AKILE v. FRN (2020)

AKILE v. FRN

(2020)LCN/14514(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, July 24, 2020

CA/A/1108C/2019

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

EMEKA AKILE APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

DEFINITION OF A “PERVERSE DECISION”

A perverse decision is aptly defined by the Apex Court in the case of ATOLAGBE V SHORUN (1985) 1 NWLR, PT 2, 360 per OPUTA JSC in these terms:-
”Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial judge took into account, matters which he ought not to have taken into account or where the judge shuts is eyes to the obvious.”
Uwaifo JSC puts it very succinctly in UDENGWU V UZUEGBU & ORS (2003) 13 NWLR, PT 836, 136 as follows:
“A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence; or that it misconceived the thrust of the case presented or took irrelevant matters into account which substantially formed the basis of its decision or went outside the issues canvassed by the parties to the extent of jeopardising the merit of the case or committed various errors that faulted the case beyond redemption. The hallmark is invariably, in all these, a miscarriage of justice and the decision must be set aside on appeal.”
See also the cases of ADIMORA V AJUFO (1988) 3 NWLR, PT 80, 1 and MAMONU & ANOR V DIKAT & ORS (2019) LPELR – 46560 (SC). PER MAHMOUD, J.C.A.

WHETHER OR NOT THE ABSENCE OF A LAWYER AT THE TIME A CONFESSIONAL STATEMENT IS TAKEN AFFECTS THE VOLUNTARINESS OF THE STATEMENT

This is to the effect that he does not see how the absence of a lawyer or a legal practitioner at the time appellant’s statement was taken affects the voluntariness of the said statement. This is especially so because voluntariness and admissibility of documents are governed by Sections 28 and 29 of the Evidence Act and not by the ACJA. I also share the view that the word ‘may’ used in Section 17(2) makes the provision permissive and not mandatory. This means that the presence of a legal practitioner could be dispensed with depending on the exigencies of each particular case. It is instructive that there is no sanction provided by Section 17(2) and counsel cannot read into the law what it does not specifically provide for.
It is paramount to resolve the position of the Supreme Court case of OWHORUKE V COP (also cited in (2015) 15 NWLR, PT 1483, 557) vis a vis this case and indeed the case of OGUNTOYINBO V FRN (SUPRA) which is later in time. The appellant’s counsel had cited the Supreme Court case with the mindset that it minds this Court being a decision of the apex Court. It is unarguable that the doctrine of stare decisis remains a sina qua non in the hierarchical structure of our Courts to ensure for certainty in the state of the law and its application. I must hasten to add that the twin principles of stare decisis and judicial precedent are applicable where the facts are on all fours or where the holding is based on the ratio decidendi of the case and is not merely an obiter dictum: OSAKUE V FCE ASABA (2010) 10 NWLR, PT 1201, 1 and JTCADS NIG LTD & ANOR V STANBIC IBTC BANK PLC (2017) LPELR – 42786 (CA). In the case under reference, OWHORUKE V COP (SUPRA) it is implicit in the holding of RHODES VIVOUR that his opinion therein is not the ratio decidendi of the case but is only an obiter. For the avoidance of doubt I reproduce it:
“Confessional statements are most times beaten out of suspects, and the Courts usually admit such statements as counsel and the accused are unable to prove that the statement was not made voluntarily ……………………….. IT IS SERIOUSLY RECOMMENDED that confessional statements should only be taken from suspect if, and only if his counsel is present, or in the presence of a legal practitioner. Where this is not done such a confessional statement should be rejected by the court”. (Emphasis provided).
This is only an obiter dictum and at best of persuasive authority but not a binding precedent as urged by the appellant’s counsel. PER MAHMOUD, J.C.A.

WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT ALONE

I am not unmindful of the settled position of the law that an accused person can be convicted on his confessional statement alone; SALIU V THE STATE (2014) 12 NWLR, PT 1420, 65, JOHN V STATE (2019) LPELR – 46936 (SC) and KAMILA V STATE (2018) LPELR – 43603 (SC). But such confession must be one that is cogent, positive, direct, and unequivocal and establishes all the ingredients of the offence charged. DOGO V. STATE (2013) 10 NWLR, PT 1361, 160, HASSAN V THE STATE (2001) 15 NWLR PT 735, 184, YESUFU V STATE (1976) 6 SC (REPRINT) 109 and ADAMU V STATE (2019) LPELR-46902(SC). PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant, Emeka Akile was arraigned and tried on a one count charge of rape contrary to Section 1(1)(a) and (b) and punishable under Section 1(2) of the VIOLENCE AGAINST PERSONS (PROHIBITION) ACT, 2015 (VAPA) before the High Court of the Federal Capital Territory, Abuja. In proof of its case, the prosecution called three witnesses and tendered four exhibits.

