HOW APPELLATE COURT SAVED LAGOS DOCTOR FROM ETERNAL INCARCERATION ……Court Describes Judgement As Fraught With Errors

This is an appeal based on the Judgment of a Lagos state high court, in Ikeja judicial division, with charge number ID/20289c/20223 between the State of Lagos and Dr. Olufemi Olaleye, delivered on 24/10/2023.

The trial court convicted the appellant and sentenced him to life imprisonment on each of the two-count charges. The Sentences were to run concurrently.

Briefly, the fact of the case is predicated on the appellant’s (Dr. Olaleye) appeal. Dr. Olaleye is a trained and practicing medical Doctor who is charged with a two-count charge of defilement and sexual assault by penetration contrary to sections 137 and 261 respectively of the criminal law Chapter 17, Volume 3, laws of Lagos 2015.

Dissatisfied with the trial court judgment, the appellant appealed to the Lagos division of the court of appeal. The findings of the court of appeal, Lagos which unanimously absolved the appellant’s of the offences pressed against him, also x-rayed the failure of the prosecution in prosecuting the case according to the law as well as condemning the decisions of the trial court in reaching it’s final decisions, getting the appellant convicted .The learned senior counsel for the appellant formulated five issues for the determination of the appeal, which could be summarized as :

1. Failure of the court to conduct an inquiry to determine the correct age of the prosecutrix, in the light of lack of credible evidence should stand

2. Whether the court was right to admit the confessional statement of the appellant in exhibit H and H2.

3. Whether the lower court in the absence of any positive evidence was right to accept exhibit H1 as a conversation between the appellant (Dr Olaleye) and his wife (PW1).

4. Whether in the absent of any cogent, credible, and reliable evidence the court was right in convicting the appellant.

5. Whether the lower court did not exhibit any bias and deny the appellant his right to a fair hearing.

Having carefully studied the issues formulated for the determination of this appeal by counsels for both parties, the court of appeal came to a comprehensive and encapsulated decision that the issues raised by counsel to the appellant also cover the two raised by the respondent.

The court first of all considered the credibility of the evidence given in light of the age of the prosecutrix as of the time the sexual intercourse took place. Given the contradictions in the evidence, the court wondered how in the face of such an unconvincing story of the girl’s age the lower court failed to conduct any form of inquiry to ascertain the true age given the fact that none of the six witnesses who testified and gave her age were present at of the time of her birth.

The court accepted the argument canvassed by the learned senior counsel for the appellant, who contended that ‘’the Standard of proof in a criminal proceeding is one of proof beyond a reasonable doubt without any of the ingredient of the offense missing,” which according to the appellant’s counsel was missing completely in the case before the trial court.

The court cited the case of Darlington vs FRN(2018)11NWLR Part 1629, Page 152 at 169 and others in support of this position.

The court held that the trial court was wrong and erred in law to have wholly accepted the evidence of the prosecution witnesses per PW1, PW2, PW4, PW5, and PW6 since it was laced and frough with so many contradictions and as such lacked the standard of evidence to be accepted in a criminal trial of that nature.

In resolving this issue, the court stated that “proof beyond a reasonable doubt simply means that there is sufficient admissible and credible evidence that all essential ingredients constituting the offense an accused was charged with were established to justify the conviction of the accused person by the trial court” and such seem to be lacking.

Section 416 of the Lagos State Criminal Law and Child Rights Act of Lagos state was taken into account and the provision that anybody above the age of 18 years old is no longer a child. Given the fact that the true and correct age of the girl involved in this act could not be determined the appeal court again agreed with the learned counsel for the appellant that the prosecution failed to prove beyond any doubt that the girl was still a child, insisting that an inquiry or a trial within trial would have gone a long way to solving the issue of correctly determining the correct age of the girl.

Exhibits H, H1, and H2, are part of the exhibits that were presented in trial court in support of the prosecution case. They are as follows:-

Exhibit ‘H’ is the appellant’s extrajudicial statements made at the Anthony Police Station dated 29/11/202, Exhibit ‘H1’, is the printout of e-mails and WhatsApps messages between the appellant and PW1, while

Exhibit ‘H2’, are of handwritten and typed letters of understanding dated 3/12/2021 and 5/12/2021.

