3PLR – GOLDEN EMEKA SIWOBI V. COMMISSIONER OF POLICE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS – 3PLR
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GOLDEN EMEKA SIWOBI
V.
COMMISSIONER OF POLICE
COURT OF APPEAL
(JOS DIVISION)
CA/J/65/95
MONDAY, 2ND DECEMBER, 1996
3PLR/1996/48 (CA)
OTHER CITATIONS
1 NWLR PART 482 PG. 411
BEFORE THEIR LORDSHIPS
GEORGE ADESOLA OGUNTADE;
DENNIS ONYEJIFE EDOZIE;
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE.
REPRESENTATION
- Ofodile Okafor – for the appellant
E.D. Daniel – for the respondent
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE: Corroboration
PRACTICE AND PROCEDURE – EVIDENCE: Evidence of a Child
MAIN JUDGEMENT
GEORGE ADESOLA OGUNTADE delivering lead judgement:
The appellant was tried and convicted on a two court charge of burglary and stealing under sections 355 and 288 of the Penal Code respectively by the Senior Magistrates’ Court, Grade II, Jos. On the 1st count of burglary the appellant was sentenced to a fine of N300.00 or 1 year imprisonment in default; and on the 2nd count of stealing to N300.00 or 18 months imprisonment in default. The appellant appealed against his conviction to the High Court. He did not appeal against the sentences. However, on 19/1/95, the High Court in its appellate jurisdiction (Coram; Oyetunde and Ochoga JJ) dismissed appellant’s appeal. In its judgment, the lower court on the 1st count of burglary substituted a sentence of 12 months imprisonment without an option of fine for the sentence imposed by the trial court.
The appellant has brought a further appeal before this court on four grounds of appeal which read:-
GROUNDS OF APPEAL
“(1) The learned Justices of the High Court erred in law when they found and held;
“In our view PW 2 is no more a child of tender year to which section 183 of the Evidence Act may be applied ……………..”
“In our view section 183(1) has no application to PW 2. A child of 12 years is not necessarily applied in all cases. The evidence of PW 2 has the same status as the evidence of those who testified on oath”.
“In our view the evidence of PW 2 needs no corroboration”.
And this occasioned a miscarriage of justice.
Particulars of Error in Law:
(a) Section 183(1) of the Evidence Act did not have any provision for a child of tender years.
(b) The section makes provision for a child. A child is defined by section 2 of the Children and Young person Law Cap. 21 as “any person who has not yet attained the age of 14 years”.
(c) PW 2 was only 12 years when he testified. Therefore section 183(1) of the Evidence Act applied to him.
(d) By the provision of section 183(3) of the Evidence Act the evidence of PW 2 needed corroboration.
(2) The learned Justices of the High Court erred in law in relying on the evidence of PW 2, a child of 12 years when the mandatory provisions of section 183(1) Evidence Act, 1990 were not complied with.
Particulars of Error of Law:
(a) Two tests are required by Section 183(1) Evidence Act. First is as to the required level of understanding and the need to tell truth. Second is to ensure that the witness understands the nature of an oath. This will make it possible to receive his evidence on oath under Section 180 of Evidence Act.
(b) In taking evidence of a child on oath, it is not only necessary for the trial court to state in the record of proceedings its conclusion as to whether the child knows the nature of oath or possesses enough intelligent to give rational answer to question put to him, before receiving the evidence of a child, the trial court must also state in its record how it came to the conclusion.
(c) The legal effect of a trial court’s failure to carry out the preliminary investigation or inquiry envisaged by section 155, 180 and 183 of Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 before taking the evidence of a child or an infant is not a mere irregularity which can be waived but rather a fundamental irregularity which makes the court to disregard evidence so received and regard it as worthless. Therefore no conclusion can be based on it. Sambo v. The State (1993) 6 NWLR (Pt. 300) 399 at 407-419.
(d) These requirements were not complied with and if the evidence of PW 2 is treated as a nullity, the appellant would have been entitled to verdict of acquittal.
(3) The learned trial Judges erred in law in altering the sentence when the prosecution and accused did not appeal against sentence.
(a) Section 279(2) of the Criminal Procedure Code gives statutory right of appeal to the prosecution.
(b) The prosecutor in the instant case did not appeal against the illegality of the sentence.
(c) The learned justices of the High Court affirmed the conviction of the appellant but set aside the sentence imposed by the trial Senior Magistrate.
