ASORTAR v. STATE
(2020)LCN/14500(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Monday, July 13, 2020
CA/MK/259C/2018
Before Our Lordships:
Adamu Jauro Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Between
USHAHEMBA ASORTAR APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT AN ACCUSED PERSON IS ENTITLED TO THE ASSISTANCE OF AN INTERPRETER
By Section 36 (e) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, an accused person is entitled to the assistance of an interpreter if he cannot understand the language used at the trial of the offence. Section 241 of the Criminal Procedure Code (CPC) also provides that when evidence is given in a language not understood by the accused and the accused is present in Court, it shall be interpreted to him in a language understood by him. Proceedings are liable to be set aside when they have been conducted in disregard of these provisions, with no interpreter provided as may be necessary, leading to a miscarriage of justice; Erekanure v. The State (1993) LPELR-1155(SC); Egwumi v. The State (2013) LPELR-20091(SC); FRN v. Kayode (2019) LPELR-48997(SC).
Fundamentally, these provisions, Section 36(6)(e) of the Constitution and Section 241 of the CPC, enure in favour of the accused person. The right to an interpreter cannot even be waived by his counsel; Nwachukwu v The State (2007) LPELR-8075(SC). PER OTISI, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF AN ACCUSED PERSON TO DRAW THE ATTENTION OF THE COURT FOR THE NECESSITY OF THE COURT TO PROVIDE AN INTERPRETER
It is the duty of the accused person or his counsel to draw the attention of the Court for the necessity of the Court to provide an interpreter to enable the accused follow the proceedings which are being conducted in the language that he is not familiar with; Lanre v. State (2018) LPELR-45156(SC); Okoro v State (2012) LPELR-7846(SC); Onyia v. State (2008) LPELR-2743(SC). It is a complaint raised at the hearing before the lower Court, not on appeal; Okoro v State (supra); Egwumi v. The State (supra). PER OTISI, J.C.A.
WHETHER OR NOT A CORROBORATIVE EVIDENCE MUST BE INDEPENDENT AND CAPABLE OF IMPLICATING THE ACCUSED IN RELATION TO THE OFFENCE CHARGED
Corroborative evidence must be independent, credible and capable of implicating the accused in relation to the offence charged. It must go to confirm and support that evidence which is in itself sufficient, satisfactory and credible; Iko v The State (2001) LPELR-1480(SC); (2001) SCNJ 39. In defining the objective or purpose of corroboration, the Apex Court per Kalgo, JSC in Iko v The State (supra) at page 13 of the E-Report cited with approval the dictum of Lord Morris in D.P.P. v. Hester (1973) AC 296 at 315 as follows:
“The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible: and corroborative evidence will only fill its role if it itself is completely credible evidence.”
Such corroborative evidence includes a medical report which shows injury to the private part of the victim or any other part of her body; Iko v The State; Popoola v. State (2013) LPELR-20973(SC); Usman v The State (supra). PER OTISI, J.C.A.
THE DUTY OF THE COURT WHERE A MINOR IS CALLED UPON AS A WITNESS TO GIVE EVIDENCE IN A CASE
Section 209(1) and (3) provide as follows:
209. (1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court he is possessed of such intelligence to justify the reception of his evidence and understands the duty of speaking the truth.
(2) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection (1) of this section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.
By these provisions, where a minor is called upon as a witness to give evidence in a case, the Court, is duty bound to conduct a preliminary enquiry to ascertain whether or not the minor possesses sufficient intelligence to answer the questions that will be put to her, also that she understands the duty of speaking the truth. The law is established that this special procedure requires the learned trial Judge to put first, certain questions that are unrelated and unconnected with the facts in issue to the minor, who ought to provide answers intelligently; Idi v The State (2017) LPELR-42587(SC) at pages 13 – 14; Dagayya v. State (2006) LPELR-912(SC), Okon & Ors v. The State (1988) LPELR-2472(SC). PER OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The High Court of Justice of Benue State sitting at Gboko, Coram P.T. Kwahar, J., in a judgment delivered in Charge No GHC/16C/2011 on June 6, 2018, convicted the Appellant for the offence of having carnal intercourse with a 4 year-old female child, punishable under Section 285 of the Penal Code Law, Cap 124, Laws of Benue State, 2004.
