KIWO v. STATE
(2020) LCN/4915(SC)
In The Supreme Court
On Friday, January 17, 2020
SC.473/2013
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Between
ISMAILA KIWO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT AN APPELLANT CAN RAISE A FRESH ISSUE IN THE APPEAL COURT BY WAY OF RE-HEARING ONLY
An appellant cannot raise and argue a fresh issue in this Court of appeal being by way of re-hearing only, without leave of Court first sought and granted. The necessity for leave sought and granted to the appellant to raise fresh issue on appeal is the fact that an appellate Court is not in a position to determine the correctness or otherwise of an issue not raised and determined at the Court below per Ngwuta JSC, Adeosun v. The Governor, Ekiti State (2012) All FWLR (Pt. 619) 1044, (2012) 4 NWLR (Pt. 1291) 581, (2012) LPELR – 7843 (SC). Of course, it is indisputable that an appeal is an invitation to a higher Court to find out whether, on proper consideration of the facts and the applicable law, the Court below arrived at a correct decision. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 211, (1989) 20 NSCC (Pt. 3) 64, (1989) 7 SC (Pt. II) 1; Iweka v. S.C.O.A. (Nig.) Ltd (2000) FWLR (Pt. 15) 2524, (2000) 3 SC 21 at 31;Adeosun v. Governor, Ekiti State (supra). PER EKO, J.S.C.
WHETHER OR NOT THE SUPREME COURT CAN INTERFERE WITH THE CONCURRENT FINDINGS OF FACT BY THE LOWER COURT
The settled principle of law in appellate Court practice is that the apex Court will not lightly interfere with concurrent findings of fact and will not, unless under special circumstances, hear arguments seeking to disturb concurrent findings of fact. To demonstrate the antiquity of this judicial policy, I hereby call in aid Ometa v. Numa (1934) 11 NLR 18; Serbeh v. Karikari (1939) 5 WACA 34. Since concurrent findings of fact prima facie entitle the respondent to a judgment dismissing the appeal, the apex Court will decline to review the evidence for the third time unless the appellant proffers or establishes some circumstances that would justify the departure from that practice: Nanka-Bruce v. Gbeke, PC No. 56 of 1948 (Ghana). In Okosi v. The State (1989) 1 NWLR (Pt. 100) 642, the rationale given for this is that the appellate Court is not in a good position to assess the credibility of witnesses. The only Court that has that unique advantage is the trial Court that at the trial proceedings, has the privilege of watching, hearing and observing the witness(es) testify in open Court. PER EKO, J.S.C.
THE ESSENCE OF CORROBORATION
The essence or 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 credible. What corroboration does in effect is to give support or strength to the assertion of the prosecution. Therefore in this instance the corroborative evidence of PW2, PW4 and PW5 and Exhibits P1 and PW2 are such that confirm in material particular not only that an offence has been committed but that it was appellant that committed it. I rely on Gabriel v. State (2010) 6 NWLR (Pt. 1190) 280 at 290; Ogunbayo v. The State (2007) All FWLR (Pt. 365) 408, (2007) 8 NWLR (Pt. 1035) 157 at 188. PER PETER-ODILI, J.S.C.
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): On 29 November, 2012, the High Court of Kwara State (S.D. Kawu, J) convicted the appellant for raping one Suliat Ibrahim (f), being an offence punishable under Section 283 of the Penal Code Law of Kwara State. The offence was said to have been committed on 11 May, 2010.
The appellant contested his conviction at the Court of Appeal (the lower Court) on his notice of appeal filed on 21 November, 2013 containing five (5) grounds of appeal. The appeal was heard and determined on four (4) issues formulated from the said 5 grounds of appeal. The appellant, both at the trial Court and the lower Court was represented by counsel.
On 16 July, 2013, the appeal was dismissed by the lower Court in the judgment of Tijjani Abubakar JCA unanimously concurred by the other two justices on the panel. Still aggrieved, the appellant has further appealed to this Court vide the notice of appeal filed on 26 July, 2013, which on his application filed on 31 January, 2018, was regularised on 24 October, 2019. The notice of appeal has 6 grounds of appeal.
The appellant’s counsel, Ayodeji O. Omotosho, Esq., has formulated
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3 issues from the said 6 grounds of appeal. The issues are –
3i. Whether the evidence of PW3 and PW4 were not inadmissible, having been taken in contravention of Section 209(1) of the Evidence Act, whereupon the said evidence ought not to have been relied upon by the Court below (and the trial Court before it) in finding that the respondent had proved the guilt of the appellant beyond reasonable doubt for the offence of rape punishable under Section 283 of the Penal Code? – (Distilled from ground 4 of the notice of appeal). The appellant shall, at the hearing apply to the honourable Court for leave to raise this issue as a new point on appeal, not previously taken in the Courts below.
In the alternative
3ii. Whether there was cogent, credible and sufficient evidence/unequivocal corroborative on record which proved beyond reasonable doubt, that the appellant had, in fact, had unlawful sexual intercourse with one Suliat Ibrahim (PW3), such as to ground the conviction of the appellant for the crime of rape punishable under Section 283 of the Penal Code? (Distilled from grounds 1, 3 and 5 of the notice of appeal).
