DA’U v. STATE (2020)

DA’U v. STATE

(2020)LCN/14058(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Wednesday, March 18, 2020

CA/K/548A/C/2018

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

YUNUSA DA’U APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE PROSECUTION IS BOUND TO PROVE ALL THE ESSENTIAL INGREDIENTS THAT CONSTITUTES ANY GIVEN OFFENCE

In Criminal Prosecutions in particular, the prosecution is by law, bound to prove all the essential ingredients that constitute any given offence, by a standard of proof beyond reasonable doubt, pursuant to Section 135(1) (2) Evidence Act, 2011. PER HUSSAINI, J.C.A.

INGREDIENTS THAT CONSTITUES THE OFFENCE OF RAPE

Talking about the ingredients that constitute the offence in a charge of rape or unlawful carnal knowledge of a female, without her consent, the prosecution, to succeed, must prove the following, namely:
(a) That the accused had sexual intercourse with the prosecutrix.
(b) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.
(c) That the prosecutrix was not the wife of the accused.
(d) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly, not caring whether the prosecutrix consented or not.
(e) That there was penetration. See Ndemnu Posu & Anor. v. The State (2011) LPELR – 1969 (SC), Isa v. Kano State (2016) LPELR – 40011 (SC); Ezigbo v. State (2012) All FWLR (Pt. 682) 841. Reference is further made to Section 282 (1) of the Penal Code of Jigawa State, on the ingredient that constitute the offence of rape. To succeed in a charge of Criminal Conspiracy under Section 97 of the Penal Code, the prosecution needed to prove that by the conduct of the accused persons, there was an agreement between them to commit an unlawful act or lawful act by unlawful means. PER HUSSAINI. J.C.A.

WHETHER OR NOT EVIDENCE OF CORROBORATION OF EVDENCE OF A VICTIM OF RAPE IS REQUIRED TO CONVICT AN ACCUSED PERSON

It follows therefore that by reason of Section 209(2) of the Evidence Act, her sworn evidence or evidence on affirmation will not require further corroborative evidence implicating the accused before the Courts can rely on same? That is the question.
The Apex Court in Posu v. State (2011) LPELR – 1969 (SC) per Adekeye, JSC held:-
“Evidence of Corroboration of the evidence of the victim in a rape case is not required as a matter of law: It is now a well settled practice by the Courts in Nigeria. The nature of the Corroboration must depend on the peculiar facts of each case, where rape is denied by the accused, the evidence of Corroboration that the Court must look for instance:
(a) Medical evidence showing injury to the private parts of her body which may have been occasioned in a struggle.
(b) Semen stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed.” PER HUSSAINI, J.C.A.

WHETHER OR NOT PENETRATION OF THE PENIS INTO THE VAGINA IS ENOUGH TO COMPLETE THE ACT OF SEXUAL INTERCOURSE

Penetration of the penis into the vagina of the prosecutrix, no matter how slight, is enough to complete the act of sexual intercourse. See R. v. Mersden (1891) 2 Q. B. 149; Iko v. State (2001) 14 NWLR (Pt. 732) 227 – 245.This fact not having been established or corroborated in any material particular, the appeal is bound to succeed. PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Appellant, Yunusa Da’u and one other person by name, Ubale Damuna were both charged, tried, convicted and sentenced accordingly, for the offence of Conspiracy and Rape contrary to Section 97 of the Penal Code, Cap P3 Laws of Jigawa State, 2012 (as amended) and Section 3 of the Penal Code (Miscellaneous Amendment) Law No. 9, 2014, Laws of Jigawa State respectively.

The Appellant and the Co-accused were alleged to have colluded between themselves and had unlawful sexual intercourse with one Amina Ayuba, a girl of Eleven (11) years of age, by use of force on or about the 13th February, 2016 at Tijiyo Fulani settlement, Buji Town, Buji Local Government Area, Jigawa State. The Appellant pleaded not guilty to the charge and the matter proceeded to trial after which the Court below pronounced him guilty and sentenced him accordingly.

The Appellant has appealed to this Court against that Judgment delivered at the High Court of Justice of Jigawa State on the 12th April, 2018. His Notice of Appeal of seven (7) grounds was filed on the 6th August, 2018. See pages 57-68 of the Record of

Appeal transmitted. Briefs of argument were filed and exchanged. The Record of Appeal and the Appellant’s brief of argument were both deemed on the 7th February 2019. Respondent’s brief of argument filed on the 11th January, 2019 was deemed on the 20th January, 2020.

From the seven (7) grounds of appeal, the Appellant, in his brief formulated two (2) issues at page 6 of his brief for determination of Court as follows:
“(1) Whether having regards to the totality of evidence adduced before the Lower Court, the prosecution had discharged the onus of proving its case beyond reasonable doubt against the Appellant as required by law? Distilled from grounds 1, 2, 3 and 6.
(2) Whether from the evidence adduced in defence by the Appellant before the lower Court, the Appellant has established any good defence in his favour? Distilled from grounds 4 and 5”.

