By Rukayat Ayinla
Dr Femi Olaleye, A former Clinical Fellow in Obstetrics in the UK and Medical Director of Optimal Cancer Care Foundation, Lagos convicted for defilement and sexual assault on the 24th of October 2023 by the Special Offenses High Court in Lagos has appealed the judgement of the Lower Court, and the appellate court has moved to reserve its judgement having listened to the briefs of the defense counsel and respondent respectively.
Honourable Justice Olukayode Bada
Honourable Justice Mohammad Ibrahim Sirajo, Honourable Justice Folasade Ayodeji Ojo of the appeal court listened to the briefs of arguments of the defense counsel and the respondent on the 24th of September, 2024.
Newsconnect reports that the defense counsel for Femi Olaleye at the appellate court include Kemi Pinheiro SAN, Chukwudi Enebeli SAN, Ikhlas Aderibigbe, Abdul Hamid Modibbo, O.O Akin Owoyemi while O.Aluko the Chief State Counsel for Lagos State – stood for the respondent.
Pinheiro had intimated the court by virtue of the counts of the charge, the age of the victim is extremely relevant.
He declared before the Lord Justices:
“It is our argument and we have canvassed those arguments in our brief that the age was so uncertain that the lower court fell into gross error in upholding that the victim was a child for the purposes of the offense.
“My Lord, your lordships have stated in several cases, avalanche of cases which you have cited that in order to prove the age of a victim, two options are open.
“One is either you bring a birth certificate, or you bring credible evidence of a family member or a parent who was there when the child was born.
“Looking through the entire gamut of proceedings before the lower court, there was no such evidence. In fact, by the time the court came into the conclusion that infact the victim was a child, the court put together the pieces of evidence of five people, it is very interesting who these five people are, all of them with the exception of PW1!
Kemi Pinheiro
‘They all derived their information of the age of the child from PW1. They all said “I was told by PW1”, “I was told by PW1”, who is PW1? PW1 was the boss, the madam. The Child has parents, She has uncles and aunties.The Child was purportedly born in 2004, it is inconceivable that a child born in 2004 not in Sambisa but in Nigeria will not have a birth certificate, will not have a credible evidence of a relative who will confirm this is when the child was born.
“That critical ingredient was so necessary for the court to have satisfied itself and the court failed in coming to a reasonable conclusion.
“The second point which we have also highlighted with all due respect sir is that the court relied on the medical certificate of the examination of the victim.
“In 39 years of practicing, I have never seen a judicial sommersault that I saw in the judgement, let me demonstrate it.
“In page 20 of the judgement which is page 710 of Volume 3, the medical certificate which was so important to show that in fact there was penetration to show there was defilement, this is what the judge said.
“In reviewing the evidence of the medical doctor, she explained that the laceration was not fresh reasonably so because it had been done months after the incident.
“Yes, she confirmed that the medical examination did not indict the defendant, as I the court, have already found in paragraph 26-40”.
“That was the court saying he had found that the medical report did not indict the defendant, that it was irrelevant for the purposes of the count.
“In page 711, the following page in reviewing the evidence of the same medical doctor, page 21 of the judgement, 711 of the records, the same court said ‘I believe the evidence of the first medical doctor, his evidence was not impeached, not even by a dint’
“You have confirmed that the medical certificate did not have any connection, the doctor was giving evidence, off the investigation she carried out, and yet, having held that it didn’t connect, that it is irrelevant for the purpose of the charge before the court, you now proceeded again to say that the evidence was not impeached. And now proceeded to use that piece of evidence to convict the defendant.
“What is even more concerning for me was the purported confessional statement. It is now the law and we have filed an additional authority before your lordship this morning.
“2024 FRN VS Akeeze…The provisions of section 15 & 17 of the ACJ Act are very paramount, which is in relation to video evidence.
“The video evidence of the purported confessional statement, even though admitted by the prosecution to exist, was never tendered before the court. Nothwitstanding that the defendant had unequivocally said “This statement I made, I made it under extreme duress, extreme duress!”
“What is even more confounding and confusing for me is that the trial court when the defense counsel informed the court that the statement was not voluntary and requested for a trial within trial, the trial court compelled the defendant counsel to withdraw the request for trial within trial and yet proceeded to hold, at judgement stage, that the statement was voluntary.
“How the trial court will come to that conclusion, my lord you will find out that it will beat the imagination of any court. What is even worse, is that the trial court now relied on the evidence of PW1.
“PW1 is the boss and the chief complainant; the wife of the defendant. My lord, your lordship has held in avalanche of authorities, that in ascribing probative value, or credibility to a witness, your lordship would observe and determine whether that witness has a purpose to serve.
“A wife of a person who is incarcerated for 6 months, within one week of incarceration, the first four things the wife starts to do …and evidence will show they have serious matrimonial dispute prior to the allegations.
“Evidence will show on records, that the appellant was the first to report that this my wife will kill this girl. The way you are assaulting this your maid is worrisome to me, how that allegation of assault became an allegation of defilement of the same maid, your lordship will then have to consider how the court came to the conclusion.