The case of the prosecution was that the nominal complainant/victim was taken by her aunt, PW2 sometimes in August 2012 to the family of MR & MRS Ifeanyi & Anthonia Akunne at the Federal Housing Estate, Lugbe, Abuja as a househelp on a monthly salary of N10, 000. That the family enrolled her in school and in March, 2013 when the family relocated to Harare, Zimbabwe, the nominal complaint also went with them. She returned to Nigeria with the family in 2016 and continued to live and work with them until October, 2016 when her aunt, PW2 went to take her away from the house.

According to the nominal complainant, she was raped in June or July 2016. In one breath, the nominal complainant said she

told the aunt about the rape when she came to pick her from the house of the Akunne’s. In another, she stated that she told the aunt about the rape when she went to visit her in Kaduna. She however admitted that she and the aunt reported the rape incident to the Lugbe Police Station, Human Right Commission, Legal Aid Council and NAPTIP.

At the conclusion of the prosecution’s case, the accused/appellant filed a no case submission. The trial Court on the 28/10/2018 overruled this submission and ordered the appellant to enter his defence.

In his defence, the appellant testified in his own behalf as DW1 and called one other witness who testified as DW2.

At the conclusion of hearing, the learned trial judge, Hon. Justice Olukayode A. Adeniyi in a judgment delivered on the 08/10/2019 convicted the appellant as charged and sentenced him to 12 (twelve) years imprisonment without an option of fine.

Dissatisfied with this conviction and sentence, the appellant by a Notice of Appeal dated 11/11/2019 but filed on the 14/11/2019, appealed to this Court on three grounds as follows:-
1. The Learned Trial Court misdirected itself when it

admitted inadmissible evidence and came to a perverse decision albeit miscarriage of justice when it held at pages 22 and 23 of its judgment as follows:
“The testimony of the PW1 was further that it was the only occasion that the Defendant had sexual intercourse with her, I totally disbelieve the account of the defendant in his oral testimony that he had sex with PW1 on several occasions and that it was consensual. His account in his extra-judicial (statement) is more in accord with the evidence of the PW1, than the totally different story he told in his oral testimony.”
2. The Court below denied the Appellant fair hearing when it refused to allow, accept or consider evidence of a relationship between the Nominal Complainant and the Appellant prior to and after the sexual act therefore occasioning miscarriage of justice when it held at page 20 of its judgment as follows:
“It is interesting to note that the Defendant attempted to paint a completely different picture in his oral testimony. He testified that PW1 and he were lovers and that it was the PW1 that made advances at him; that she confessed her love for him in text

messages she sent to him; that they exchanged phone calls several times even after she had left the Akunne’s residence; and that his intention was to marry her.”
3. The judgment of the trial Court is against the weight of evidence.

Whereof the appellant sought the leave of Court to set aside the judgment of the lower Court or order a retrial.

In prosecuting the appeal, the appellant filed his brief of argument on the 15/01/2020 which was deemed properly filed on the 19/05/2020.

The appellant also filed a reply brief on the 19/03/2020 also deemed properly filed on the 19/05/2020 in which he responded to the Notice of Preliminary Objection filed by the respondent. In arguing the appeal, MR Sunday Omekedo of counsel for the appellant adopted the said briefs as their legal arguments in support of the appeal. In it counsel formulated four issues for determination, namely:-
1. Whether the Learned trial Judge was right when he admitted and relied on inadmissible evidence of the Appellant in convicting him notwithstanding that the confessional statement offends Section 17 Administration of Criminal Justice Act, 2015? (Ground 1).

Whether the Appellant was not denied his right to fair hearing when the Learned trial Judge refused to give opportunity to the Appellant to tender a very vital evidence? (Ground 2).
3. Whether the failure of the Learned trial Judge to review and weigh the contradictory statements of PW1 in his decision is not against the weight of evidence? (Ground 2).
4. Whether the decision of the trial Court was arrived at upon proper evaluation of evidence presented before the Court.

Upon being served with the appellant’s brief of argument, the respondent filed a Notice of Preliminary Objection on the 17/02/2020. Rather than argue the Preliminary Objection in their brief of argument as is the practice, the respondent annexed a written submission to the Notice of Preliminary Objection which MR A. O. Shaibu of counsel adopted as their arguments in support. Counsel equally adopted their brief also filed on 17/02/2020 and deemed properly filed on the 19/05/2020 as their legal arguments in opposition to the appeal. In it the appellant adopted the four issues raised by the appellant for determination.