No issue was formulated or distilled from ground 7 of the grounds of Appeal hence the same having been abandoned is struck out.

The Respondent on her part identified just one (1) issue at page 4 of the brief thus:
“Whether the prosecution proved its case beyond

reasonable doubt at the lower Court?”

This lone issue formulated for Respondent is similar to issue No. 1 in the Appellant’s brief of argument. Both briefs were adopted at the hearing when the appeal came on the 28th January, 2020 for hearing.

Given the facts and evidence contained in the record of appeal before us, I am inclined to abide by the lone issue identified in the Respondent’s brief of argument as good enough to dispose this appeal.

For the avoidance of doubt, the lone issue is again reproduced hereunder, namely:
“Whether the prosecution proved its case beyond reasonable doubt at the lower Court?”

The Appellant, understandably, answered this poser in the negative vide the submission made on his behalf in his brief of argument at pages 6-13, where it is argued that the charge for Rape and Criminal Conspiracy preferred against the appellant were not proved beyond reasonable doubt so far as evidence was not led to prove the essential ingredients that constitute those offences. We were referred to a number of decided cases including State v. Masiga (2018) 8 NWLR (Pt. 1622) 383, 410;

Lucky v.State (2016) 13 NWLR (Pt. 1528) 128, 169. He urged us to hold that evidence of P.W 1 was hearsay and that hearsay evidence is not admissible evidence to prove any fact. On the evidence of P.W 2, i.e the prosecutrix, it was argued that the said evidence was not corroborated. We were urged to allow this appeal, set aside the Judgment of the trial Court and discharge and acquit the Appellant.

Not unexpected, the Respondent through her counsel has argued that the case against the Appellant had been proved by a standard of proof beyond reasonable doubt. We were referred to the ingredients that constitute the two offences of Rape and Criminal Conspiracy and how by the evidence led through P.W 1 and P.W 2, the prosecution was able to establish those offences. We were urged to affirm the Judgment of the trial Court and dismiss this appeal.

In cases such as this, where allegations of Criminal Conspiracy and rape is made leading to the trial of the person charged, the prosecution is duty bound to prove that allegation, being the person or authority who assert the affirmative. In Criminal Prosecutions in particular, the prosecution is by law, bound to prove all

the essential ingredients that constitute any given offence, by a standard of proof beyond reasonable doubt, pursuant to Section 135(1) (2) Evidence Act, 2011.

the ingredient that constitute the offence of rape.

To succeed in a charge of Criminal Conspiracy under Section 97 of the Penal Code, the prosecution needed to prove that by the conduct of the accused persons, there was an agreement between them to commit an unlawful act or lawful act by unlawful means. The prosecution, in the bid to prove their case called evidence of two (2) witnesses, i.e P.W1 and P.W2. Their evidence can be found at pages 7 – 9 of the record of Appeal.

In his evidence P.W 1 stated that he was not at home at the material time the Appellant and his co-accused arrived his house but his daughter, Amina Ayuba was home. That was about 6 P.M on that fateful day. The accused person, he said, invited his daughter who met them outside the house and they both had carnal knowledge of his daughter. At the promptings of his (PW1’s) mother, he arrived the scene of the incident and took his daughter to the house unconscious, but noticed signs of blood over her private part. He did not meet the accused persons at the scene of crime. They had left the scene before he arrived the scene. Nonetheless he reported the incident to the

village head who in turn reported the matter to the District Head who referred the matter to the Divisional Police Officer (D.P.O), Gantsa Police Division. He further told the Court that the Police recovered clothes of the victim from the Scene of Crime stained with blood. The victim he said, was taken to hospital, examined and stitches were made at her private part.

Giving evidence under cross-examination he said he was at home when the incident took place but not at the scene of crime. It was the younger brother of the victim who narrated to him what and where the incident took place.

Except for the fact that P.W1 took his daughter home in a state of unconsciousness, there is hardly anything coming from this witness which supports the charge(s) upon which the Appellant was arraigned. This is so because himself did not witness the incident of rape take place, he did not partake in the examination and treatment of the victim of the offence(s) at the hospital. The blood stained cloth said to have been recovered from the scene of crime was not tendered in evidence.

Next is the evidence of P.W2, the prosecutrix, by name Amina Ayuba. We should

hear her own version of the story. She has her own to tell. She recognized the Appellant and the co-accused as the persons, who came to their house and invited her. Although she was reluctant to respond to the invitation, her mother prevailed on her and she left and met the Appellant and his friend, the co-accused who stood somewhere outside their house. She had not known them before now. She was about to leave them and go back to the house when one of the accused persons (1st accused) pulled her down and stuffed her mouth with cloth, i.e the veil she covered herself with, inserted his penis into her vagina. The 2nd accused also took his turn and did the same. They both ran away thereafter. She was unconscious and did not know when her father came around to assist her. She was hospitalized and treated.
This witness was already 14 years of age when her evidence was taken at the trial Court on 27th September, 2017. This evidence coming from the prosecutrix in support of the charge(s) for Conspiracy and Rape was not generally controverted under cross-examination. Under normal circumstances uncontradicted evidence can be relied and acted upon by the Courts