The facts of the case as gleaned from evidence adduced, was that the Appellant invited the victim to his room and forcefully had sexual intercourse through the anus with her. The incident took place at about 10:00 am on 9/12/2010 at Anyiman Settlement Area in Gboko West, Gboko. The Appellant, who was a staff of Vandeikya Local Government Council but who lived beside the family of the victim, in his defence asserted that he was not at home, the locus criminis, at the material time, having left at about 8:00 am for his work place and that he did not see the victim on the said date.
At the trial, the prosecution called four prosecution witnesses, who were: the father of the victim, PW1; the mother of the victim, PW2; the victim herself,
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PW3, and PW4, a neighbour. The prosecution also tendered from the Bar two exhibits, Exhibit A was the Appellant’s statement to the Police, and, Exhibit B was the medical report. The Appellant testified in his defence as DW1 and called one witness, DW2. At the conclusion of hearing, the trial Court found the Appellant guilty of the offence and sentenced him to five years imprisonment, without option of fine.
Aggrieved by his conviction and sentence, the Appellant lodged this appeal by Notice of Appeal filed on 2/8/2018. An Amended Notice of Appeal was filed on 11/3/2019 but deemed properly filed and served on 15/5/2019 on five grounds of appeal.
The Appellant’s Brief, settled by J.T. Injua, Esq., was filed on 11/1/2019 but deemed properly filed and served on 15/5/2019. The record of Court disclosed that the Respondent was served with the Appellant’s Brief on 20/2/2019, but the Respondent filed no Brief in response. The record of Court further disclosed that on 27/5/2020 at about 10.12 a.m. the Respondent, through P.M. Ukande, Esq., Director, Public Prosecution, Ministry of Justice, Benue State, was served with Hearing Notice for the
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hearing of the appeal. But at the hearing of the appeal on 2/6/2020, the Respondent was not represented. Being satisfied that the Respondent had sufficient notice of the hearing of the appeal, the Court proceeded to hear the appeal.
I.R. Adekwagh, Esq., holding the brief of J.T. Injua, Esq., adopted the arguments set out in the Appellant’s Brief and urged the Court to allow the appeal. Two issues were distilled for determination as follows:
(1) Whether the trial High Court, Gboko afforded fair trial to the Appellant as required by law? Distilled from additional ground one.
(ii) Whether the judgment of the trial High Court, Gboko is perverse? Distilled from all the grounds of appeal.
It is apparent that the Appellant’s Counsel has only distilled one competent issue for determination of this appeal. This is because while Issue 1 was distilled from the ground 1 of the grounds of appeal, Issue 2, was also distilled from all the grounds, which include ground 1. I consider it to be a well settled and elementary rule grounding appellate jurisdiction that one issue cannot be tied to more than one ground of appeal; Agu v. Ikewibe (1991)
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3 NWLR (Pt. 180) 385; Yusuf & Ors v. Akindipe & Ors (2000) LPELR-3532(SC); Duwin Pharmaceutical and Chemical Co. Ltd v. Beneks Pharmaceutical and Cosmetics Ltd & Ors (2008) LPELR-974(SC); Joseph Bille v. The State (2016) LPELR-40832(SC). Issue 2, which also was formulated from ground 1 as was Issue 1, is in violation of this established principle. It makes no difference that other grounds of appeal were involved in formulating Issue 2; State v. Omoyele (2016) LPELR-40842(SC).