3iii. Whether PW3 and PW4’s
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testimonies of identity of the appellant as the perpetrator of the alleged rape of PW3 were spontaneous, extemporaneous, unrehearsed and reliable to justify the reliance on same to convict the appellant for the crime of rape punishable under Section 283 of the Penal Code? (Distilled from ground 2 of the notice of appeal).
The present issue 1 stridently, albeit vociferously, canvassed and argued before this Court, was not once canvassed at either the trial Court or the lower Court. It is a fresh issue, in the circumstance. An appellant cannot raise and argue a fresh issue in this Court of appeal being by way of re-hearing only, without leave of Court first sought and granted. The necessity for leave sought and granted to the appellant to raise fresh issue on appeal is the fact that an appellate Court is not in a position to determine the correctness or otherwise of an issue not raised and determined at the Court below per Ngwuta JSC, Adeosun v. The Governor, Ekiti State (2012) All FWLR (Pt. 619) 1044, (2012) 4 NWLR (Pt. 1291) 581, (2012) LPELR – 7843 (SC). Of course, it is indisputable that an appeal is an invitation to a higher Court to find out whether,
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on proper consideration of the facts and the applicable law, the Court below arrived at a correct decision. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 211, (1989) 20 NSCC (Pt. 3) 64, (1989) 7 SC (Pt. II) 1; Iweka v. S.C.O.A. (Nig.) Ltd (2000) FWLR (Pt. 15) 2524, (2000) 3 SC 21 at 31;Adeosun v. Governor, Ekiti State (supra). A fresh issue raised and argued by an appellant without leave first sought and granted is incompetent and liable to be struck out and/or discountenanced.
I notice from the record that at pages 31 and 37 when the PW3 testified the appellant was represented by one Mr. Adesoko of counsel. Ditto when also the PW4 testified at pages 32 and 33. At the trial Court, no issue was raised, as it is being presently raised, that being children who had not attained the age of 14 years they could not deliver sworn testimonies by virtue of Section 209(1) of the Evidence Act, 2011. Neither the prosecutor nor the PW3 and PW4 complained that their right to testify under Section 209(1) of the Evidence Act, 2011, unsworn was violated. They seemed to acquiesce in it apparently as a veracity booster of the truth, in the fear of God, of the matter of their testimonies.
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The appellant, under issue 1, gave notice that he would seek leave to raise and argue the admitted fresh issue. He did not in actuality obtain the leave. He also did not move the Court for such indulgence either at the hearing of the appeal or before.
The ulterior purpose of this fresh issue is no doubt underscored by the concluding submission in paragraph 4.1.18 of the appellant’s briefs –
that where (sic) the evidence of PW3 who is the alleged victim is expunged, the foundation of the charge against the appellant would fall, any corroborative evidence, no matter how cogent, would be useless as there would be no evidence to corroborate. The appellant would, therefore, be entitled to an acquittal in respect of the offence for which he was convicted.
And that also is the reason and necessity for the issue to be raised in this Court in accordance with the due process of the law. This apart, it appears to me that the serious challenge to the facts recorded at page 33 of the record of appeal also requires an affidavit challenging the record. A duly certified record of appeal is presumed, to be correct. The appellant, in
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paragraph 4.1.19 of the appellant’s brief attacking the correctness of the record, submits:
“As regards PW4, the record shows that when she was asked who was older “between her and PW4”, her response was: “PW4 is older than me” (see page 33 of the record). The Court of Appeal, in rejecting the argument of the appellant that the testimony of PW4 was improperly admitted stated thus –
‘PW4 was asked who (sic) older between her and PW4, she said PW4 was older. Evidence of age of PW4 is not on record, and there is only one PW4 before the trial Court.” Issue 1 raises a fresh issue, which has not been properly brought before this Court – no leave having first been sought and granted for the appellant to bring forth the issue to this Court. Moreso, the issue can only succeed on proper challenge to the fact recorded in the duly certified records of appeal. There is no such affidavit challenging the record. The issue is incompetent.
The complaint under the incompetent issue 1 is that PW3 and PW4, being minors, are not obligated to have testified an oath as they did. Appellant contends,
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accordingly, that their testimonies on oath violated the provisions of Section 209(1) Evidence Act, 2011. The record shows clearly that at the trial Court, when they both testified, the appellant represented by a counsel did not whimper an objection. Both the appellant and his counsel seemed to acquiesce and condone PW3 and PW4 testifying on oath. Apart from a ground of appeal not being the appropriate procedure for belated objection, this conduct of the defence at the trial also raises issue of estoppel by conduct under Section 169 of the Evidence Act, 2011. All these in my view add up to render issue 1 improper and incompetent. I hereby discountenance it.
It appears the incompetent issue 1 is the main plank from which the appellant sprang his attack on the decision of the lower Court. Issue 2, raising some challenge to concurrent findings of fact on which the conviction of the appellant predicated, that is – that without PW3’s evidence there was no proof beyond reasonable doubt of the alleged rape, was raised in alternative to the incompetent issue 1. Issues 2 and 3 are specific attacks on the use of the evidence of the PW3 and PW4 by the two
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Courts below. That is, they challenge the concurrent findings of fact predicated on those pieces of evidence on which the conviction of the appellant and the affirmation of the same were premised.