as evidence of proof of facts they relate to, in this case, the charge or offence(s) of Criminal Conspiracy and Rape. I say this because the learned counsel for the Appellant in his brief, has argued that the evidence of P.W2 was not corroborated hence the same cannot be relied and acted upon to ground conviction.
I would like to observe on this point that the Penal Code as it relates to Sections 282 – 283 did not make provisions that evidence of a witness in a charge for Rape requires further corroborative evidence as it is the case under the Criminal Code. See the case of Sambo v. State (1993) 6 NWLR (Pt. 300) 399. This lacuna is however taken care of in the Evidence Act, 2011 at Section 200 and Section 209(1) (2) (3). Under Section 209(1) (3) of the Evidence Act, the unsworn evidence of a child under the age of 14 years shall receive corroborative evidence of material particulars before that evidence can be acted upon. My understanding of this, with reference to Section 209(3) of the Evidence Act, is that sworn evidence of a witness or a witness on affirmation, who is above the age of 14 years do not require corroborative evidence before being acted upon by the

Courts.
Although the information contained in the charge sheet indicate that the prosecutrix was only 11 years as at the date the incident took place i.e on or about the 13/2/2016, she was already 14 years of age as at the date her evidence was taken. See page 8 for her evidence in the record of appeal. It follows therefore that by reason of Section 209(2) of the Evidence Act, her sworn evidence or evidence on affirmation will not require further corroborative evidence implicating the accused before the Courts can rely on same? That is the question.
The Apex Court in Posu v. State (2011) LPELR – 1969 (SC) per Adekeye, JSC held:-
“Evidence of Corroboration of the evidence of the victim in a rape case is not required as a matter of law: It is now a well settled practice by the Courts in Nigeria. The nature of the Corroboration must depend on the peculiar facts of each case, where rape is denied by the accused, the evidence of Corroboration that the Court must look for instance:
(a) Medical evidence showing injury to the private parts of her body which may have been occasioned in a struggle.
(b) Semen stains on her clothes or

the clothes of the accused or on the place where the offence is alleged to have been committed.”
Speaking on the same point, Bode Rhodes – Vivour, JSC in the same case held:
“As a rule of prudence and the settled course of practice is for the Court to seek for corroboration in all cases of rape. This is so because it has been found to be unsafe to convict for the offence of rape on the uncorroborated testimony of the prosecutrix.
The Practice in the Courts, where allegations of rape are made in Criminal Prosecutions, is for the Courts to look out for corroborative evidence which materially support the charge”.
“Corroboration” means evidence which confirms the evidence of the prosecutrix.
The practice in the Courts where allegations of rape are made in Criminal Prosecutions, is for the Courts to look out for corroborative evidence which materially support the charge.
I have stated before that the evidence of P.W1 cannot be acted upon as corroborative evidence that can implicate the Appellant, the same not being an eye-witness account of the person who saw the act of rape take place as was the case

in Posu v. State (supra). To that extent, I refuse to countenance the evidence of P.W1. There is the evidence of the recovery of blood stained clothes belonging to the prosecutrix. The blood stained cloth was not tendered in evidence. The prosecutrix was admitted in hospital, examined and treated before discharge, but no Report or Medical Report was tendered in evidence to support that evidence.
In the absence of any independent evidence to establish the fact that Appellant’s penis penetrated the vagina of the prosecutrix, and thus had sexual intercourse with the latter, as a form of corroborative evidence, implicating the appellant, this absence should have dawned on the trial Court below that the case of the Prosecution fell short of the standard required of them, of proof beyond reasonable doubt. It is unsafe to convict in those circumstances. See Posu v. State (supra).
Penetration of the penis into the vagina of the prosecutrix, no matter how slight, is enough to complete the act of sexual intercourse. See R. v. Mersden (1891) 2 Q. B. 149; Iko v. State (2001) 14 NWLR (Pt. 732) 227 – 245.This fact not having been established or

corroborated in any material particular, the appeal is bound to succeed.
The appeal has merit. Same succeeds and it is allowed. The Judgment delivered at the High Court of Jigawa State on the 12th April, 2018 is set aside and the Appellant is discharged and acquitted on the two–count charge framed against him.
That is the Order and Judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, SAIDU TANKO HUSSAINI, JCA where the facts leading to this appeal have been set out and the issues in contention determined. I agree with my learned brother that the prosecution’s case is sadly deficient in the proof required for conviction for the offence in respect of which the Appellant was charged. I also allow this appeal and set aside the judgment of the lower Court.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the privilege of reading the draft of the judgment delivered by my learned brother, SAIDU TANKO HUSSAINI, JCA. I agree with the reasoning and conclusion reached in the judgment.
The appeal is thus allowed. The conviction and sentence is hereby set aside. The appellant is

therefore discharged and acquitted on both counts of the charge.

Appearances:

Aliyu Abdullahi, Esq., with him, Osita James Uche Esq., Ministry of Justice, Jigawa State For Appellant(s)

S. Adamu Esq. For Respondent(s)