The two issues really ought to be ignored or struck out for incompetence, as it is not the duty of the Court to make a choice for the Appellant between the two issues framed from one ground of appeal; Society Bic S.A. & Ors v. Charzin Industries Ltd (2014) LPELR-22256(SC). However, I will strike out Issue 2, which was the second issue drawn from ground 1 for having been raised in violation of the principle of formulation of issues in an appeal;Bille v. The State (supra) at page 7. This appeal shall therefore be determined on the basis of Issue 1.
Issue 1
The Appellant’s Counsel has argued that fair trial was not accorded the Appellant by failure of
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the trial Court to apply the rules of procedure, practice and the law of evidence in arriving at the decision to convict and sentence the Appellant. On what is entailed by fair hearing, reliance was placed on the case of RTCFM v. Akugha (2009) 15 NWLR (Pt. 1164) 386 at 403.
It was submitted that the Appellant and all other persons who testified in the case were Tiv by tribe and certainly spoke Tiv, but that the trial Court did not oblige the Appellant by complying with Section 241 of the Criminal Procedure Code Law which provides for use of interpreters and accompanying procedure. It was posited that if qualified interpreters were used in the trial Court, the trial Court would have better understood the evidence of PW3 as to whether there was penetration and of what exact organ of hers. It was argued that the trial Court went into speculation when it held that there was penetration of the anus of PW3 while PW3 said there was penetration of her vagina. The lack of interpreters was argued to have been fatal to the case of the prosecution.
It was contended that the Appellant was denied fair hearing when prosecuting State Counsel, who is not the author
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of Exhibit B, the medical report, tendered it from the Bar, pursuant to Section 83(2) (a) of the Evidence Act, 2011 without compliance with Section 249(3)(b) of the Criminal Procedure Code Law. Counsel for the Appellant posited that the trial Court wrongly relied on Exhibit B, the medical report, as corroborating the evidence of PW3, when Exhibit 3 was not tendered by the maker and no statement contained therein was read over to the Appellant nor was he asked whether he disagreed with it or not.
It was further argued that the trial Court acted in breach of Section 249(3)(b) of the Criminal Procedure Code Law by ascribing probative value to a document that was not tendered by the maker. The decision in Nyesom v Peterside (2016) 7 NWLR (Pt. 1512) 452 SC was cited and relied on to submit that a document that was not tendered by the maker, even though admissible, had no probative value. The Appellant was not availed the opportunity to cross examine the maker of Exhibit B. The Court was urged to hold that this was a fundamental lapse which could earn the Appellant an acquittal. The Court was finally invited to examine the proceedings of the lower Court in
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order to ascertain whether or not there was compliance with relevant provisions of the Criminal Procedure Code Law, as held to be the duty of the Court in A.G. Kwara State v. Adeyemo (2016) 7 KLR (pt. 389) 3209 at 3224.
Resolution
As a preliminary point, the complaints of the Appellant do not appear to be borne out by the proceedings before the lower Court as transcribed in the Record of Appeal.
In the first place, there is no record in the entire proceedings before the lower Court as transcribed in the Record of Appeal where note was made of the tribe of the Appellant, the witnesses or of the learned trial Judge. PW1 testified that he was a teacher with the Department of Mathematics, College of Education, Katsina-Ala. PW2 was his wife, a house wife. PW3 was the victim, a Primary 1 pupil of Holy Child Primary School, Gboko. PW4 testified that he was a Civil Servant. The Appellant was a Civil Servant with the Vandeikya Local Government. DW2 was a trader. In no part of the proceedings was the tribe of witnesses and the Appellant stated to be Tiv or that the witnesses testified in any language, including Tiv, other than the language of the Court,
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which is English language.
On 24/4/2013, the Appellant took his plea in English. The proceedings went as follows, page 34 of the Record of Appeal:
“Court: The charge is read and explained to the accused in English.
Court to accused: Do you understand the charge?
Accuse(sic): I understand the charge.
Court: Are you guilty or not guilty?
Accused: I am not guilty.”