Exhibit ‘H’, contains statements made by the appellant at the Anthony police stations about the subject matter. What casts doubt on this statement is the fact that he (Dr.Olaleye) stated in his cross-examination answer under oath that ‘’….I made this statement after 6 days in police custody and it was under extreme duress…’’

Again the panel of Justices at the court questioned the rationale behind the trial court’s refusal to conduct an inquiry or trial within a trial on such an important exhibit that is somehow going to determine the case. It saw no reason behind the acceptance of exhibit ‘H’, after the trial court had pressurized the appellant’s counsel to withdraw the request for a trial within a trial (see volume 1, pages 262 to 263 of the records of appeal.)

The court held the appellant’s statement was obtained under force. The fact that the author was under duress while writing and such fact was stated in evidence, cast a lot of doubt on the particular exhibit and such doubt should have been cleared before it was accepted by the trial court.

Exhibit ‘H1’, is the printout of e-mails and Whatsapps messages between the appellant and PW1(his wife) , again the appellant stated that he did not willingly hand over his phone to his wife or the police for the evidence contained in exhibit ‘H1’ to be extracted, rather the appellant forgot his phone at home as he rushed to keep the police appointment, his wife found it and then extracted the information that were contained in the exhibit.

The appellate court found out that the credibility of exhibit ‘H1’ became highly questioned after the court was able to prove that the estranged wife of the appellant had a purpose to serve and stood to benefit from the incarceration.

The appellate court noted and stated that PW1 is a lady who during the ongoing trial of her husband, Dr could be scheming and plotting to take over the husband’s assets, properties, custody of children, and monies in the bank in a calculated manner is not one whom the court should have dignified with any credibility to rely on her evidence to convict and this cast doubt on exhibit ‘H1’, it was held.

While Exhibit ‘H2’, are handwritten and typed letters of understanding dated 3/12/2021 and 5/12/2021. Based on available evidence, this exhibit was written by the lawyer and dictated to Dr.Olaleye for him to write.

‘’This was ………. Dictated to me, this undertaken was dictated while……..in detention. I need time to get out …….. While I was there for 6 days’’.

The appeal court observed that despite the above evidence, the trial court admitted exhibit ‘H2’ and utilized the same against the appellant even when on the contrary, evidence was adduced by the prosecution that it was not written voluntarily. This fact was further collaborated by PW1 (His Wife) under oath in page 31 of the record of appeal volume 1 that the undertaken which stands as exhibit H2 was not written by the appellant. She said, the lawyer wrote the undertaken and had him signed it.

In furtherance to it’s Judgement discharging all the offences leveled against the Appellant, (Dr. Olaleye) the Panel of the Appeal Court held that the case at the trial court lacks any ground to stand upon.

It held (i) The court of appeal held that the evidence of PW1, (estranged wife of appellant) was tainted with lies and vagueness. (ii) The evidence of the medical Doctor, (PW5), on allegations of sexual assault by the Appellant (Dr.Olaleye) against PW2, (the victim) was unfounded. (iii) That the trial Court descedended into arena of justice:

In it’s view the panel of the Justices of the Appeal Court described the PW1, the estranged wife of the Appellant as someone who “had a purpose to serve and stood to benefit from Appellant’s incarceration.”

The appeal court referred to the cases of UDO VS. ESHIET (1994) 8 NWLR PART 363, PAGE 483 AT 501 as per TOBI JCA as he then was.

See also MOSES VS. THE STATE (2006) LPELR PART 1915 PAGE 1., ITU VS. THE STATE (2016) LPELR-26063 PAGE 1.

The appeal court held,: “The trial Court ought to have considered the facts in evidence in ascribing credibility and probative value to PW1. PW1 i.e., the estranged wife of the Appellant had a purpose to serve and stood to benefit from Appellant’s incarceration. A lady who during the ongoing trial of her husband could be scheming and plotting to take over the husband’s assets, properties, custody of the children and monies in the bank in a calculated manner is not one whom the Court should have dignified with any credibility to rely on her evidence to convict.”

“She was a witness with a purpose and objective other than assisting the Court. See also the case of MBENU VS. STATE (1988) 3 NWLR PART 84 PAGE 615.

“The evidence of a tainted witness should be treated with considerable caution, and be examined with a tooth comb. Trial Court should be wary in convicting on the evidence of tainted witness.” It held.

On the evidence of the medical officer, PW5, the Court stated that allegations of sexual assault by Appellant against PW2, (the victim) “allegation against the Appellant was unfounded.”