Ordinarily this should make my work easier as I do

not have to elect upon whose issues to determine this appeal. Sadly, these issues are not ordinary in any way. The grounds of appeal in this matter are basically two as the third ground is the omnibus ground. The settled position of law is that it abhors proliferation of issues. The Supreme Court and indeed this Court have consistently condemned the proliferation of issues. The preferred practice is that issues for determination should not outnumber the grounds of appeal: MOZIE V MBAMALU (2006) NWLR, PT 1003, 466; NEW NIGERIA BANK LTD V EDOMA & OTHERS (2001) 1 NWLR PT 695, 535; IKUFORIJI V FRN (2018) LPELR-43884(SC) and HON V UMENNADI (2019) LPELR-47023(CA). In the instant appeal four issues were distilled from three grounds of appeal. Issues (2) and (3) are both formulated from ground (2) of the grounds of appeal. However, since the respondent was oblivious to this and adopted the issues as raised and because during the hearing of this appeal, this Court did not give the parties an opportunity to address it on the competence of the four issues raised from two or three grounds of appeal and more importantly since this is a criminal case which

discourages the Court from visiting the inadequacies of counsel on the litigant, I am guided by the wise counsel in IKUFORIJI V FRN (SUPRA); CPL DESMOND ONONUJU V THE STATE (2013) LPELR-20803(SC) and PATRICK MICHAEL & ORS V BANK OF THE NORTH (2015) 12 NWLR, PT 1473, 370 to and in the interest of justice exercise my discretion and reframe the issues for determination.

I hereby do so:
1) Whether from the evidence on record the decision of the learned trial judge is perverse?
2) Whether there was denial of fair hearing to the appellant?

To my mind these two issues will adequately deal with all the concerns raised particularly by the appellant in his brief.

It is no doubt advisable to first determine the preliminary objection as raised by counsel. The ground of the objection is that the notice of appeal in this case dated 11/11/2019 and filed on the 14/11/2019 was not signed by the Appellant as prescribed by Order 17 (4) (1) – (5) of the Court of Appeal Rules, 2016. The respondent’s counsel filed a written address in support of this Preliminary Objection which he adopted as his arguments in support of the

objection. The appellant’s counsel on their part filed a reply brief which they also adopted. It is in it that counsel responded to the notice of preliminary objection. I have considered the submissions of both counsel to this preliminary objection.

For a better appreciation of the provision of the rule in question I reproduce it. Order 17(4) (1) of the Rules of Court 2016 provides:
“Every notice of appeal or application for leave to appeal or notice of application for extension of time within which such notice shall be given, SHALL BE SIGNED BY THE APPELLANT HIMSELF OR HIS LEGAL REPRESENTATIVE except under the provisions of sub-rules (5) and (6) of this rule. (Emphasis provided).
Without any pretence, the capitalised words are very clear that a notice of appeal is competent if it is signed by either the appellant himself or his counsel. This is how it should be as it accords with the fundamental right of every citizen charged with an offence to defend himself either personally or by a counsel of his choice. It will be quite charitable of me and appropriate in the circumstances to wonder how a lawyer who has gone through the law school

and been called to the Bar could read this provision and not only give it the interpretation given by learned counsel but even cite authorities in purported support thereof out of context! I say no more but only to reiterate that by the ordinary meaning of the said rule a notice of appeal signed by an appellant or his legal practitioner is competent. The provision of the 2011 Rules of Court quoted by counsel is not on all fours with the current Rules of 2016 as the expression “or his legal practitioner” in the current Rules of Court is not contained in the 2011 Rules. Consequently, I hold that this preliminary objection is grossly misconceived. It fails and it is appropriately dismissed.

Going back to the two issues raised for determination and dealing with issue 1 first, it is pertinent to define what a ‘perverse decision’ is. A perverse decision is aptly defined by the Apex Court in the case of ATOLAGBE V SHORUN (1985) 1 NWLR, PT 2, 360 per OPUTA JSC in these terms:-
”Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may

be perverse where the trial judge took into account, matters which he ought not to have taken into account or where the judge shuts is eyes to the obvious.”
Uwaifo JSC puts it very succinctly in UDENGWU V UZUEGBU & ORS (2003) 13 NWLR, PT 836, 136 as follows:
“A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence; or that it misconceived the thrust of the case presented or took irrelevant matters into account which substantially formed the basis of its decision or went outside the issues canvassed by the parties to the extent of jeopardising the merit of the case or committed various errors that faulted the case beyond redemption. The hallmark is invariably, in all these, a miscarriage of justice and the decision must be set aside on appeal.”
See also the cases of ADIMORA V AJUFO (1988) 3 NWLR, PT 80, 1 and MAMONU & ANOR V DIKAT & ORS (2019) LPELR – 46560 (SC).

The grouse of the appellant in respect to this issue is in my view twofold:
That the trial Court relied on inadmissible evidence and secondly that it failed to properly evaluate

the evidence before her in arriving at her decision.