The Appellant was represented by his Counsel therein, R.K. Amayange, Esq. The Appellant therefore understood the charge before taking his plea.
By Section 36 (e) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, an accused person is entitled to the assistance of an interpreter if he cannot understand the language used at the trial of the offence. Section 241 of the Criminal Procedure Code (CPC) also provides that when evidence is given in a language not understood by the accused and the accused is present in Court, it shall be interpreted to him in a language understood by him. Proceedings are liable to be set aside when they have been conducted in disregard of these provisions, with no interpreter provided as may be
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necessary, leading to a miscarriage of justice; Erekanure v. The State (1993) LPELR-1155(SC); Egwumi v. The State (2013) LPELR-20091(SC); FRN v. Kayode (2019) LPELR-48997(SC).
Fundamentally, these provisions, Section 36(6)(e) of the Constitution and Section 241 of the CPC, enure in favour of the accused person. The right to an interpreter cannot even be waived by his counsel; Nwachukwu v The State (2007) LPELR-8075(SC). But, these provisions do not enure in favour of the trial Court. Further, there was no note, all through the proceedings, that evidence was given in Tiv language. Therefore, the contention that the trial Court would have understood better the case of PW3 if there was interpretation of evidence, which was not recorded to have been given in Tiv language, falls within the realm of pure speculation. It is non sequitur and cannot be countenanced by this Court,
There was no requirement for an interpreter because none was needed. The submission by the Appellant’s Counsel that the Appellant and all other persons who testified in the case were Tiv by tribe and certainly spoke Tiv, but that the trial Court did not oblige the Appellant by
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complying with Section 241 of the Criminal Procedure was therefore not borne out by the records. Further, the Appellant was represented by Counsel all through proceedings at the lower Court. It is the duty of the accused person or his counsel to draw the attention of the Court for the necessity of the Court to provide an interpreter to enable the accused follow the proceedings which are being conducted in the language that he is not familiar with; Lanre v. State (2018) LPELR-45156(SC); Okoro v State (2012) LPELR-7846(SC); Onyia v. State (2008) LPELR-2743(SC). It is a complaint raised at the hearing before the lower Court, not on appeal; Okoro v State (supra); Egwumi v. The State (supra). The reason is that if the complaint was not raised at the trial, the accused person would be taken to have acquiesced to an irregular procedure. And, as long as no miscarriage of justice is shown, a conviction arising therefrom would stand; Okoro v State (supra). The fact that throughout the proceedings the defence, which includes the Counsel and the Appellant, did not raise objection to, or any complaint that there was no interpreter and that as a result the
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Appellant could not sufficiently follow the proceedings at the trial, raises the presumption that they waived the services of an interpreter. By that presumption, the defence thereby was not prejudiced by the lack of an interpreter, if at all one was required. The presence of the defence Counsel throughout bolsters that presumption which thus raises estoppel by conduct under Section 169 of the Evidence Act, 2011; Olanrewaju v. State (2020) LPELR-49569(SC). The burden on the Appellant to establish in what respect he suffered prejudice or miscarriage of justice by the fact that he did not have an interpreter was therefore not established. However, as has been noted from the Record of Appeal, there was no requirement for an interpreter because none was needed.
Exhibit B was the medical report. It was tendered from the Bar by the Respondent’s Counsel. Now, by the provisions of Section 249(a) of the CPC, a medical report may be admitted in evidence for the purpose of proving the nature of any injuries received by such person. Section 249(b) and (c) provide:
(b) On the admission of such report the same shall be read over to the accused and he shall
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be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the court.
(c) If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical report officer or registered medical practitioner shall attend and give evidence in person the court shall summon such medical officer or registered medical practitioner to appear as a witness.