“What is more worrisome was immediately after the appellant was detained, what did the wife do? Evidence will show it. The wife immediately changed the account numbers, the bank resisted it, the signatories of their joint account. While the husband was in detention, the wife brought document of change of ownership of their home, to the man in detention to come and sign off. While the man was in detention, within one or two weeks, the woman brought document for him to change ownership of the cars and several other things.
“My lord it was apparent no iota of credibility or probativeness should have been ascribed to that PW1 because she had a purpose to serve.
“Undoubtedly, and shockingly, the lower court believed the PW1.
“The video evidence of the battery and assault on PW2, the victim, is before your lordships; the lower court with due respect, did not even make any reference or allusion to the probativeness of that video evidence.
“The totality of what we have urged your lordship on the facts and in our brief, is that if there is one case where injustice has been occasioned to the defendant in a criminal charge, it is this case!
Pinheiro concluded by stating “I urge your lordship to allow the appellant find favour before your lordship and discharge the appellant”.
O. Aluko, the Chief State Counsel for Lagos State Government, the respondent, while responding to the submission of Pinheiro said;
“My Lord, we want to bring to the attention of the court that PW1 was actually the auntie to the survivor in this matter and not the “Madam” has purportedly painted by the appellant.
“She was a family member, during the course of her testimony she mentioned that the survivor was her niece. My Lord, she was in the best position to talk about the age of the survivor who was living with her at all material times that the sexual assault and the defilement was perpetrated on her by the appellant.
“Also in response to the medical evidence, your lordship, it is the respondent’s position that the judgement of the lower court was not reached solely on the medical evidence, and the medical evidence was just to prove a critical ingredient of the offense of penetration, it wasn’t to indict the defendant itself but a corroborative evidence to prove that there was penetration Into the vaginal canal of the survivor.
“The judgement was reached based on the medical evidence as well as other compelling and cogent evidence as produced and as adduced by the respondent at the lower court, we urge your lordship to look at this, as our argument.
“Finally your lordship, on section 9 subsection 3 of the ACJL, that it is our position that it is unconstitutional that the state house of Assembly legislated in a piece of evidence which is an item on the exclusive legislative list. That is solely preserved for the National Assembly. The issue I just mentioned was not considered in Akaeze vs FRN case.
“There is also another Supreme Court’s decision in the case of Benjamin Kalu 2018 15NWLR PART 164138. There are two Supreme Court decisions on this point. My Lord, we urge your lordship to take our argument solely on the peculiarity of this case.
“We want you my Lord to dismiss the appeal, and to uphold the judgement of the lower court. That is our humble submission”. O. Aluko said on behalf of the respondent.
Then the lead appellate Judge asked the State Counsel;
“What do you have to say about the interest of PW1? “
O. Aluko said;
“Your lordship, it was clear during trial that they had matrimonial causes, this was actually brought to the fore by the appellant themselves. Now what we had in court was purely criminal.
“They had matrimonial cause at another court, the PW1 has no intent to serve but to see that justice was done for her niece. My lord, matrimonial causes is purely different from criminal matter. If they wanted to pursue the matrimonial cause in another court, they could have done that but that will not affect the criminal matter of defilement of a child and sexual assault by penetration of a child is not one the state would look away.
“They did not pursue the alleged assault, if they wanted to do that, they could have done that as well but they chose to be silent on that. My Lord, the interest of PW1 was solely to see that justice was done to her niece, my Lord. That is our position” she said in conclusion.
Pinheiro sought the approval of the Court and posited afterward;
“Two statements, before your lordships. My learned friend’s submission that the PW1 had no purpose to serve is clearly preposterous, and in saying we did not pursue the assault.
“The victim is supposed to be the complainant, the Police did not do anything, because they felt they had a bigger allegation to investigate.
“We contested in trial that the allegation of defilement was a deflection from the allegation of assault and battery.
“The other point, the medical report, was not made instantaneously after the allegation was made, it was made 4 months after the purported allegation was made.
“What is even more critical about the evidence of the prosecution is that evidence was led that this same lady, because we do not agree the lady was a child, this same lady had some form of relationship with the security man, called Meschack. The IPO confirmed that they took the statement of the security man, the statement was suppressed, was not produced before the court.
“So assuming but not conceding that the medical report confirmed there was penetration, penetration by who?
“It is the duty of the prosecution to negatize all reasonable doubts, failure to have tendered the statement of the security man or the video recordings of the evidence of Meschack will resolve the doubt in favour of the defendants
“There was evidence that the appellant had warned his wife that I don’t like this girl’s relationship with Meschack.
“The first allegation of defilement was to one Aunty Tessy. But Aunty Tessy was never called as a witness.
“My Lord, I say this with profound respect with all my 39 years and 19 as a senior advocate, if there was a prosecution that was bungled based on an incompetent investigation, it is this case.
“I urge your lordship to uphold that point”. He concluded.
On a lighter note, Pinheiro established that;
In African culture everybody is your cousin, everybody is your niece. There is no evidence in the how the lady became the niece, no evidence was adduced.
“I am sure my learned friend may also be Aunty too to the victim under African tradition”.
The judge having listened to the appelant counsel and respondent said;
“We shall read what both of you filed.
After a few seconds of deliberation between the panel of Justices of the Appeal Court, the lead appellate Judge said in closing;
“Court! Judgement in this appeal is reserved