…Citing Lack of Direct Evidence and Inconsistencies in Testimony
The Medical Director of Optimal Cancer Care Foundation, Dr. Olufemi Olaleye, has asked the Court of Appeal to set aside his conviction by the lower court over alleged rape of a minor.
Olaleye, in a notice of appeal filed by his lawyer, Dr. Kemi Pinheiro, SAN, said that the Ikeja Sexual Offenses and Domestic Violence Court was wrong to have relied on the evidence presented by the prosecution against him.
Recall that the court, presided over by Justice Rahman Oshodi in the charge number ID/20289C/2022, sentenced Olaleye to life imprisonment on Oct. 24 for the alleged defilement of his wife’s niece, who claimed to be 16 years old.
However, in the appeal dated and filed on Nov. 24 at the Appeal Court sitting in Lagos State, the appellant, through his lawyer, gave 35 grounds why his appeal should be allowed.
In a copy of the notice of appeal made available to newsmen in Abuja on Wednesday, Pinheiro argued that “the lower court erred in law when, in the absence of any direct evidence, it held that the alleged victim of the crime was a child of 16 at the time of the offence.”
He said that the prosecution did not tender any documentary evidence in support of its case that the alleged victim of the crime was 16 years old.
In proving this fact, the lawyer argued that the prosecution had the onerous duty of presenting the birth certificate of the complainant which would have served as conclusive proof of her age.
But throughout the trial, he said neither the prosecution nor the complainant put forward any documentary proof of the alleged survivor’s age, other than the oral evidence of the witnesses.
The lawyer also argued that contrary to the submission that the alleged victim was consistent in her evidence that Olaleye raped her, her evidence was riddled with inconsistences.
Pinheiro said the alleged survivor never accused the appellant of rape before the police who interviewed her when the alleged events were still very fresh in her mind.
He said it was only four months after the alleged incident occurred that she turned around and alleged that the appellant raped her.
According to him, the court ought to have been suspicious of the time frame between her statements to the police and the Gender Department of the police.
He further argued that the lower court ought not to have relied on the evidence of PW5, Dr Akinbunmi Oyebimpe of MIRABEL, in convicting and sentencing the appellant.
He argued that contrary to Oyebimpe’s finding, the examination carried out on the alleged survivor by PW5 was done months after the alleged offence was committed.
“Even though the offences were alleged to have occurred between 2020 and 2021, the medical certificate issued by PW5 clearly showed that the alleged survivor was being examined in respect of a sexual assault that occurred in March, 2022.
“In the face of this material contradiction, it was wrong of the court to have held that the evidence of PW5 corroborated that of the alleged survivor.
“Since the outcome of PW5’s examination did not indict the appellant, the finding of the court is erroneous and ought not to be sustained,” the lawyer said.
He equally faulted the court to have relied on the testimony of the 1st prosecution witness (PW1), who was Olaleye’s wife and also a complainant, which he said was tainted with malice on the events that occurred in the presence of CSP Patricia Amadi and Aunty Tessy without hearing from these vital witnesses.
According to him, the honourable lower court erred in law when it held that it did not “…believe that Aunty Tessy was a vital witness,” while believing the testimony of PW1 and PW2 (prosecutrix).
He said Aunty Tessy was an independent witness who had received the allegations leveled against PW1 and PW2.
He contended that Olaleye’s wife, Aderemi (PW1), had demonstrated to be holding a grudge against the appellant.
“As a result, the court ought to have been cautious in relying on her evidence which had a high probability of being tainted,” he added.
He also challenged the finding of the trial court on two fronts.
“Firstly, PW1 not being present when the appellant allegedly had sexual intercourse with the alleged survivor could not have corroborated the evidence of the alleged survivor because corroborative evidence ought to come from a person who directly witnessed the events as they occurred.
“Secondly, any corroborative evidence ought to come from an independent source.
“Having demonstrated during trial that PW1 stood to benefit from the appellant’s conviction, it was wrong of the court to have relied on her tainted testimony in finding that her evidence corroborated that of the complainant,” the lawyer argued, among others.
He insisted that Aderemi (PW1) was demonstrably a tainted and interested witness and as such, her evidence was manifestly unreliable.
Pinheiro, who sought four reliefs, urged the appellate court to make an order setting aside the decision of the lower court.
He also sought an order setting aside the conviction of and quashing the sentence against the appellant by the lower court.
The lawyer equally sought an order discharging and acquitting Olaleye of the offences preferred against him.