(d) The trial Judges now imposed a sentence of twelve months imprisonment, it did not in addition impose any fine the vice they set out to correct.
(e) Having set aside the sentence and this include the fine of N300.00 earlier imposed and paid by the accused, the court can no longer rely on the fine.
(f) The Senior Magistrate for two distinct offences of house breaking and theft passed two distinct sentences. The sentences were set aside.
(g) The new sentence of 12 months imprisonment is also contrary to section 353 of the penal code and illegal.
(4) The judgment of the lower is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence”.
In the appellant’s brief filed, the issues for determination were identified as the following:
“(a) Whether section 183(1) of the Evidence Act applied to PW 2, a child of 12 years and if the answers is in affirmative, whether his evidence needs collaboration.
(b) Whether section 183(1) of the Evidence Act was complied with before the affirmation and testimony of PW 2 and if the section was not complied with, what is the effect of non-compliance?
(c) Whether the High Court could alter the sentence when neither the accused nor the prosecutor appealed against sentence.
(d) Whether the conviction and sentence would be allowed to stand having regard to the totality of the evidence before the court”.
The respondent in its brief identified the issues for determination as the following:-
“(a) Whether section 183(1) of the Evidence Act applies to PW 2, a juvenile of 12 years and if the answer is in the affirmative, whether the said section 183(1) was complied with and also whether his testimony required corroboration.
(b) Whether the High Court could alter the sentence of the trial Senior Magistrate when there was no appeal against sentence before it.
(c) Whether the decision of the trial court is unwarranted, unreasonable and cannot be supported having regard to the evidence before it”.
The relevant facts leading to this appeal may be briefly stated thus: The appellant, a young businessman, was on 22/10/90 arraigned before a Senior Magistrate’s Court II, Jos, on First Information Report on an allegation that he broke into the house of PW 1 Chief Celetine Abucha in the night on 25/9/90 and that he stole therefrom a Sharp video cassette recorder, valued at N3,000.00. The recorder was said to belong to PW 1. The appellant denied the allegation.
In proof of the charge, the prosecution called four witnesses. The complainant was PW 1. He testified that on 26/9/90 in the night he was aroused from sleep by one of his children PW 2. PW 2 told PW 1 that while he P.W. 2 was going to the toilet to urinate he encountered someone in the passage. He wanted to greet that person. The strange person threatened to beat PW1. P.W. 1 asked where the man was. Meanwhile the wife of PW 2 put on the light in the parlour. PW 1’s wife then alerted that the video in the parlour had been stolen away. PW 1 observed that the window to the toilet was damaged and the louvers removed. PW 1 looked around the house. He did not see the intruder. He went immediately to the police station to lodge a report. The police asked PW 1 whom he suspected. He told the police he did not suspect anybody. He came back home. He saw his wife and PW 2. PW 1 took PW 2 to the police station to say what he had seen. PW 1 on his second trip to the police then told the police he suspected the appellant. The police eventually arrested the appellant.
The star witness for the prosecution was PW 2. His evidence is in some respects intriguing. At the time he testified for the prosecution, he was a schoolboy of 12 years. He testified that on 25/9/90, he was sleeping in his room. He woke up intending to go and urinate. He saw the appellant. He wanted to greet him. The appellant pressed his finger against his (appellant’s) lips suggesting PW 2 should not talk. This was in the passage and there was light there. The appellant carried something under his armpit. He held a torch with which he attempted to hit PW 2. PW 2 ran away to knock at the door of PW 1. PW 1 came out of his bedroom, PW 2 told him that the person he saw had run into the toilet. PW 1 and PW 2’s sister looked around for the intruder. They did not see him. PW 1 went out of the house. He came back with a policeman. This was about 3 a.m. PW 2 told his auntie the description of the person he had seen. The auntie said it must be the appellant. PW 2 later identified the appellant.
It was the evidence of PW 2 that materially linked the appellant with the offence charged. It was upon it the trial court relied to convict the appellant. The appeal to the lower court revolved substantially on the evidence of PW 2. It is also the central issue in this appeal.
I shall in this judgment take the issues raised by the appellant together. The principal complaint of the appellant’s counsel in the written brief is that the procedure laid down by law which governs the treatment to be accorded to the evidence of a young person was not followed.