The PW3 and PW4 delivered very simple and unconvoluted testimonies. The PW3 and her friend, PW4, both school girls in Junior Secondary School were returning from school on 11 May, 2010 when they ran into the appellant’s ambush. The appellant, masking his face with some powder sprang from the bush. He was wielding a scaring and scary cutlass. He held both girls hostage momentarily under his physical control and threatened to hurt them if ever they attempted to run. He took both girls to the bush. There, he selected the PW3 for his illicit and violent nonconsensual sexual intercourse. He repeatedly, in the process, threatened to hurt her with the cutlass if she dared to shout. The PW3 testified further that the appellant brought her back to the road and fled after he had forcefully had the illicit sexual intercourse with her; as a result of which her school uniform was blood stained. From there the two girls, fearfully walked home and narrated the incident
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to PW3’s father. A report was made to the police. The PW4, who previously knew the appellant, led the police officers to arrest him. This strong evidence of identification was neither challenged nor disputed.
The PW4, maintaining that she did not actually watch the appellant have sexual intercourse (the raping act) with the PW3, corroborated every other aspect of the PW4’s narration in materia particular. The PW3 and PW4 were cross-examined by one O. J. Adesoko of counsel. Their evidence was, each, unscathed by the cross-examination.
These days lawyers, in their bid to make the required number of appearances at the appellate Courts entitling them to apply for the conferment of the privilege of the rank of Senior Advocate, have resorted to bothering this Court with most trivial cases. This case appears to be of these trivials.
Notwithstanding the concurrent findings of fact that the appellant committed the alleged rape on the PW3, and the two Courts below emphasising that no reasonable doubt exists that the appellant committed the raped charged; the appellant’s counsel is still submitting that the prosecution, by dint of
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Section 138 of the Evidence Act must prove the guilt of the appellant beyond reasonable doubt. He reiterated the point that there must be no reasonable doubt in the mind of any person observing the proceedings that the accused person was indeed guilty of the offence charged; and that where there is such doubt, as when the prosecution’s case is shaky, the accused would be entitled to have such doubt resolved in his favour. As if he was addressing a pack of uninformed villagers in a village auditorium. The appellant’s counsel, Mr. Omotosho, after some circolocuity, without actually showing satisfactorily how the concurrent findings of fact had occasioned any miscarriage of justice to the appellant, sermonized wishfully that “the learned trial judge and the Court of Appeal had to come to the conclusion that there was no sufficient corroborative evidence of the testimony of PW3. The two Courts below did exactly that as the appellant’s counsel admonished. They found concurrently, as a fact, that Exhibit P2, the medical report issued by the PW5 together with the testimonies of the PW1, PW2, PW4 and the medical evidence of the PW5 had sufficiently corroborated the testimony of the PW3.
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At the apex Court, that is this Court, the appellant’s brief should be demonstrating how the intermediate Court committed some error in its review of the trial Court’s decision and that by the said review error, the appellant had suffered serious miscarriage of justice. In other words, an appeal at the apex Court is not intended that the evidence at the trial should be evaluated for the third or more times. That is, at this level of appeal, the appellant must only concern himself demonstrating how the intermediate Court misconceived his case at the trial Court below it. Having so satisfactorily demonstrated, the appellant then invites this Court to interfere with the decision of the intermediate Court.
The settled principle of law in appellate Court practice is that the apex Court will not lightly interfere with concurrent findings of fact and will not, unless under special circumstances, hear arguments seeking to disturb concurrent findings of fact. To demonstrate the antiquity of this judicial policy, I hereby call in aid Ometa v. Numa (1934) 11 NLR 18; Serbeh v. Karikari (1939) 5 WACA 34.
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Since concurrent findings of fact prima facie entitle the respondent to a judgment dismissing the appeal, the apex Court will decline to review the evidence for the third time unless the appellant proffers or establishes some circumstances that would justify the departure from that practice: Nanka-Bruce v. Gbeke, PC No. 56 of 1948 (Ghana). In Okosi v. The State (1989) 1 NWLR (Pt. 100) 642, the rationale given for this is that the appellate Court is not in a good position to assess the credibility of witnesses. The only Court that has that unique advantage is the trial Court that at the trial proceedings, has the privilege of watching, hearing and observing the witness(es) testify in open Court.
The appellant was convicted for raping the PW3, a school girl returning from school that he violently seized from the road and had forceful non-consensual sexual intercourse with. His identity was not in dispute. Both PW3 and PW4 gave unequivocal and undiscredited evidence on this. The lower Court, affirming the appellant’s conviction, found that the “identification of the accused was spontaneous and natural” and that the evidence of the PW3 and PW4 on
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this “was extemporaneous and unrehearsed”. I cannot, in the circumstance, fault the lower Court’s conclusion that “in such an extemporaneous identification of an accused person, the Court would not be wrong in relying on the evidence of the PW4. SeeIlodigwe v. The State (2012) All FWLR (Pt. 654) 1, (2012) 18 NWLR (Pt. 1331) 1”.