The presiding Justice of the appeal court said, “It is my view that the PWS having interviewed PW2 and examined her on the premise of a recent incident of 15/3/2022 (as against November 2021) the conclusion reached by PW5 (medical doctor ) as it relates to allegation against the Appellant was unfounded.”

“This is because PW2 had admitted on page 67 of the Record of Appeal Volume 1 that she had stopped living with the Olaleye’s since November 2021. The implication of this is that there was no competent and credible medical evidence to support the allegation leveled against the Appellant.”

“In the case of POPOOLA VS. STATE (2013) 17 NWLR PART 1382 PAGE 96 AT 117 the Court held that ‘a medical report is mandatory once an accused person denies offence.’

The court was firmed in it’s judgement that for the fact that the prosecution (Respondent) presented a medical report, “the said report is worthless piece of paper in so far as it had no nexus with the allegation leveled against the Appellant.”

“The trial Court was therefore wrong to have relied on the testimony of PW5 in holding on page 711 of the Records Volume 3 that her testimony was not impeached.

“This is the type of situation that occurs when instead of prosecuting an accused person, you are persecuting him. The testimony of PW5 has been impeached and her testimony is worthless.”

On the fact that trial Court Decedended into arena of justice: the Justices described the trial court to have “descended into the arena contrary to the warnings of this Court in SUBERU VS. THE STATE (2010) 8 NWLR PART 1197 PAGE 586 that-

“A Judge should not descend into the arena.

“A Court has no duty to bridge the yawning gap in the case of a party. This is more so since this is a criminal matter”.

“The fact that the trial Court called parties to address it subsequently does not help matters as it is apparent that the trial Court had already taken a position after hinting Prosecution Counsel on the line of argument to proffer.”

“In this appeal under consideration, it is appropriate under this issue to draw attention to the proceedings on pages 228 to 278 of the Record of Appeal Volume 1 where the Appellant was being cross-examined and the Respondent sought to tender the purported confessional statement. Counsel for the Appellant requested for a trial within trial. The Respondent’s Counsel responded, and the Appellant’s Counsel was at the verge of concluding his reply when the trial Court on page 260 of the Record Volume 1 stated:-

“the critical question …. is this document sought to be tendered for the purpose only to impeach the credibility of the witness, which point SECTION 232 OF THE EVIDENCE ACT will apply. outside Both parties are taking me SECTION 232 ……. which allows a person to be cross-examined by previous statement made by the person”.

The Appellate Court concluded that: “With the proceedings set out above, I am of the view that the trial Court descended into the arena contrary to the warnings of this Court.”

See the case of : DENGE VS. NDAKWOJI (1992) 1 NWLR PART 216

PAGE 221 AT 233 AT 234 this Court had stated that bias will arise.

“if a Judge either explicitly or by implicitly indicates partisanship in a cause or matter By expressing hostile opinion favourable to one party or has unduly earlier expressed his views about the merits or demerits of a case committed to him ……..”.

“The question, that comes to mind at this juncture is – What will an innocent bystander make of such conduct? The innocent bystander will conclude that the trial Court had taken sides with the Prosecution by making a case for it.

The Appeal Court referred to the case of ELIKE VS. NWANKWOALA (SUPRA) AT PAGE 809 where OPUTA JSC also held that – “fair hearing does not enable trial Judge to take over the conduct of any case. That itself will amount to interference with fair hearing”.

The appeal court concluded that, “In this appeal my inevitable conclusion is that the trial Court in one way or the other interfered with the proceedings to bridge the yarning gaps in the Prosecution’s case.

“Consequent upon the foregoing, Issue Numbers 3, 4 and 5 are resolved in favour of the Appellant and against the Respondent.

“In the result with the resolution of Issue Numbers 1, 2, 3, 4 and 5 in favour of the Appellant and against the Respondent, this Appeal has merit and it is allowed.”

Having examined the legal points raised and canvassed by parties before the appeal court, the court in a unanimous decision of the three Justices, concluded that the five (5) issues raised by the appellant at the commencement of the appeal are resolved in favour of the appellant and against the respondent. The appellate court held that the appeal has merit and it is allowed.

The three-man panel of the Court of Appeal held that Dr Olufemi Olaleye’s “life imprisonment is hereby set aside, he is hereby discharged and acquitted.”