Now, it was common ground that when PW 2 testified he was 12 years of age. There is a procedure to be followed when a young person as PW 2 is presented before the court as a witness. Section 155 of the Evidence Act 1990 generally makes all persons competent to testify unless they are incapable of understanding questions put to them; and section 183 deals specifically with the evidence of children. The relevant sections reads:-
“155 (1) All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
(2) A person of unsound mind is not incompetent to testify unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them.
183(1) In any proceeding for any offence the evidence of any child who is tendered as a witness and does not, in the opinion of the court, understand the nature of an oath, may be received, though not given upon oath, if in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.
(2) If the court is of opinion as stated in subsection (1) of this section, the deposition of a child may be taken though not on oath and shall be admissible in evidence in all proceedings where such deposition if made by an adult would be admissible.
(3) A person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution is corroborated by some other material evidence in support thereof implicating the accused.
(4) If any child whose evidence is received as aforesaid willfully gives false evidence in such circumstances that he would if the evidence had been given on oath have been guilty of perjury, he shall be guilty of an offence against section 191 of the Criminal Code and, on conviction, shall be dealt with accordingly”.
The record of proceedings before the trial court reveals that the learned Senior Magistrate had not adverted her mind to the provisions of section 183 of the Evidence Act or comply with them.
The relevant notes of the record of the trial court for 19/1/90 when PW 2 was called to testify read:-
“PW 2 – Juvenile 12 years, male, Christian affirms to tell the truth and states in English as follows:-
My name is Michael Ikeleye. I live at T 3 Laranto Jos. I am a student of S.D.A. Primary School Jos. I know the accused person ……………………”
PW 2 then proceeded to give the rest of his evidence. The lower court never conducted an investigation in the open court as to whether PW 2 was capable of giving rational answers to questions that may be asked of him or whether or not he possessed sufficient intelligence to justify the reception of his evidence in the proceedings.
The provision of section 183(1) reproduced above is similar to that of section 38(1) of the Children and Young Persons Act, 1933 of England. In R. v. Surgenor (1940) 27 Cr. App. Report 175, a little girl of nine years was called as a witness. She was not sworn. The recorder had not made an investigation himself, as he should have done to know if she understood the nature of an oath. A conviction was recorded. On an appeal, the court said:-
“That was wrong and must not occur again. Those who preside over criminal trials must remember that it is the duty of the presiding Judge to make the investigation for himself”.
The conviction was allowed to stand because the girl had testified over an inconsequential matter and the court thought that no miscarriage of justice had resulted from the omission. However, in the earlier case of R. v. Punne (1930) 21 Cr. Appeal Report 176, a girl ages seven was taken out of court and questioned by the Judge before being sworn. On appeal, the court said:
“It goes without saying that what the Judge did was suggested by feelings of kindness and consideration for the youthful witness. The question for this court is, can a conviction stand after an incident of that kind has occurred. It is admittedly an incident without parallel. Admittedly, nobody in this court, either from his own experience or from researches into the authorities, can adduce any parallel case. In the result, something was said to or by this witness which was not in the hearing or presence of the jury or of the accused. The court is clearly of the opinion that, in these circumstances, the appeal must be allowed and conviction quashed”.
The case of R. v. Punne (supra) not only emphasises the importance of an investigation being made as to whether or not a young witness understands the nature of an oath, it underscores the necessity for such an investigation to be conducted in the open court. The Supreme Court in Sambo v. The State (1993) 6 NWLR (Pt. 300) 399 at 422 per Olatawura, J.S.C. said on the same point:
“In this case on appeal, it is not disputed that at the time the offence was committed, the prosecutrix was only ten years old and therefore she was a child. She cannot in law give her consent to sexual intercourse. Consequently, her evidence must be corroborated. The record shows that her evidence was not in conformity with section 182(1) of the Evidence Act as there was willing to show how she was examined. The record merely shows a conclusion of what happened; it ought to have stated how the trial Judge came to the conclusion that she “knows the nature of an oath but does not know the consequences of telling a lie”. While the evidence of a child may be received, the court must be satisfied that the child is of sufficient intelligence and understands the duty of speaking the truth. The section (S. 182) of the Evidence Act appears to me mandatory so as to avoid a miscarriage of justice”.
