police saw blood stain on his bed when we visited his house whereas, the PW4 said, it was the next day that he visited the appellant's house and nothing incriminating was found-no blood stains on his bed, no blood stained bed-sheet was found or removed and in fact, the mattress and blanket were returned to the appellant because "nothing incriminating was found on them"

(e)     In his statement appellant had stated his whereabouts on the day of the alleged crime and even though the PW4 did say in his evidence-"I obtained statements from the people mentioned by the accused in his statement." There was no evidence about these people forthcoming from the prosecution-could it be that these supported the appellant's alibi? Referring to this aspect of the case, the trial Court remarked in the judgment-"In that statement the accused raised a defence of alibi.... Before entering into a discussion on that defence I like to observe that the accused raised it at first opportunity and the police in accordance with accepted procedure checked the alibi by taking statements from the people the accused mentioned in his statement exhibit C.

We are of the view that the trial Court before rejecting the alibi, ought to have taken into consideration the fact that the prosecution adduced no evidence of any sort about the "Check". The appellant "at first opportunity" raised the alibi and so it could not be said to have been an afterthought.