Why Appeal Court Nullified Lagos Doctor Olaleye’s Rape Conviction

BY MICHAEL AKINOLA

The Appeal Court sitting in Lagos has nullified the rape conviction of Dr. Femi Olaleye, managing director of Optimal Cancer Care Foundation.

The three man panel has Hon. Justice Jimi Olukayode Bada delivered the lead Judgment.

Hon. Justice Mohammed Abubakar discharged and acquitted Dr. Olaleye, while delivering judgment in an appeal filed by the accused Doctor against the judgment of Lagos State Sexual Offences and Domestic Violence Court which convicted and sentenced him on the allegations.

Justice Rahman Oshodi, had in October 2023, sentenced Dr Olaleye, to life imprisonment for defiling his wife’s 16-year-old niece.

Justice Oshodi in his judgment, held that the prosecution, the Lagos State Government had proved the charge against the defendant and the evidence against him was compelling.

The judge held Olaleye’s confessional statement before his former counsel, Mr Olalekan Buruji, and the Divisional Police Officer at the Anthony Police Station, Lagos State, proved that he committed the offences.

Dissatisfied with the judgment, Dr Olaleye’s counsel Dr. Kemi Pinheiro SAN appeal the decision of the lower court.

At the hearing of the appeal on September 24, 2024, the appellant through his counsel Dr. Pinheiro SAN leading Chukwudi Enebeli argued that the lower court erred when in the absence of any direct evidence, it held that the alleged victim of the crime was a child of 16 years at the time of the offence, adding that there was no direct evidence from anyone who witnessed the birth of the alleged victim of the crime.

Delivering judgment in the appeal today, the three Justices held that: “Prosecution case was bereft of any credible evidence that she was a child. Credible and reasonable doubt created in the prosecution’s case in relation to the age. It is on record that the trial court came to conclusion on age based on the evidence of the witnesses even though none gave evidence of experiencing PW2 birth.

Since none of the witnesses gave evidence on birth… the trial court was wrong to rely on their evidence that she was a child.

The trial court ought not to have relied on the evidence of even. Evidence of all witnesses on age was hearsay.

“Age was critical and 16 years was a boarder line age which the court could not determine by just seeing the witness. The Court is just using our brief and entire arguments.

“To make matters worse, the trial Court went to rely on the said statement even though it acknowledged that the Appellant said it was written under duress. The issue of voluntariliness was raised in respect of his statements…since H1 and H2 were not voluntary…the lower court ought to have ordered a trial within trial. Failure of the Trial Court to conduct inquiry leaves the age in doubt and is resolved in favour of the Appellant

“There is no doubt that the wife had access to his device. This creates a reasonable doubt in the case of the prosecution. Issue 2 resolved against the Respondent

“The panel further held that: “the prosecution could not puncture the case of the Appellant that his phone was with his wife as she had admitted. There is a possibility and real likelihood that the email was contrived at the time that PW1 had access to the Appellants phone. This doubt is not out of place. The failure to conduct the trial-within-trial is fatal to the prosecution case and has rendered the exhibits useless.

“The fact that the email had Appellant email address doesn’t on its own establish the Appellant authored those mails because PW1 had access to his phone. The prosecution did not puncture this evidence. The Appellants phone number on the whatsapp chat…it had hubby olaleye….in the absence of the Appellants number on the chat…this had created reasonable doubt. The whatsapp conversation may not have been from the Appellant.

“Trial court was wrong to have disbelieved the Appellant when no contrary evidence was adduced. The decision of the trial court is perverse… The trial court relied on H1 and still said it was inconsistent with the evidence of the prosecution. The decision of the trial court was wrong.

“The conduct of Pw1 shows she was motivated by greed and her desire to take over the Appellants access while he is in custody. She was therefore a tainted witness. PW2 cannot corroborate the evidence of PW1 because her evidence itself needs corroboration…PW1 testimony was illogical and an affront to reasoning…A woman who said we were all asleep gave evidence on all that happened when they were asleep.. Decision of lower court is hereby set aside.

“With the resolution of all issues in favour of the Appellant, the appeal is allowed and meritorious and the Appellant is hereby discharged and acquitted “