On the first leg of the contention, counsel submitted that the confessional statement relied heavily on by the trial Court in convicting the appellant was obtained in contravention of Section 17(1) (2) of the Administration of Criminal Justice Act (ACJA). That because the alleged confessional statement of the appellant was not taken in the presence of his counsel or a legal practitioner, the trial Court ought to have rejected it in compliance with the said Section 17(1) & (2) of the ACJA. Counsel relied on the case of ELIZABETH N. ANYAEBOSI V R. T. BRISCOE (NIG) LTD (1987) LPELR – SC 169/1985 to argue that in the face of the law the alleged confessional statement of the appellant is made admissible only if it is obtained in the presence of his counsel or a legal practitioner. That on the authority of AGBOOLA V STATE (2013) LPELR – 20652 (SC) 47-48 PARAS D-A, this Court must reject such evidence and decide the appeal on legal evidence. That the conviction of the appellant on his inadmissible extra-judicial statement has occasioned a miscarriage of justice to him.

In response to this

issue the respondent’s counsel relied on and quoted very extensively the decision of this Court in the case of OGUNTOYINBO V FRN (2018) LPELR 45218 (CA) to show that Section 17(2) of the ACJA is permissive and not mandatory. That the failure of the Investigating Police Officer (IPO) to ensure that the confessional statement of the appellant was obtained in the presence of his counsel or a legal practitioner cannot affect its admissibility. That the holding of the Supreme Court in OWHORUKE V COP (2015) LPELR – 24820 (SC) that a confessional statement not taken in the presence of a legal practitioner is rendered inadmissible was given per incuriam and has no binding effect on this Court. Counsel urged the Court to resolve this issue in favour of the respondent.

I have read very carefully the entire judgment of the learned trial judge in this matter. In the first place, unlike in the case of OGUNTOYINBO V FRN (SUPRA), the issue of the admissibility of the confessional statement was never raised at the trial Court. The learned trial judge did not have the opportunity to make a finding on it one way or the other. But even if he did and allowed or admitted the confessional statement of the

appellant in spite of the objection of learned counsel that it was obtained in the absence of a legal practitioner, I would readily adopt the holding of the learned trial judged as rightly affirmed by my learned brother OWOADE, JCA. This is to the effect that he does not see how the absence of a lawyer or a legal practitioner at the time appellant’s statement was taken affects the voluntariness of the said statement. This is especially so because voluntariness and admissibility of documents are governed by Sections 28 and 29 of the Evidence Act and not by the ACJA. I also share the view that the word ‘may’ used in Section 17(2) makes the provision permissive and not mandatory. This means that the presence of a legal practitioner could be dispensed with depending on the exigencies of each particular case. It is instructive that there is no sanction provided by Section 17(2) and counsel cannot read into the law what it does not specifically provide for.
It is paramount to resolve the position of the Supreme Court case of OWHORUKE V COP (also cited in (2015) 15 NWLR, PT 1483, 557) vis a vis this

case and indeed the case of OGUNTOYINBO V FRN (SUPRA) which is later in time. The appellant’s counsel had cited the Supreme Court case with the mindset that it minds this Court being a decision of the apex Court. It is unarguable that the doctrine of stare decisis remains a sina qua non in the hierarchical structure of our Courts to ensure for certainty in the state of the law and its application. I must hasten to add that the twin principles of stare decisis and judicial precedent are applicable where the facts are on all fours or where the holding is based on the ratio decidendi of the case and is not merely an obiter dictum: OSAKUE V FCE ASABA (2010) 10 NWLR, PT 1201, 1 and JTCADS NIG LTD & ANOR V STANBIC IBTC BANK PLC (2017) LPELR – 42786 (CA). In the case under reference, OWHORUKE V COP (SUPRA) it is implicit in the holding of RHODES VIVOUR that his opinion therein is not the ratio decidendi of the case but is only an obiter. For the avoidance of doubt I reproduce it:
“Confessional statements are most times beaten out of suspects, and the Courts usually admit such statements as counsel and the accused are unable to prove that

the statement was not made voluntarily ……………………….. IT IS SERIOUSLY RECOMMENDED that confessional statements should only be taken from suspect if, and only if his counsel is present, or in the presence of a legal practitioner. Where this is not done such a confessional statement should be rejected by the court”. (Emphasis provided).
This is only an obiter dictum and at best of persuasive authority but not a binding precedent as urged by the appellant’s counsel. In the circumstances I elect to follow the decision of this Court in OGUNTOYINBO V FRN (SUPRA) and reiterate that the provision of Section 17(2) of the ACJA is permissible and not mandatory.
That what the trial judge chooses to do depends on the circumstances of the case and the exercise of his discretion.

