The Queen Vs John Ekelagu (1960)

LawGlobal-Hub Lead Judgement Report

TAYLOR F.J

The appellant was convicted of the offence of defilement of a girl under the age of 11 years contrary to s.218 of the Criminal Code at the trial in the High Court of the Port Harcourt Judicial Division.

The appellant, who did not have the assistance of Counsel filed a Notice of application for leave to appeal against sentence on the 13th July, 1960. A perusal of the grounds of appeal contained in this application makes it abundantly clear that what the appellant in fact intended to do was to apply for leave to appeal against his conviction and the sentence passed upon him. When the appeal came before us on the 4th November, 1960, we felt that in the interests of justice the error into which the appellant fell by filling up Criminal Form 3 instead of Criminal Form 1 should not be a bar to the full presentation of the appeal in view of the fact that the appellant was unrepresented by Counsel and further that the appeal contained substance for argument. We therefore gave the appellant leave to appeal against his conviction and sentence and adjourned the hearing of the appeal to the 7th November, 1960, ordering that Counsel be assigned to the appellant.

On the 7th November, 1960, Mr. Cole appeared for the appellant and having obtained leave to argue the four additional grounds filed by him, abandoned grounds 1,2,4 and 5 of the original grounds of appeal, seeking only to argue ground 3 of these grounds.

Owing to the view we hold of the merit in ground 2 of the additional grounds of appeal argued by Learned Counsel for the appellant, no useful purpose will be served by dealing with the other grounds of appeal. This ground reads thus;-

The Learned Trial Judge failed to direct himself that there was no corroboration of the evidence of the 2nd and 4th prosecution witnesses regarding their testimony that the appellant had sexual intercourse with each of them.

The facts relevant to this ground of appeal put shortly are that the 2nd prosecution witness, a girl whose age was put at 9 1/2 by the medical expert, and the 4th prosecution witness, whose age does not appear on the record, but who, together with the 2nd prosecution witness, were referred to in the record as little girls, were hawking bananas at Mile 1 Diobu, Port Harcourt. The appellant bought 1d worth of bananas from the 2nd prosecution witness on the afternoon of the day in question. According to the evidence of the two girls, which he denies, as they had no change, he asked them to come back in the evening, which they did, and on their entering his room he placed a plank against the door and proceeded to have sexual intercourse with both of them, first with the 4th prosecution witness and then with the 2nd prosecution witness.

The section of the Criminal Code under which the appellant was charged provides that a person so charged shall not be convicted of such an offence on the uncorroborated testimony of one witness, but in addition to the statutory reed for corroboration the Court must bear in mind the risk involved in acting on the evidence of young boys and girls in matters of this kind unless it is corroborated by an adult. The evidence of the 4th prosecution witness satisfied the statute in this case, but there was still a risk in accepting the evidence of the 2nd prosecution witness corroborated only by the 4th prosecution witness. On this point the judgment of the Court of Criminal Appeal in the case of Regina v. Forbes McArthur Campbell reported in 40 Crim. App. R. page 95 is pertinent, and particularly the passage beginning at page 102, which reads as follows;-

“The sworn evidence of a child need not, as a matter of law, be corroborated, but a jury should be warned, not that they must find corroboration, but that there is a risk in acting on the uncorroborated evidence of young boys or girls, though they may do so ff convinced the witness is telling the truth, and this warning should also be given where a young boy or girl is called to corroborate the evidence either of another child, sworn or unsworn, or of an adult.”

The only passage in the judgment of the learned Trial Judge dealing with this point of corroboration reads thus:-

“The admission of the accused that he saw the two girls and bought banana from them on the day in question corroborates part of the story of the two girls.”

From this passage it is not altogether clear that the Learned Trial Judge directed his mind to the statutory need for corroboration of the evidence of the 2nd prosecution witness and further to the desirability of corroboration of the evidence of the other little girl, the 4th prosecution witness. Further, he would seem to have gone astray on the issue of the nature of the corroboration required. A reading of the passage to which reference has just been made gives the impression that the Learned Trial Judge was of the view that corroboration of any part of the story of the 2nd prosecution witness was all that was required. In this respect the judgment of Lord Chief Justice Reading in the case of Rex v. Moris Goldstein reported in 11 Crim. App. R. 27 reading from page 29 is relevant:-

It is admitted that there was no corroboration of any material particular implicating the accused, but there were other matters on which the girl gave evidence on which there was corroboration. One of these matters amounted to the commission of a crime by the appellant if the jury accepted her evidence, but not of the crime with which he was charged; it is suggested that that was sufficient corroboration to satisfy the statute. The proposition has only to be stated to be refuted. It is clear that it is intended that the corroborative evidence should implicate the accused in respect of the offence charged; when that fails i[ is wholly immaterial that there is corroboration of other portions of her evidence.

The admission by the appellant that he saw the two girls and bought banana from them in the afternoon cannot by any stretch of the imagination be said to be a material fact implicating the accused and tending to confirm his guilt in the commission of the offence of defilement which, be it noted, is alleged to have taken place not at the time of the purchase of the banana but on the return of the two girls at some later period of the day.

This appeal must in our view be allowed, but before doing so we feel that attention should be drawn to another unsatisfactory aspect of this trial. In the cross-examination of the medical expert, prosecution witness 1, and in answer to a question by the appellant as to how many persons were brought to the Hospital as having committed this offence, he gave this answer:-

“Three of you in respect of the same girl.”

In spite of this answer, which required further enquiries being made, If necessary by the Court, we find nothing further asked of the witness or the constable who conducted the enquiry,on this point. As we have said before, the appellant was not represented by Counsel, and we feel that some assistance from the Court on this point which goes to identity would not have been out of place. In the case of Rex v. Gbadamosi and Others, 16 W.A.C.A. 84 at page 89 the West African Court of Appeal stated that:-

“In criminal trials in the High Court in this country it is one of the recognised functions of the Judge to assist an accused person, who is not represented by Counsel, in putting his defence before the Court.”

For the reasons above given this appeal is allowed and the conviction and sentence are quashed.

Appeal allowed.

Other Citation: (1960) LCN/0849(SC)