In Okoye v. State (1972) 12 SC 115 Coker, J.S.C. observed at Pp. 125-126:
“But, although the judge is not bound to hold a preliminary inquiry, he is nonetheless required to form an opinion that the child does not understand the nature of an oath in order to make the section operative. The section has approached the problem in a negative way and obviously says nothing concerning the child produced and tendered as a witness who understands the nature of an oath. The section is aimed at a child who does not understand the nature of an oath and what it then says is that the sworn evidence of such a child may be received despite the provisions of Section 179 if ‘in the opinion of the court”, he has sufficient intelligence to justify his giving such evidence and understands the duty of speaking the truth. As the section does not contemplate a child who understands the nature of an oath, it is difficult to see how section 182 applies to the present case. We think it appropriate to observe however that where a judge thinks that the case of a child-witness should be taken away from the provisions of section 182(1) there should be recorded a note to that effect stating that in his opinion the child is capable of understanding the nature of an oath. A child is a young person in the formative period of life and whilst it is easy to see that a person of the age of 6 or 7 years does not understand the nature of an oath, it is impossible to be categorical on the capability or otherwise of a child of 13 years or more to understand the nature of an oath. A great deal depends on the opinion of the judge who hears and sees the witness. Where the child is incapable of understanding the nature of an oath, the procedure in section 182(1) must be followed so as to justify the necessary departure from the provisions of section 179. On the other hand, where the child is capable of understanding the nature of an oath he must comply with section 179 as is the case in the present proceedings”.
In the instant appeal, the trial court had not ascertained whether or not the PW 2 understood the nature of an oath. Nor did it record anything as to whether PW 2 possessed sufficient knowledge to give rational answers to questions asked of him. The position is Sambo v. State (supra) where the Supreme Court acquitted the appellant was in fact an improvement on the situation I have in this case. In the Sambo case, the trial court observed in its record – “knows the nature of an oath but does not know the consequences of telling a lie”. This in a way shows that at least the trial court in the Sambo case had adverted its mind to the provisions of section 182(1) (now 183(1) since 1990) of the Evidence Act even if it had failed in some manner to comply with it.
Before the lower court, arguments were canvassed by the appellant’s counsel to the effect that the trial Magistrate had failed to comply with Section 183(1) of the Evidence Act. The lower court dismissed the argument by saying at pages 74-75 of the record:
“PW 2 was 12 years of age when he testified in this case. He was a student at .S.D.A Primary School Jos. He was in class 6 in the school. He was in the 4th position in his class in the last examination. The record of proceedings shows he affirmed before he testified. The trial Magistrate had opportunity which we do not have to see PW 2 physically before she allowed PW 2 to give sworn evidence. Section 180 of the Evidence Act 1990 provides that all oral evidence given in proceedings must be given upon oath or affirmation. This kind of evidence is not unsworn evidence. I hold that PW2’s evidence is not unsworn”.
The lower court then referred to the case John Okoye V. State (supra) and reproduced a passage therefrom. (I have myself reproduced the same passage in this judgment.) The lower court went on:
“In Okoye’s case (supra) it was made clear that a great deal depends upon the opinion of a judge who sees and hears a witness in order to decide whether a particular witness falls within Section 183 of the Evidence Act and where the child is incapable of understanding the nature of an oath the procedure in section 183(1) must be followed.
The trial Magistrate treated the evidence of PW 2 just as the evidence of any other witness. From the evidence of PW 2, it is clear that Section 183 of the Evidence Act did not apply to PW 2.
The trial Magistrate therefore justified to give the same treatment to PW 2’s evidence as he did to the evidence of other witnesses in the case. In our view section 183(1) has no application to PW 2. A child of 12 years is not necessarily a child of tender years to whom section 183 must necessarily apply in all cases. The evidence of PW 2 has the same status as the evidence of those who testified on oath. The learned trial magistrate said this witness and she must come to the conclusion that section 183(1) of the Evidence Act ought not to apply to PW 2. In our view her conclusion was well justified. P.W. 2 was in class 6 at a primary school. He took the 4th position in the class and under cross-examination of counsel for the appellant PW 2 said:
“I know what happen to people that tell lies – God will punish them or kill them”.
In our view the court was justified in excluding PW 2 from the operation of section 183 of the Evidence Act, 1990. Section 179(1) of the Evidence Act provides:-
“179(1) except as provided in this section no particular number of witnesses shall in any case be required for the proof of any act”.
In our view the evidence of PW 2 needs no corroboration.”