In the instant case, the important consideration is not whether the alleged confessional statement was admissible or inadmissible. The crux of the matter in my view is whether the alleged confessional statement was positive, consistent with other facts and have been ascertained and proved before the trial Court sufficient to sustain the conviction of the appellant for

the offence charged. In the case of SOLOLA V STATE (2005) 11 NWLR, PT 937, 460 the Supreme Court held that before a confessional statement could result in the conviction of an accused, it must be unequivocal in the sense that it leads to the guilt of the maker. That where a so called confessional statement is capable of two interpretations, a trial judge will not convict the accused but give him the benefit of doubt. I have already reproduced portions of Exhibit P4, the alleged confessional statement of the appellant. It never admitted to raping the victim. It only admitted to having sexual intercourse with her.
I have stated differently in this judgment that this can be interpreted to mean consensual sex or rape. On the authority of SOLOLA V STATE (SUPRA) and in the absence of any cogent evidence to show that the victim did not give her consent or that such consent was violently procured, I hold that the appellant must be given the benefit of doubt. See also the case of AKINRINLOLA V STATE (2016) LPELR-40641(SC) and NALADO V STATE (2019) LPELR-47626(SC)

The contention of the appellant’s counsel in respect of the second segment of this issue

is that the learned trial judge did not properly evaluate the evidence before him before convicting and sentencing the appellant thereon. Counsel premised his argument on the case of ADAMU V THE STATE (1991) 4 NWLR, PT 187, 530 to submit that there is no justice in the case if the learned trial judge without evaluating the evidence just holds that he believes one side and disbelieves the other.

In reply the respondent’s counsel submitted that there was sufficient and legal evidence on record by the prosecution to prove the offence with which the appellant was charged, tried and convicted. I will deal with this issue later in this judgment.

The second issue as raised is whether or not the appellant was denied his right to fair hearing in this matter. In answering this issue, in the negative, appellant’s counsel submitted that from the records, the appellant was not given a fair hearing as no opportunity was given to him to present the evidence contained in his phone. That upon objection by the prosecution/respondent’s counsel for non-compliance with Section 84 of the Evidence Act, the appellant asked for an adjournment to enable him

comply. The Court overruled the application for adjournment and directed the appellant to proceed with his defence. The pertinent question to ask and answer at this point in my view is whether this incident can amount to according the appellant a denial of a reasonable opportunity of being heard. Before resolving this contention one way or the other, it is important to give a little background of this incident. In the course of his testimony as DW1 on the 28/01/2019, the appellant stated that he had six recordings on his old LG phone of his conversations with the nominal complainant which tended to show that there was on amorous relationship between him and the nominal complainant. Specifically, these recordings were on the 07/10/2016, when the nominal complainant allegedly admitted writing a love letter to the appellant, 24/02/2017, when she allegedly apologised to the appellant for the statement she made at the Lugbe Police Station. The last two recordings of 02/03/2017 and 07/03/2017 were of calls by the appellant to the nominal complainant to find out what had happened and to discuss how they would approach their families with their intention to get

married. The call of 07/03/2017 was not conclusive as the nominal complainant said she could not talk because she was together with her aunty. This necessitated the calls of 09/03/2017 and 10/03/2017.
At the conclusion of his testimony on 28/01/2019, the appellant through his counsel applied for an adjournment to enable them play the contents of the phone. The matter was then adjourned to the 18/02/2019 for continuation of hearing. On the return date, rather than play the recordings as requested, the appellant’s counsel now sought to tender the telephone in evidence. The prosecuting counsel objected to this application on the grounds of non-compliance with Section 84 of the Evidence Act. Counsel urged the Court to reject the phone. At this stage the defence counsel withdrew the document and simultaneously applied for a short date to enable them comply with Section 84 of the Evidence Act. The prosecuting counsel is only on record as having objected to the application for adjournment, gave no reason for the objection and kept mum on the application to comply with Section 84 of the Evidence Act. The defence counsel simply stated in reaction as follows.

“We object to the application for adjournment.”
The learned trial judge gave a bench ruling thus:-
“Court:- RULING:
The application for adjournment made by the defence learned Counsel to enable him comply with the provisions of Section 84 of the Evidence Act with respect to electronic generate (sic) Evidence he sought to tender, in my view, is Belatered (sic) and clearly overreaching the prosecution. Learned Counsel, knowing that certain legal conditions ought to be met before the tendering of Evidence have not been met ought not to have applied to tender the document in evidence in the first place. Seeking adjournment, only after listening to the objection of the prosecution Counsel, in my view, is an afterthought which is designed to overreach the prosecution. Even handed justice is not for the defendant alone; the prosecution is also entitled to the same; and the Court must be seen to be fair to both sides. I must also recall that the defence sought adjournment of this suit, at the last adjourned date, solely for the demonstrating the telephone conversation that took place between the defendant and the norminal