The undiscredited evidence of PW3 established forceful and violent rape of a minor without her consent. She bled and pathetically her uniform was blood stained. She was, no doubt, humiliated by this unwholesome assault. She gave evidence of the sexual intercourse the appellant had with her, and her evidence of the appellant’s penile penetration of her was corroborated by Exhibits P1, P2 and PW5. The PW4, who though did not witness the “raping act”, testified to the violent seizure of the PW3 by the appellant into the bush where the “raping act”, the PW3 testified to, took place. These surrounding circumstances give credence to and corroboration of the PW3’s evidence on “the raping act”. They are consistent with the appellant’s guilt. I agree, as
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submitted by the appellant’s counsel, that the corroborating evidence must be an independent piece of evidence which connects the accused person to the alleged offence. It is a piece of evidence that implicates him and thus confirms in some material particular that not only was an offence committed, but also that it was the accused person who committed the alleged offence: Ekalagu v. The Queen (1960) SCNLR 488; Iko v. The State (2001) FWLR (Pt. 68) 1161, (2001) 14 NWLR (Pt. 732) 221. I also agree with the appellant’s counsel that a corroborative evidence must be flawless, indubitable, credible and undiscredited Sambo v. The State (1993) 6 NWLR (Pt. 300) 399; Igbine v. The State (1997) 9 NWLR (Pt. 519) 101. But it is not enough to so sloganise. Every appellant has a burden (of establishing in substantial way the error in the judgment appealed) to discharge in order to earn a favourable judgment. The appellant herein has not been able to discredit any piece of evidence, either of the PW3 or other pieces of evidence that corroborate her evidence.
I am satisfied from the concurrent findings of fact by the two Courts below, that the
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appellant was not wrongly convicted for the alleged rape on the totality of the evidence proffered by the prosecution at his trial. He had suffered no miscarriage of justice thereby.
The appeal is hereby dismissed in its entirety as I have not seen nor have I been shown any good cause to disturb the appellant’s conviction affirmed by the lower Court on 16 July, 2013 in the appeal No. CA/IL/C18/2013. The said judgment is hereby affirmed.
Appeal dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with the judgment just delivered by my learned brother, Ejembi Eko JSC and to place on record the support I have in the reasonings from which the decision came about, I shall make some comments.
This is an appeal lodged by the appellant who was accused person at the trial Court presided over by Kawu J (as he then was) against the judgment of the Court of Appeal, or Court below or lower Court delivered on 16 July, 2013 at the Ilorin Division of the Court below, coram: Paul Adamu Galinje JCA (as he then was), Obande F. Ogbuinya, Tijjani Abubakar JJCA.
The fuller background facts are well set out in the lead judgment and I shall not repeat
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them save for when the occasion warrants a reference thereto.
On 24 October, 2019, date of hearing, learned counsel for the appellant, A. O. Omotoso Esq., adopted the brief of argument filed on 21 March, 2014 and deemed filed on 24 October, 2019 and a reply brief filed on 26 October, 2019.
In the brief of argument, learned counsel distilled a single issue with two alternative issues for determination which are as follows:-
i. Whether the evidence of PW3 and PW4 were not inadmissible, having been taken in contravention of Section 209(1) of the Evidence Act, whereupon said evidence ought not to have been relied upon by the Court below (and the trial Court before it) in finding that the respondent had proved the guilt of the appellant beyond reasonable doubt for the offence of rape punishable under Section 283 of the Penal Code? (Distilled from ground 4 of the notice of appeal). The appellant shall at the hearing apply to the honourable Court for leave to raise this issue as a new point on appeal, not previously taken in the Courts below.
In the alternative
ii. Whether there was cogent, credible and sufficient evidence/unequivocal
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corroborative evidence on record which proved beyond reasonable doubt, that the appellant had, in fact, had unlawful sexual intercourse with one Suliat Ibrahim (PW3), such as to ground the conviction of the appellant for the crime of rape punishable under Section 283 of the Penal Code. (Distilled from grounds 1, 3 and 5 of the notice of appeal).
Learned counsel for the respondent, J. A. Mumini Esq., DPP of the Ministry of Justice (MOJ) Kwara State adopted the brief of argument filed on 16 November, 2017 and deemed filed on 24 October, 2019 and distilled three issues for determination, thus:-
1. Whether the evidence of PW3 and PW4 were taken in contravention of Section 209 of the Evidence Act and were therefore inadmissible. (This relates to ground four of the appellant’s notice of appeal).
2. Whether the evidence upon which the conviction and sentence of the appellant were affirmed by the Court below was corroborated, cogent, credible and sufficient. (This relates to grounds 1, 3 and 5 of the appellant’s notice of appeal).
3. Whether the evidence of identity by PW3 and PW4 upon which the appellant was affirmed as the perpetrator of
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the rape of PW3 were spontaneous, extemporaneous, unrehearsed and reliable. (This relates to ground 2 of the appellant’s notice of appeal).
The issues as crafted by the respondent seem simpler for use and apt in the circumstance and I shall utilise them for my purpose in the determination of this appeal.
Issues 1, 2 and 3:
1. Whether the evidence of PW3 and PW4 were taken in contravention of Section 209 of the Evidence Act and were therefore inadmissible.
2. Whether the evidence upon which the conviction and sentence of the appellant were affirmed by the Court below was corroborated, cogent, credible and sufficient.
3. Whether the evidence of identity by PW3 and PW4 upon which the appellant was affirmed as the perpetrator of the rape of PW3 were spontaneous, extemporaneous, unrehearsed and reliable.
Learned counsel for the appellant contended that the evidence of the alleged victim who testified as PW3 and that of PW4 were taken on oath in contravention of Section 209(1) of the Evidence Act.
That both Courts below did not avert their minds to the fact that as at the time of the trial of the case, the Evidence Act, 2011
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had come into force and the Court of Appeal erroneously relied on the provisions of the repealed Evidence Act in respect of the unsworn evidence of a child.