With due respect to the lower court, it failed to grasp the import of section 183(1) of the Evidence Act in its reasoning as shown in the above passage from the judgment. Section 183(1) is meant to invite the attention of a trial Judge to the necessity to consider whether or not a child of tender years understands the nature of an oath before giving sworn evidence. The plethora of judicial authorities on the point incline to the view that the inquiry must be done in the open court and that the opinion formed after such inquiry must be recorded. Unless a note of the inquiry is made, it will be impossible for anybody reading the record to know that the trial Judge complied with section 183(1). It is speculative to say that because the trial Judge allowed a child of tender years to testify, then he must have satisfied himself that the child understood the nature of the oath. Where a child of tender years testifies, the record of the court itself must bear testimony to the fact that the necessary inquiry was conducted and that the trial Judge formed the opinion that the child-witness understood the nature of an oath.
Even the case of Okoye which the learned Judges of the lower court relied on enjoined the necessity for a trial Judge to make the relevant note on his record. The Supreme Court said continuing from where the passage reproduced by the lower court ended:-
“We think it appropriate to observe however that where a judge thinks that the case of a child-witness should be taken away from the provisions of Section 182(1) there should be recorded a note to that effect stating that in his opinion the child is capable of understanding the nature of an oath”.
It is irrelevant that PW 2 was in primary 6 or that he was in the 4th position in his class. These might well be part of the matters the trial Judge would consider in forming her opinion. The question is – Does her record show that she in fact considered these things? The lower court also referred to answers to questions in the cross-examination of PW 2 to conclude that he must have understood the nature of an oath. But surely, the answers given to questions in cross-examination after PW 2 had concluded her evidence in chief could not substitute for an inquiry which section 183(1) of the Evidence Act expects the trial court to have done before PW 2 was sworn. In any case, where is the evidence that the trial Judge formed the requisite opinion that PW 2 understood the nature of an oath following the answers he gave in cross-examination and which the lower court relied upon.
Finally on the reaction of the lower court to the submissions on section 183(1) of the Evidence Act, it seems to me untenable to conclude that the evidence of PW 2 needed no corroboration when the trial court had not shown by its court notes that PW 2 understood the nature of an oath or does not. The reasoning of the lower court that the trial court treated PW 2 like any other witness seems to encourage the notion that non-observance of the mandatory provision of the law has no consequence whatever. If it was the intention of the law maker that a child-witness should give evidence like any adult whether or not the child-witness understands the nature of an oath, section 183(1) would not have been made a part of the Evidence Act.
The position is that the trial court did not take the case away from the provisions of section 183(1) of the Evidence Act before she took his evidence in court. This was a serious when one bears it in mind that the conviction of the appellant was based solely on the evidence of PW 2.
As the trial court had not conducted the inquiry as directed under section 183(1), it would be speculative considering whether or not PW 2 understood the nature of an oath. Sub-section (3) of the section 183 of the Evidence Act provides that the testimony admitted under the provisions of section 183 must be corroborated before a conviction can be based upon it. The corroborating evidence must be some independent evidence which links the accused with the offence charged. See R. v. Ibe 4 WACA 131. There is no such evidence in this appeal. The house of the appellant was searched and the missing video recorder was not recovered there. No other piece of evidence revealed that the appellant was the one who broke into the house of PW 1 and removed therefrom the video recorder that was the subject of the charge.
When the came before the lower court, that court notwithstanding that there was no appeal against the sentence, suo motu altered the sentence by imposing 12 months imprisonment without the option of a fine. Section 48 of the High Court Law Cap. 49 Laws of Northern Nigeria gives the power to the High Court at the hearing of a criminal appeal to alter the nature of the sentence. The exercise of this power however can only be activated if there is an appeal on sentence. See: Adeleye and Ajibade v. State (1968) All NLR 255.
On the whole, it is my firm view that the conviction of the appellant by the lower court was unsatisfactory. The lower court was also in error to have affirmed the conviction and increased the sentence.
The appellant ought to have been discharged and acquitted. This appeal succeeds. It is allowed. I set aside the judgment of the trial court, which was affirmed by the lower court. The appellant is discharged and acquitted.
{Nigeria Cases referred to}
Adeleye v. State (1968) All NLR 255
Mbele v. State (1990) 4 NWLR (Pt. 145) 484
Okoye v. State (1972) SC 115
Okwuwa V. Queen (1965) NMLR 53
Omisade v. Queen (1964) NSCC 170
- v. Ibe 4 WACA 131
Sambo v. State (1993) 6 NWLR (Pt. 300) 399