complainant. In the circumstances I refused (sic) the application for adjournment. The defendant shall proceed further a scheduled.”
It is glaring on the face of this ruling that the learned trial judge has gone into the arena and is crying more than the bereaved!!! The prosecuting counsel never complained that the application was overreaching. It does not therefore lie in the mouth of the learned trial judge to say so. This is especially so as the learned trial Judge never stated how giving an accused an opportunity to defend himself in a serious criminal allegation can be overreaching to the prosecution. This is especially so as the alleged defence has the potential of being a complete defence (if believed by the trial Court) of the offence charged. I venture to hazard an opinion that this attitude of the trial judge in itself amounts to bias which can be an element of breach of fair hearing! Be that as it may by ARTICLE 7(1) (C) of the African Charter on Human and People’s Rights, (ACHPR) 1981, everyone charged with a criminal offence has the following minimum rights: (a) to have adequate time and facilities for the preparation of his

defence among two other rights which I find unnecessary to reproduce herein. The pivotal question therefore is whether the appellant was given adequate time and facility for his defence. Court defined reasonable time as such “length of time as may fairly, properly and reasonably be allowed or required, having regard to the nature of the act or duty or of the subject matter and to the attending circumstances”. Oguntade JSC as he then was, put it more succinctly in the case of PAM & ANOR V MOHAMMED (2008) 16 NWLR, PT 1112, 1 AT 48 when he held thus:
“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case before the Court gives its judgment”
See also MOHAMMED V OLAWUNMI & ORS (1990) 2 NWLR, PT 133, 458 AT 485, PARAS B-C and ZENITH PLASTICS INDUSTRIES LTD V SAMOTECH LTD (2018) LPELR – 44056 (SC).
It is obvious that the principle of fair hearing is fundamental and

must be observed by the Court, especially so in criminal cases where the liberty or life of the accused/appellant is at stake. In the instant case, granted that the learned trial judge had granted an adjournment prior to the date in question and at the instance of the appellant. But considering the fact that the tardiness in handling the matter is that of counsel, I find that one more adjournment sought by the appellant could not have affected the desperate haste with which the Court wanted to conclude the matter in any significant way. The Court has a responsibility in a criminal matter to facilitate an accused person to present his defence. I therefore hold that from all the surrounding circumstances of this case the refusal of the trial Court to grant the adjournment sought by appellant in this case amounts to a breach of his right to fair hearing. This renders the proceedings incompetent and liable to be set aside. This position is fortified by the failure of the learned trial judge to give a ruling to the application to tender or withdraw the LG phone from evidence. The learned trial judge was obliged to make a ruling on the admission of or withdrawal if

he refused the application to withdraw it by the appellant’s counsel. He cannot leave the matter hanging the manner he did.

The real crux of the matter in this case is whether the decision of the trial court was borne out of the evidence on record. As rightly set out by the learned trial judge the three ingredients of the offence of rape as charged are:
“1. A person commits the offence of rape if:-
(a) He or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else;
(b) The other person does not consent to the penetration; or
(c) The consent is obtained by force or means of threat or intimidation of any kind or by fear of harm or by means of false or fraudulent representation as to the nature of the act or the use of any substance or additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.”
There is no doubt that the evidence on record proves beyond reasonable doubt that there was sexual intercourse between the appellant and the nominal complainant. Sexual intercourse

between two consenting adults who are not married admittedly may be a moral wrong depending on the community or society. There is however a thin line that separates this moral wrong from the crime of rape and that is lack of consent. There is no consent when unusual force is used on the victim to subdue or overpower her to submission or where the victim is a minor under 14 years of age and in law incapable of giving consent. The contention of the appellant throughout the proceedings was that there was a love relationship between him and the nominal complainant. This evidence if established has the potential to completely alter the equation in the case at least as far as prove of the offence of rape was concerned. One of the essential elements of the offence of rape aside from penetration is absence of consent of the victim. In the case of OGUNBAYO V STATE (2007) 8 NWLR, PT 1035, 157, the Supreme Court in amplifying the importance of consent held that; “The consent of the victim is a complete defence to the offence.” In the instant case the evidence on record confirms that the victim is not a minor, being at least 19 years of age at the time of

her statement to the police. I have gone through Exhibit P4 which the learned trial judge relied heavily on as confessional statement to convict the appellant. For the purpose of emphasis I reproduce in part Exhibit P4:
“(In July 2016, I had sex with her). On their returning from Zimbabwe, I started making arrangement to leave my cousin house because I believed it was time for me to be on my own. In July 2016, I had sex with her in several occasions which I felt remorseful for such action ………….. I tried not to repeat it (the second time) that was shortly before I left my cousin’s house on August 2016. Later I heard from Lovina and my cousin that she left my cousin home in September, 2016. On January 2017 I was invited to Lugbe Police Station where I was told that Lovina made a statement that i raped her. On hearing this my cousin and her husband were disappointed and angry at me. I addited(sic) having sex with her. On February 24th, 2017 Lovina called me and was trying to apologise, asking if I was angry with her. I told her that I wasn’t angry and she promised to tell me everything concerning the whole case but couldn’t