He stated on that the failure of the trial judge to carry out the preliminary inquiry envisaged by Sections 155, 180 and 183 of the Evidence Act before taking the evidence of a child cannot be treated as a mere irregularity which can be waived but rather a fundamental defect which rendered the evidence worthless and so no conviction could be based on it. He cited Sambo v. State (1993) 7 SCNJ (Pt. 1) 128, (1993) 6 NWLR (Pt. 300) 399 at 429.
That when that evidence of PW3, the alleged victim is expunged, the foundation of the charge against the appellant would fail and any corroborative evidence would be useless as there would be no evidence to corroborate it.
Learned counsel for the appellant contended that the evidence presented by the prosecution at the trial Court upon which the appellant was convicted and relied on by the Court below to affirm the earlier decision fell short of the standard required to prove the guilt of the appellant beyond reasonable doubt for the offence of rape
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punishable under Section 283 of the Penal Code. He cited Alonge v. I G. P. (1959) 4 FSC 203, (1959) SCNLR 516; Ogba v. State (1992) 2 NWLR (Pt. 222) 164, (1992) 2 SCNJ (Pt. I) 106, (1992) LPELR-2273 etc.
It was further submitted that the circumstances at play and relied on by both Courts below are not compelling, cogent and capable of producing the inference that only the accused/appellant committed the offence.
That Exhibit P1, the medical report should not have been relied upon by the two Courts below, being a discredited and unreliable document. He cited Opayemi v. State (1985) 2 NWLR (Pt. 5) 85, (1985) 2 NSCC 291, (1985) 6 SC 347 etc.
Learned counsel for the appellant stated that there was incorrectness in the identification of the appellant which produced a weakness in the case of the prosecution which doubt should inure in favour of the appellant. He relied on Ukpabi v. State (2004) All FWLR (Pt. 218) 814, (2004) 11 NLWR (Pt. 884) 439 at 456, (2004) 6 SCNJ 112, (2004) LPELR-3346, (2004) 34 WRN 133, (2004) 7 SC 189, (2004) 6/7 SC 27; Eyisi v. State (2000) 12 SCNJ 104, (2000) 15 NWLR (Pt. 691) 555, (2000) 12 SC 24, (2000) 4 NSCQR 60, (2001) FWLR (Pt. 35) 750, (2001) 8 WRN 1 etc.
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In response, learned counsel for the respondent stated that the learned trial judge was right to have allowed PW3 (prosecutrix) and PW4 to give evidence on oath within the ambit of the Evidence Act and the exception created by Section 209(1) of the same Act did not apply since it has to do with unsworn evidence of a child.
The learned DPP contended that the evidence of PW5 and the medical report Exhibit P2 put the issue of penetration to rest and the two Courts below were right to apply the evidence. He cited Igri v. State (2012) 16 NWLR (Pt. 1327) 522 at 532.
That the corroborative evidence of PW2, PW4 and PW5 and Exhibits P1 and P2 are corroborative evidence confirming in material particular not only that the offence was committed but that it was appellant who committed it. He cited Gabriel v. The State (2010) 6 NWLR (Pt. 1190) 280 at 290; Ogunbayo v. The State (2007) All FWLR (Pt. 365) 408, (2007) 8 NWLR (Pt. 1035) 157 at 188.
It was submitted that PW4 had no difficulty in identifying the appellant as the man who took her sister (PW3) into the bush and raped her. He cited Osuagwu v. The State
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(2003) All FWLR (Pt. 672) 1605, (2013) 5 NWLR (Pt. 1349) 381 – 382.
The stance of the appellant is that the concurrent findings of the two Courts below should be upset as exceptional circumstances are present for this Court to disturb those findings in favour of the appellant.
The respondent with opposing views contend that there is no basis for the call for the interference of this Court on the concurrent findings of the Courts below as the prosecution proved its case beyond reasonable doubt.
The appellant founded his position on Section 209 of the Evidence Act which he contended was not complied with. The Section 209(1) provides thus:-
“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 sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.”
In this instance, PW3 and PW4 were put on oath that is, they were sworn before they testified. Indeed, interpreting the provisions of
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the statute which are words that are clear, plain, and unambiguous, the Court has no option than to interpret them in those simple terms which translates to the fact that the provisions of Section 209, Evidence Act has to do with the unsworn testimony of a child and not for our present purposes where the learned trial judge had the testimonies of PW3 and PW4 who are minors on oath. The procedure adopted by the Court of trial is within the purview of only a trial Court which has the exclusivity of seeing the witnesses first hand and in a position as no other Court especially the appellate of taking the route of passage in the method adopted. See Saraki v. Federal Republic of Nigeria (2016) All FWLR (Pt. 836) 395, (2016) 3 NWLR (Pt. 1500) 531 at 555 – 556, (2016) LPELR 852/2015.
On the issue whether the evidence on which the conviction and sentence rested was corroborated, cogent, credible and sufficient, the learned trial judge had no difficulty in finding that the testimonies of PW1, PW2, PW4 and PW5 were corroborative of that of PW3 and this is seen at pages 51 – 52 of the record thus:-
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“I am satisfied from the foregoing:
(1) That the evidence of PW4 sufficiently corroborates the evidence of PW3 that the accused threatened and forcibly took PW3 into the bush in the afternoon of 11 May, 2010.