By these provisions, a medical report need not necessarily be tendered by the medical practitioner. A medical report is admissible even if it is not tendered through the maker. Indeed, there is no requirement for the medical practitioner who prepared the report to tender it, unless the accused disagreed with the contents of the report or it is desirable to call the medical officer in the interest of justice; Fulani M v. State (2018) LPELR-45195(SC). If there is need for the medical practitioner to be present at the trial for the purpose of cross examination, counsel to the accused ought to draw the attention of the trial Court to this at the hearing. The trial Court would then be required to summon the appearance of the medical
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practitioner as a witness. Although Section 249(3)(b) provides that the written medical report shall be read to the accused after its admission in evidence and he shall be asked whether he disagrees with any statement therein, where the accused person is represented by a Counsel, the Court needs not ask the accused person if he agrees with any statement in the medical report, Fulani M v. State (2018); Usman v. State (2018) LPELR-46568(CA). Under cross examination, DW1, the Appellant, said, page 41 of the Record of Appeal:
“Yes, the Pw3 was taken to General hospital Gboko for treatment. She was treated and issued with a medical report. I have seen the medical report. It has her name and age,”
The Appellant’s Counsel thereat, Mr. Amayange initially raised a halfhearted objection, which he withdrew, thus:
“The object, the medical report has no name of accused showing that the fluid or semen is his I withdraw the objection. I withdraw my objection.”
The said medical report, which was not inherently inadmissible, was then rightly admitted by the trial Court in evidence as Exhibit B, without objection by the
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Appellant who was represented by Counsel, Mr. Amayange. A belated objection cannot be raised on appeal by the Appellant; Kolawole v. State (2015) LPELR-24400(SC).
The contentions of the Appellant’s Counsel do not therefore demonstrate that there was noncompliance with the relevant provisions of the CPC that occasioned a miscarriage of justice to the Appellant. I am minded to make further remarks on the medical report, Exhibit B.
Section 285 of the Penal Code, under which the Appellant was charged, provides:
“Whoever has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.”
The elements of the offence are therefore:
1. That the accused person had carnal intercourse with a man, woman or animal;
2. That such intercourse was against the order of nature;
3. That the accused person did the act voluntarily and without compulsion;
4. That there was penetration.
The Appellant denied the offence. When an accused person has denied committing the offence, the trial Court
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is encouraged to consider corroborative evidence which confirms the evidence of a prosecutrix in cases of rape or in cases in which corroboration is required by statute or by rule of practice.
Corroborative evidence must be independent, credible and capable of implicating the accused in relation to the offence charged. It must go to confirm and support that evidence which is in itself sufficient, satisfactory and credible; Iko v The State (2001) LPELR-1480(SC); (2001) SCNJ 39. In defining the objective or purpose of corroboration, the Apex Court per Kalgo, JSC in Iko v The State (supra) at page 13 of the E-Report cited with approval the dictum of Lord Morris in D.P.P. v. Hester (1973) AC 296 at 315 as follows:
“The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible: and corroborative evidence will only fill its role if it itself is completely credible evidence.”
Such corroborative evidence includes a medical report which shows injury to the private part of the victim or any other part of
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her body; Iko v The State; Popoola v. State (2013) LPELR-20973(SC); Usman v The State (supra).
PW1 testified that, page 34 of the Record of Appeal:
“I saw her messed up. There was human faeces on her buttocks and sperms on her buttocks and on thighs and some blood oozing out of her private part. I examined her anus, there was collection of sperms in her anus.
When I asked her she said it was the accused that did that to her. That the accused took her to his room, removed her pant, removed his penis and inserted in her anus.”
He was not cross examined on these most distressing details. PW2 in evidence said, pages 35 – 36 of the Record of Appeal:
“On 9/12/2010 at about 10am I was in my compound, I then heard Iveren crying at the backyard…when I saw Iveren she had feaces(sic) and sperms over her body.”
Under cross examination, PW2 said she saw blood in Iveren’s anus not in her vagina. PW4 also testified that, page 37 of the Record of Appeal:
“I looked at the girl sperms were behind her buttocks and faeces in between the legs.”