due to insufficient airtime on her phone. Afterwards we continued talking on phone then I tried to plead with her and her family for a….. disscussion about the whole statement with truth and honesty. As at the time I had sex with her I did not meet here as a virgin to (best) the best of my knowledge and there was nobody at home except myself and Lovina in those occasions I never collected any blood sample from Lovina for any sort because I always make use of condom for protection against sexual transmitted disease and pregnancy. I did not give any drug after having sex with her. This is all I have to say for now”.
This is no doubt an admission of sexual intercourse with the nominal complainant. However, this without more cannot in my view translate to rape. Exhibit P4 is not suggestive of use of force or lack of consent. It can also not be taken as an admission of rape. Indeed, the apparent inference therefrom is that whatever sexual relationship that took place between the appellant and the nominal complainant may have been consensual. It is indeed curious that the learned trial judge relied heavily on Exhibit P4 in convicting the appellant by

relying on only some portions of the exhibit. He has to take the exhibit as a whole and if he does he can see quite clearly that it is not positive, unequivocal and does not admit of all the stated ingredients of the offence of rape. There is no other credible evidence on record that proves otherwise. It is logical then to hold that while Exhibit P4 may be a confessional statement in terms of admitting to having sexual intercourse with the prosecutrix/victim, it does not however admit to doing so without her consent. In other words, Exhibit P4 does not admit of all the ingredients of the offence. So strictly speaking it is not a confession to the crime charged. I find no other evidence on record that establishes this ingredient of the offence. I am not unmindful of the settled position of the law that an accused person can be convicted on his confessional statement alone; SALIU V THE STATE (2014) 12 NWLR, PT 1420, 65, JOHN V STATE (2019) LPELR – 46936 (SC) and KAMILA V STATE (2018) LPELR – 43603 (SC). But such confession must be one that is cogent, positive, direct, and unequivocal and establishes all the ingredients of the offence charged.

DOGO V. STATE (2013) 10 NWLR, PT 1361, 160, HASSAN V THE STATE (2001) 15 NWLR PT 735, 184, YESUFU V STATE (1976) 6 SC (REPRINT) 109 and ADAMU V STATE (2019) LPELR-46902(SC).

The trial Court also sought to rely on the evidence of the nominal complainant as sufficient evidence upon which it convicted the appellant. It is no longer a matter for debate that the Court can convict on the testimony of a sole witness. See OFORDIKE V THE STATE (2019) LPELR-46411(SC). However, in the earlier Supreme Court case of ONAFOWOKAN V STATE(1987) 3 NWLR PART 61, 538, sounded a note of warning per Oputa JSC thus:
“But if the evidence of that solitary witness is either incredible …….., or doubtful given all the surrounding circumstances then the appellate Court should hold either that the case was not proved beyond reasonable doubt or that it will be quite unsafe to convict on that evidence and either way the appeal should be allowed.”
I am guided by this sound wisdom. I have reflected very calmly on the evidence led by PW2, the victim. This was a virgin raped for the first time and she does not tell anybody. There is no evidence that she was

traumatized by the incident. It is not clear when exactly she was raped. In her evidence in chief, she said she was raped in July and told her aunt, PW2 about the rape in October when the aunt went to pick her which was also the time the aunt took her to NAPTIP to report the rape. However, the NAPTIP staff who attended to them testified as PW3. She stated that it was in August, 2017 when their officer received a call from Human Rights Radio informing them about a case of rape that was reported to the radio Station. DW1 in his evidence in chief stated that his brother in law, the erstwhile employer of the victim called him from the Lugbe Police Station sometimes in January to inform him that the victim and her aunt had reported him to the Police over nonpayment of the victim’s salary throughout the four years she worked with them.
From the evidence on record, this seems to be the real motive of the victim’s aunt. How long she went and what she did to get the money will remain only a conjecture to us. While we will not dwell on that, it is significant that going through the evidence as a whole, especially the testimonies of the victim and her aunt

(that is PW1 and PW2) there is something both incredible and doubtful about the allegation of rape that they made against the appellant. Again in the instant case, there are too many gaps and doubts in the testimony of the nominal complainant/victim. I find it unsafe to rely on it. Like the Supreme Court cautioned in ONAFOWOKAN V STATE (SUPRA), this is reason enough to allow the appeal. See also AFOLAHAN V STATE (2018) 8 NWLR, PT 1621, 223 and FRN V ABUBAKAR (2019) LPELR-46533(SC)
From my findings in this judgment, it is obvious where the pendulum would swing.