(2) The evidence of PW2 to whom the report of the incident was made immediately after the incident, that both PW3 and PW4 were crying and that of PW1 that he saw PW3
(3) Exhibit P1 which is the report of an immediate examination of PW3 at a medical centre states that her vagina was wet and full of sperm with slight bleeding.
These pieces of evidence corroborate the evidence of PW3 that the accused whom she knew before, forcibly had sexual intercourse with her and that she was bleeding. Also, the evidence of PW5 and the report he issued on PW3 admitted as Exhibit 2, states that there was forceful penile penetration of the vagina of PW3 and that a case of rape could not be ruled out sufficiently corroborates the testimony of PW3 that the accused has carnal knowledge of her without her consent.”
The Court of Appeal going along with those findings stated at page 121 of the record, thus:-
“PW5 and Exhibits P1 and PW2 established penile penetration, PW3 and PW4 traced the
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penile penetration to appellant, the evidence of PW5 and PW4 established sufficient and equivocal corroboration as to the commission of the offence and unrehearsed identification of the appellant as the owner of the offence.”
The essence or 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 credible. What corroboration does in effect is to give support or strength to the assertion of the prosecution. Therefore in this instance the corroborative evidence of PW2, PW4 and PW5 and Exhibits P1 and PW2 are such that confirm in material particular not only that an offence has been committed but that it was appellant that committed it. I rely on Gabriel v. State (2010) 6 NWLR (Pt. 1190) 280 at 290; Ogunbayo v. The State (2007) All FWLR (Pt. 365) 408, (2007) 8 NWLR (Pt. 1035) 157 at 188.
Taking a step backwards into the trial Court, the PW3 (prosecutrix) stated thus:-
“… He ordered me to lie down and remove my pant. He asked me not to shout or he would cut me. The accused forcefully had sexual
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intercourse with me. I wanted to shout but the accused held me by the throat …”
She had also said:
“I know the accused person before he raped me. He used to come and buy cigarettes from us.”
These pieces of evidence of PW3 were corroborated by her sister, PW4 when she said thus:
“I knew the accused person before the incident because he used to purchase cigarettes from us.”
PW4 had also stated unequivocally that on that day of incident and at the scene of crime, the appellant had grabbed PW3 and had sexual intercourse with her by force.
PW5 had conducted a physical examination of PW3 and produced a medical report Exhibit P2 which conclusively brought a cogent, direct and straightforward evidence, sufficient to back up in full measure the evidence of the victim, PW3.
Exhibit P1 was also of the same mould as Exhibits PW2 and in P1, the learned trial judge. exercised his discretion in admitting it without its being tendered through the maker.
The appellant had sought to impugn the evidence gotten through PW2, PW4 as they are relations of PW3, the prosecutrix.
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The Supreme Court on the subject matter concerning what the Court should do with tainted witnesses or evidence of witnesses who are related. Thus, in Akalonu v. The State (2002) FWLR (Pt. 114) 536, (2002) 6 SC 107, 1, (2002) 12 MJSC 128, where a similar argument was pressed on, this Court, Kutigi JSC (as he then was) observed and held thus:-
“Blood relationship of the witness and the deceased will not by itself alone make the witness tainted or to be regarded as having some purpose of their own to serve in respect of the offence charged. (See Ishola v. The State (1978) 9 – 10 SC 81). It is very clear to me from the record that by no stretch of imagination could either PW1 or PW4 be regarded as an accomplice in the murder of the deceased. They were merely eye witnesses of the gruesome incident. I therefore find no substance in issue 1. I resolve it against the applicant and hold that PW1 and PW4 are not tainted witnesses.” (Italics for emphasis)
The Court below at page 121 of the record state thus:
“… by tradition and modern events people keep company within certain defined circles of friends or relations, like the instant case, both PW3 and PW4
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attended same school and tragedy struck on their way home, the law must not insist that a stranger totally unrelated to the victim and PW4 must be available to offer corroboration, what is necessary for the Court to do in the circumstance is to satisfy itself that the evidence is credible and therefore reliable. It is not enough for an appellant or accused seeking to discredit the evidence of a witness just to flash the issue of being tainted witness just because a witness is related to the victim without any concrete support to such assertion. See Ilodigiwe v. State (supra).”
In the prevailing circumstances of this case, there cannot be called for an identification parade as the appellant was well known to the prosecutrix (PW3) and PW2, PW4 and his identity was not shrouded in doubt and the incident was in daylight. The Court below despatched any concerns in that regard thus:-
“From the evidence of PW3 and PW4, identification of the accused was spontaneous and natural, the evidence of identity of the accused by PW3 and PW4 as extemporaneous and unrehearsed, both witnesses knew the accused before the incident and PW4 picked him among
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several other people when she accompanied the police to arrest him. She pointed at him because she knew him, and the accused in his own testimony said he is well known. In such an extemporaneous identification of an accused person, the Court would not be wrong in relying on the evidence of PW4. See Ilodigwe v. State (2012) All FWLR (Pt. 654) 1, (2012) 18 NWLR (Pt. 1331) 1 page 9. Certainly, it will not be improper to put the allegation of rape at the doorstep of the accused.”
There are no discrepancies or contradictions in the testimonies of PW3 and PW4 serious enough to be taken as material to dent the prosecution’s case.