The victim testified as PW3. She was an
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unsworn witness. PW3 was said to be 4 years old at the time of the incident on 9/12/2010. She testified on 20/6/2013. That means she was about 7 years old when she testified, obviously a minor. Section 209 of the Evidence Act, 2011 makes provision for the unsworn evidence of a child. Section 209(1) and (3) provide as follows:
209. (1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court he is possessed of such intelligence to justify the reception of his evidence and understands the duty of speaking the truth.
(2) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection (1) of this section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.
By these provisions, where a minor is called upon as a witness to give evidence in a case, the Court, is duty bound to conduct a preliminary enquiry to ascertain whether or not the minor
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possesses sufficient intelligence to answer the questions that will be put to her, also that she understands the duty of speaking the truth. The law is established that this special procedure requires the learned trial Judge to put first, certain questions that are unrelated and unconnected with the facts in issue to the minor, who ought to provide answers intelligently; Idi v The State (2017) LPELR-42587(SC) at pages 13 – 14; Dagayya v. State (2006) LPELR-912(SC), Okon & Ors v. The State (1988) LPELR-2472(SC).
At the hearing, in compliance with the law, the learned trial Judge examined PW3 as follows, page 36 of the Record of Appeal:
“What is your name: I am Iveren Dechi, I attend Holy Child Primary School Gboko. I am before a Court hall. I do not know my age. I am in primary one.”
The learned trial Judge then ruled:
“Having examined the juvenile I am of the opinion that she can testify without much constraints.”
PW3 then proceeded to give her evidence. PW3 identified the Appellant and testified that the Appellant had sex with her through her vagina. She was cross examined by the Appellant’s
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Counsel.
The medical report, Exhibit B, stated:
“TO WHOM IT MAY CONCERN
RE: – IVEREN DECHI 4 YEARS, FEMALE,
HOSPITAL NO. 36-00-35
The above named girl was brought to the hospital by both parents and police man on the 9th December, 2010. She was said to have been raped by a boy of 22 years, about 5 hours after the incidence(sic).
Examination revealed an anxious looking child, whose clothes and thighs were stained by dried seminal fluid, and feaces.
Vaginal hymen intact, but bruises seen on the anal region with small 0.3cm laceration which bleeds on exposition.
A diagnosis of rape was made (anal sex).”
Firstly, Exhibit B, which was not challenged or controverted, corroborated the evidence of PW3 that the Appellant had carnal intercourse with her. From the evidence of PW3, who said that the Appellant beckoned her and took her into his room, the Appellant acted voluntarily. On the issue of penetration, PW3 said the intercourse was through her vagina. The medical report however indicated that penetration was through her anal region and she had suffered injuries thereat.
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The learned trial Judge held, page 44 of the Record of Appeal:
“There was therefore prima facie evidence that the Pw3 was raped, and this dastard act was through the anus. Although the Pw3 said it was in the vagina, the medical report states that it was in the anus. This notwithstanding, this Court took judicial notice of the age of the victim who is a child and may not know the sharp difference between the anus and vagina. The Pw1 is Pw3’s father, he examined her and said there was collection of sperms in her anus.”
I agree completely with the learned trial Judge. The victim was a mere child. She may not appreciate the precise difference between the vagina and the anus at that young age. Indeed, the findings of the medical doctor who signed Exhibit B was in line with unchallenged evidence of PW1, PW2 and PW4 to the effect that penetration was through the anus of PW3. The intercourse was most certainly against the course of nature, not only by reason of penetration through the anus but also by reason of the age of the victim. The learned trial Judge then concluded that the Respondent had proved its case beyond reasonable doubt. I agree completely
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and see absolutely no reason to disturb the said conclusion.
Although the law provides that an offender shall be liable to a term of imprisonment that may extend to fourteen years and also be liable to fine, the Appellant was sentenced to five years without option of fine. He was described as a first offender. And I wonder whether he should be given a chance to become a second offender. In my view, the sentence of the Appellant amounted to a mere slap on the wrist. The Respondent, who for reasons best known to them but which reasons I cannot appreciate, having regard to the facts of this case, filed no challenge to this appeal. There was therefore no appeal against the sentence of the Appellant.