I did say that I would come to the 2nd sub issue on improper evaluation of the evidence later in this judgement. I find that the allegation of improper evaluation of evidence in a case is of no moment once there is sufficient evidence on record to support the conviction. That trial judge uses an inelegant style to evaluate the evidence on record fades into oblivion in that circumstance. Sadly, in the instant case it is not just about inelegant style or poor use of language. While it is correct like pointed out by learned counsel to the appellant that it does not amount to proper evaluation

to simply use the words ‘I believe’ ‘I don’t believe’. These words possess no magic wand either. The corollary to this I hasten to add is that by omitting to use the expression, “I evaluate” alone is not an indication that the evidence was not properly evaluated. Evaluation of evidence is simply a consideration of the totality of the evidence on an issue of fact in the circumstances of each case in order to determine whether the totality of the evidence supports a finding of fact which the party seeks that the trial Court should make. See MADAKI V CIROMA & ORS and EZEANI V FRN (2019) LPELR – 46800.

The crucial and determinant issue in this case to my mind is whether the evidence on record particularly Exhibit P4, the confessional statement was sufficient to ground the conviction of the appellant in the manner done by learned trial judge. My findings so far in this judgement answer this issue forcefully in the negative. The evidence is not cogent and unequivocal enough to ground a conviction. I am satisfied that the prosecution did not prove beyond reasonable doubt that the sexual intercourse that took

place between the appellant and the nominal complaint was without her consent and therefore amounts to rape. The whole story is fraught with doubt. There are more questions than answers. All these unanswered posers create serious doubt about the allegation of the complainant. I am obliged to resolve these doubts and gaps in favour of the accused/appellant. I do so.

I share in the outrage expressed by the learned trial judge concerning the unprecedented wave in the incident of rape and other forms of sexual violence in our society in recent times. This is a very sad commentary on the level of moral decadence in society. As sad and painful as this reality is, a conviction for rape cannot be confirmed on the basis of emotions and sentiments. Our Constitution, which is our ground norm still recognises the most heinous criminal innocent until proven guilty according to law. This is how it should be and it is perhaps the fulcrum of the old age legal adage that:
“It is better for one hundred guilty men to go scout free than
for one innocent man to be convicted.”

In sum and for all the reasons given in this

judgment I hold that this appeal succeeds and it is hereby allowed. Consequently, the decision of the learned trial judge delivered on the 8th day of October, 2019 is hereby set aside. The appellant, Emeka Akile is accordingly discharged and acquitted.

PETER OLABISI IGE, J.C.A.: I have read the lead judgment delivered by my learned brother PATRICIA AJUMA MAHMOUD. JCA in APPEAL NO. CA/A/1108C/2019.

I agree with the reasoning and conclusion therein.

FOLASADE AYODEJI OJO, J.C.A.: I have had the opportunity of reading in draft the lead judgment delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I completely agree with his Lordship that the Appellant is entitled to time to prepare his defence. This is a constitutionally right under Section 36(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria, (as which provides as follows: “36(6) Every person who is charged with a criminal offence shall be entitled to: (b)be given adequate time and for the preparation of his defence.” A person accused of commission of a criminal offence must

be given adequate time to prepare his defence. This constitutionally right certainty include the right to an adjournment to enable him prepare his defence. Anything short of this constitutes a breach of his fundamental right to fair hearing. See MADUKAEGBU V STATE (2018) NWLR (PT. 1627) 346; OKOYE V COMMISSIONER OF POLICE (2015) 17 NWLR (PT. 1488) 276; IBRAHIM V STATE (2018) 1 NWLR (PT.1600) 279; ETSAKO WEST LOCAL GOVERNMENT COUNCIL V. CHRISTOPHER (2014) NWLR (PT. 1426) 73.
In the instant appeal, the learned trial Judge refused to grant an adjournment sought by the Appellant to enable him comply with the provisions of Section 84 Of the Evidence Act. By this refusal, trial Court prevented the Appellant from demonstrating before it that there existed an amorous relationship between him and the nominal complainant prior to the incident. In the circumstance, it cannot be said that the Appellant had a fair trial. The refusal is a breach of the Appellant’s right to fair hearing as held by my learned brother. A breach of the right of fair hearing of an Accused Person vitiates the whole proceeding.

It is for the foregoing and the fuller reasons contained in the lead Judgment

that I also find merit in this appeal and it is accordingly allowed by me.

Appearances:

MR SUNDAY OMEKEDO For Appellant(s)

A. O. SHAIBU With him, MS J. I. MALIKI – ESONU
For Respondent(s)