Indeed, the findings and conclusions of the two Courts below are unassailable and this Court has no business to interfere. See Oguntayo v. Adelaja (2009) All FWLR (Pt. 495) 1626, (2009) 15 NWLR (Pt. 1163) 150 ratio 163; Osuagwu v. The State (2013) All FWLR (Pt. 672) 1605, (2013) 5 NWLR (Pt. 1349) 381 – 382.
In conclusion, this appeal has no line to hang on as it lacks merit. I must state that it is unfortunate, the slap on the wrist by way of the 4 year sentence in a crime so heinous which this Court is helpless to do anything about.
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From the foregoing and the better reasoning in the lead judgment, I too dismiss this appeal.
I abide by the consequential orders made.
MUSA DATTIJO MUHAMMAD, J.S.C.: My learned brother, Ejembi Eko JSC had allowed me a preview of his lead judgment just delivered. I agree with his Lordship’s reasoning and conclusion therein that the appeal is bereft of merit and that it be dismissed.
The extant issue on which the appeal is sought determined dwells on the evaluation of the evidence led by the two Courts leading to their concurrent findings that the appellant is guilty as charged.
The appellant insists that evidence to sustain the charge for rape punishable under Section 283 of the Penal Code does not abound and that both Courts have erred in their findings to the contrary. I disagree.
Appellant has failed to demonstrate that the concurrent findings of the two Courts pertaining his guilt are perverse. Accordingly, the findings must persist. See Ukaegbu & Ors. v. Ugoji & Ors (1991) LPELR – 3338 (SC) and Sunday v. State (2017) LPELR – 42259 (SC).
It is for the foregoing and the fuller reasons
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outlined in the lead judgment that I also dismiss the appeal and abide by the consequential orders in the lead judgment.
JOHN INYANG OKORO, J.S.C.: I am in complete agreement with the lead judgment delivered by my learned brother, Ejembi Eko JSC, and to place on record that support, I shall make a few comments.
This is an appeal against the judgment of the Court of Appeal, Ilorin Division, delivered on 16 July, 2013 wherein the Court below dismissed the appellant’s appeal and affirmed the decision of the learned trial judge (S.D. Kawu, J). The appellant not being satisfied with the said judgment approached this Court vide his notice of appeal filed on 31 January, 2018 but regularised on 24 October, 2019. He has posed 3 questions for determination, to wit:-
i. Whether the evidence of PW3 and PW4 were not inadmissible, having been taken in contravention of Section 209(1) of the Evidence Act, whereupon the said evidence ought not to have been relied upon by the Court below (and the trial Court before it) in finding that the respondent had proved the guilt of the appellant beyond reasonable doubt for the offence of rape punishable under
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Section 283 of the Penal Code? (Distilled from ground 4 of the notice of appeal). The appellant shall, at the hearing apply to the honourable Court for leave to raise this issue as a new point of appeal, not previously taken in the Courts below.
In the alternative
ii. Whether there was cogent, credible and sufficient evidence/unequivocal corroborative evidence on record which proved beyond reasonable doubt, that the appellant had, in fact, and unlawful sexual intercourse with one Suliat Ibrahim (PW3), such as to ground the conviction of the appellant for the crime of rape punishable under Section 283 of the Penal Code? (Distilled from grounds 1, 3 and 5 of the notice of appeal).
iii. Whether PW3 and PW4’s testimonies of identity of the appellant as the perpetrator of the alleged rape of PW3 were spontaneous, extemporaneous, unrehearsed and reliable to testify the reliance on same to convict the appellant for the crime of rape punishable under Section 283 of the Penal Code? Distilled from ground 2 of the notice of appeal.
It is instructive to note firstly, that issue 1 raise above by appellant’s counsel is a fresh issue. It was never
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argued at either the trial Court or the Court below, thus, leave of this Court must first be sought and obtained by the appellant’s counsel before he can raise and argued his issue 1 before this Court. It follows therefore that failure to seek and obtain the leave of this Court before arguing the fresh issue would render the issue incompetent. See Njoku v. State (2013) All FWLR (Pt. 689) 1072, (2013) 2 NWLR (Pt. 1319) 548 at 564; Uzodinma v. Izunaso (No. 2) (2010) Vol. 5 (Pt. 1) MJSC 27, (2011) 17 NWLR (Pt. 1275) 30, (2011) 1 MJSC Vol. 5 (Pt. 1) 27.
It is also worthy of note that the appellant had given notice of his intention to seek leave of this Court to raise his issue 1, same being a fresh point. However, he did not move the Court to grant him such leave during the hearing of the appeal. Leave not having been granted, renders the appellant’s issue 1 incompetent and accordingly struck out.
The facts of the case leading to this appeal have already been reproduced in the lead judgment and I shall not repeat the exercise. What I shall consider is that it does appear to me that the case of the appellant in this appeal is not whether he is
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innocent and wrongly convicted of the offence for which the two lower Courts have found him liable but whether in view of the provision of Section 209(1) of the Evidence Act, the two lower Courts were right to have relied on the testimony of PW3 to convict him. The appellant has made heavy weather of the inappropriateness of the testimonies of PW3 and PW4 in the light of Section 209(1) of the Evidence Act. It is on record that during the trial, the appellant, who was represented by counsel, took time to cross-examine both PW3 and PW4. I hold the view that the right forum for the appellant to have raised an objection to the testimonies of PW3 and PW4 was at the trial Court. It is now too late to complain at this stage. To my mind, the appellant’s complaint, albeit incompetently raised as issue 1, is an afterthought consideration which cannot avail the appellant. See Pius v. State (2016) 9 NWLR (Pt. 1517) 341 per Ogunbiyi JSC at page 372; See also Olue & Ors. v. Enenwali & Ors. (1976) 2 SC 23.