The dastardly act of the Appellant is to be condemned in the harshest terms. The act of the Appellant not only caused physical injuries to PW3, a minor, but also had the capability of leading to other forms of trauma manifesting in her life in future. Society appears to have been recently struck by a blitz of profane desires displayed in unrestrained immorality. If these desires were to engaged in consensually then perhaps condemnation may be limited
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to the morality of such actions. But where one party is forcefully made a participant, more so a child, then, in my view, such action must be condemned as ignoble. despicable, shameful and should be maximally punished.
This appeal is completely without merit. It fails and is hereby dismissed. The sentence and conviction Of the Appellant on 6/6/2018 in Charge No GHC/16€/2011, is affirmed.
ADAMU JAURO, J.C.A.: I had the privilege of reading in draft the judgment just delivered by learned brother, ONYEKACHI AJA OTISI, JCA. I am in complete agreement with the reasoning and conclusion contained therein to the effect that the appeal is lacking in merit and ought to be dismissed.
I adopt the judgment as mine and join my brother in dismissing the appeal.
Appeal Dismissed.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in
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advance the lead judgment of my learned brother, Otisi, JCA, which has just been delivered. I agree entirely with the reasoning and conclusion that the appeal is completely without merit.
The charge was read and explained to the appellant in English and he stated unequivocally that he understood the same and pleaded not guilty. Again, the appellant testified in his defence in English. There was therefore no need for him to have the assistance of an interpreter as he understood the language used at the trial of the offence, to wit; English. The need for an accused person to have the assistance of an interpreter in a trial arises if he cannot understand the language of the trial. See Section 36(6)(e) of Constitution of Nigeria, 1999 (as amended). Further, the appellant was represented by counsel at the trial. It is now too late in the day to raise the objection or point as to absence of an interpreter at this appellate stage. See Okoro V State (2012) 4 NWLR (Pt. 1290) 351.
It is not mandatory that a medical officer who prepared a medical report should testify in Court before the report can be tendered in evidence and be utilized by the Court. The
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tendering of such a report, as Exhibit B, effectively dispenses with the attendance of the medical officer pursuant to Section 249(3) of the Criminal Procedure Code. See Achukwu V State (2015) 6 NWLR (Pt. 1456) 125 and Fulani V State (2018) LPELR – 45195 (SC). Since appellant was represented by counsel, it was unnecessary to ask him if he agreed with the content of the report.
The appellant was sentenced to 5 years imprisonment for the dastardly offence of having carnal intercourse against the order of nature with the victim who was only 4 years old at the time of the crime. Admittedly by Section 285 of the Penal Code Law, Cap. 124, Laws of Benue State 2004, an offender is liable to a term of imprisonment that may extend to 14 years and a fine. The trial Court was no doubt well within the law in the said sentence. However it is my humble view that the sentence was rather light compared to the gravity of the offence. Having sexual intercourse of any kind with a 4 year old child is the height of sexual perversion. It is capable of leading to the death of the child or leaving the child permanently damaged, physically and psychologically. Such a crime should be punished by the
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imposition of the maximum sentence of 14years imprisonment and a fine to serve both as punishment and deterrence. Most curiously the state did not respond to the appeal, not to talk of appealing against the sentence. Sexual offence are threatening to become an epidote in our society and therefore be treated with the seriousness that they deserve.
I agree therefore with my Learned brother that the appeal ought to be dismissed and I also dismiss the same.
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Appearances:
I.R. Adekwagh, Esq., holding the brief of J.T. Injua, Esq. For Appellant(s)
The Respondent, served with Hearing Notice through P.M Ukande, Esq. Director, Public Prosecution, Ministry of Justice, Benue State was not represented. For Respondent(s)
