ADONIKE v. THE STATE

 

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal sitting in Benin delivered on 15th March, 2013 wherein the Lower Court affirmed the judgment of the High Court of Delta State which convicted and sentenced the appellant to six years imprisonment with six strokes of the cane for the offence of defilement.
As I can garner from the record of appeal, the facts reveal that on or about the 16th day of June, 2010, the appellant invited and requested a child of 5 years of age to buy pure (sachet) water for him. On her return, the appellant lured her into his room, pulled her pant and had carnal knowledge of her. The appellant was arrested and charged to court for prosecution. The charge read as follows:-
“STATEMENT OF OFFENCE:
COUNT 1:
Defilement punishable under Section 218 of the Criminal Code Cap. 48 Volume II, Laws of the Defunct Bendel State 1976 as applicable in Delta State.

PARTICULARS OF OFFENCE
Boniface Adonike (m) on or about the 16th day of June, 2010 in Issele-Uku Mkpitune Village within the Issele-Uku Judicial Division had carnal knowledge of one Iwebunor Gabriel (f) aged 5 years without her consent.”
At the trial High Court, the appellant denied the charge and pleaded not guilty to same. The prosecution called four witnesses. The appellant testified for himself and called no witness. Counsel for both the prosecution and defence addressed the court. At the end the learned trial judge convicted the appellant and sentenced him to 6 (six) years imprisonment and with 6 (six) strokes of the cane.
Not satisfied with the judgment handed down by the learned trial judge, the appellant appealed to the Court of Appeal, Benin Division. Without much ado, the appellant’s appeal at the Lower Court was dismissed. Still dissatisfied the appellant has appealed to this court.
Two notices of appeal were filed by the appellant on 20th March, 2013 and 3rd April, 2013 respectively. At the hearing of this appeal, the appellant abandoned the notice of appeal filed on 20th March, 2013 and adopted the one filed on 3rd April, 2013. The said notice has five grounds of appeal, out of which the appellant’s learned counsel, Ekeme Ohwovoriole Esq has distilled three issues for the determination of this appeal. The three issues are as follows:-
1. Whether the appellant’s trial and conviction for the offence of defilement, under section 218 of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State 1976, as applicable to Delta State, which the respondent began more than two months after the offence was committed, is not a nullity.
2. Whether the Lower Court did not wrongly affirm the trial court’s admission of Exhibit B, said to be the appellant’s extra-judicial statement and if the answer is affirmative, whether the trial court relied on the document to convict the appellant.
3. Whether the respondent proved the offence of defilement against the appellant beyond reasonable doubt.
In the respondent’s brief settled by O. F. Enenmo Esq., two issues are formulated as hereunder reproduced.
1. Whether having regard to the state of evidence before the court, the Court of Appeal was right in law when it affirmed the judgment of the trial court,
2. Whether the Lower Court erred in law when it affirmed the conviction of the appellant based on section 218 Criminal Code Law Cap. C.21 Law of Delta State.
I intend to determine this appeal based on the three issues formulated by the appellant, after all it is his appeal.
Arguing the first issue, the learned counsel for the appellant submitted that the appellant’s trial for the offence of defilement under Section 218 of the Criminal Code Cap. 48 Vol. II Laws of the Defunct Bendel State 1976 as applicable in Delta State was a nullity because the trial court lacked jurisdiction to entertain the charge which the prosecution began outside the period of two months prescribed for the respondent to begin the prosecution for the offence.
It is his contention that from the findings of fact by the court below that the trial of the appellant was commenced more than two months against as stipulated by Section 218 of the Criminal Code Laws of Bendel State 1976 as applicable in Delta State, the Lower Court ought to have allowed the appeal. Learned counsel faulted the reliance by the Lower Court on the case of Yabugbe Vs COP (1992) 4 NWLR (Pt.234) 152. According to him, the facts of the instant case are distinguishable from the facts in Yabugbe’s case and that the Lower Court was wrong the way it applied the principle in Yabugbe’s case (supra).
Learned counsel opined that a careful reading of Yabugbe’s case shows that the mere existence of another law under which the accused could have been charged is not enough to bestow legality on the trial. That in addition to the existence of another law, it must be shown that the accused and his counsel are not misled and no objection is raised to the defective charge and that there has been no miscarriage of justice. That in this case, the appellant raised an objection and an attempt to amend the charge was refused by the court saying that it would occasion injustice on the appellant.
It was a further argument of the appellant that following the trial court’s dismissal of the respondent’s application to amend the charge, the prosecution continued under the provisions of the Criminal Code of the Defunct Bendel State up to and including when the trial court delivered its judgment in the matter. Learned counsel submitted that beyond taking judicial notice of the laws of Delta State only at the ultimate stage of delivering judgment, the learned trial judge did not do anything with or show how those laws impacted on the charge that the respondent was prosecuting against the appellant. That merely stating that judicial notice was taken of the laws of Delta State, without demonstrating its effect, if any, on the trial, was not enough to validate the trial.
In conclusion, learned counsel opined that the issue in this appeal goes beyond the appellant merely understanding the charge and pleading thereto. That the pith of the issue lies in the fact that it was legally impossible to convict the appellant under the provisions of Section 218 of the Criminal Code of the Defunct Bendel State. It is his submission that however well the proceedings are conducted or not is a matter entirely extrinsic to the question of defect in competence of the court, citing the case of Karim V. N. A. (2001) 4 NWLR (Pt.758) 716 at 729 para H; Madukolu V. Nkemdilim (1962) 2 SCNLR 341. He urged that it be held that the trial court’s holding that the appellant understood the charge and pleaded “not guilty” cannot and did not breathe life into the offence that became moribund after the expiration of a period of two months from the 16th day of June, 2010 when the offence was said to have been committed.