In the instant appeal, the evidence of rape of a girl under fourteen years of age is overwhelming against the appellant. The constituents of the offence
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as provided in Section 283 of the Penal Code are evident. More interestingly, the appellant was spontaneously identified as the culprit notwithstanding the powder he used to mask his face. It is trite that when the evidence against an accused is spontaneous and natural, the Court would not be wrong to act on such identification. See Ilodigwe v. State (2012) All FWLR (Pt. 654) 1, (2012) 18 NWLR (Pt. 1331) 1; Anyanisu v. State (1986) 5 NWLR (Pt. 45) 612.
With the foregoing few words of mine and particularly on the expanded reasoning advanced by my learned brother, Ejembi Eko JSC, I too dismiss this appeal for lacking in merit. The appellant’s issue one which is the main plank of this appeal, having been struck out, I find that the appellant has been unable to convince this Court that he has suffered any miscarriage of justice from the concurrent findings of the two lower Courts to warrant the interference of this Court. The concurrent findings of the two lower Courts are accordingly confirmed by me.
Appeal dismissed.
UWANI MUSA ABBA AJI, J.S.C.: I had the advantage of reading before now, the judgment rendered by my learned brother, Ejembi
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Eko JSC, I am in entire agreement with the reasoning therein and the conclusion arrived at that this appeal lacks merit and deserves to be dismissed.
The appellant was convicted for raping one Suliat Ibrahim. The PW3, being the victim of rape, with her friend, both secondary school girls, were returning from school on 11 May, 2010, when the appellant ambushed them with a powder-masked face and wielded a cutlass to incapacitate them. Taking them to the bush, he selected PW3 and forced her into having carnal knowledge with him. That after the illicit act, he brought her back to the road with the threat not to divulge the evil act by him. She had blood stained uniform. They reported this to PW3’s father who reported same to the police. By identification, the appellant was arrested, tried and convicted as charged.
The appellant’s formulated issues are:
1. Whether the evidence of PW3 and PW4 were not inadmissible, having been taken in contravention of Section 209(1) of the Evidence Act, whereupon the said evidence ought not to have been relied upon by the Court below (and the trial Court before it) in finding that the respondent had proved
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the guilt of the appellant beyond reasonable doubt for the offence of rape punishable under Section 283 of the Penal Code. (The appellant shall, at the hearing apply to the honourable Court, for leave to raise this issue as a new point on appeal, not previously taken in the Courts below).
In the alternative
2. Whether there was cogent, credible and sufficient evidence/unequivocal evidence/corroborative corroboration on record which proved beyond reasonable doubt, that the appellant had, in fact, and unlawful sexual intercourse with one Suliat Ibrahim (PW3), such as to ground the conviction of the appellant for the crime of rape punishable under Section 283 of the Penal Code?
3. Whether PW3 and PW4’s testimonies of identity of the appellant as the perpetrator of the alleged rape of PW3 were spontaneous, extemporaneous, unrehearsed and reliable to testify the reliance on same to convict the appellant for the crime of rape punishable under Section 283 of the Penal Code?
On the record, it is shown that the appellant did not obtain the leave of this Court to raise this fresh issue on appeal. It is also an elementary principle that an
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appellate Court will not allow a party to raise a fresh issue on appeal that was not raised at the trial Court, except where such an issue involves substantial points of law, substantive or procedural, and this must be allowed to prevent an obvious miscarriage of justice.
In the same vein, an appellate Court before which a new point is sought to be canvassed will refuse to grant leave to do so where the fresh point raised introduces a new line of defence completely different from the issues fought by the parties in the Court below. An appellant will also not be allowed to raise on appeal, a fresh point or question, which was not raised or tried or considered by the trial Court, particularly where to raise such a point or question will require fresh or additional evidence to be adduced. See per Augie JSC in Awusa v. Nigerian Army (2018) LPELR – 44377 (SC).
Besides, when the minors testified, the appellant being represented by counsel did not wail an objection before the trial Court that the procedure or the rights of the minors was breached. There is therefore acquiescence and waiver that cannot
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form an issue herein as same is belated and overtaken.
This being the main issue and plank of the appellant, it is needless to considered the other issues in the alternative since they are bound to collapse as a pack of cards and have no strings attached to hold them. Moreover, I have not seen any reason to tamper with the concurrent finding of facts by the 2 Courts below on the guilt of the appellant to the offence charged.
The appellant’s appeal must therefore fail and is hereby dismissed.
Appeal dismissed.
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Appearances:
AYODEJI O. OMOTOSHO, ESQ., WITH HIM, O. OKORO, ESQ. and M.E. EGWURUBE, ESQ. For Appellant(s)
JIMOH ADEBIMPE MUMINI, ESQ., DPP KWARA STATE, WITH HIM, ISSA ZAKARI, SSC KWARA STATE For Respondent(s)
