YUSUF v. STATE
(2020)LCN/15827(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, September 24, 2020
CA/IB/328C/2019
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
KABIRU YUSUF APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
HOW TO PROOF A CASE IN A CRIMINAL MATTER
It is trite that the Prosecution in a criminal trial is required to prove its case against the accused beyond reasonable doubt. See – Section 135 (1) of the Evidence Act 2011. See also the following cases: –
– ABIRIFON VS STATE (SUPRA).
– NWATURUOCHA VS STATE (SUPRA) JIMI OLUKAYODE BADA, J.C.A.
ONUS OF PROOF IN A CRIMINAL MATTER
In the discharge of the onus of proof, there are three ways by which the Prosecution can prove the commission of a crime: –
(i) By Confessional Statement.
(ii) By evidence of eye witness or witnesses.
(iii) By circumstantial evidence where Confessional Statement is lacking.
See the following cases: –
– EMEKA VS STATE (2001) 6 SCNJ PAGE 259.
– GIRA VS STATE (1996) 4 SCNJ PAGE 95 AT 106.
– ABIRIFON VS STATE (SUPRA). JIMI OLUKAYODE BADA, J.C.A.
WHO IS A CHILD?
Section 1 (2) of the Child Rights Law of Ogun State 2006 defined a child as “a person who has not yet attained the age of 18years” JIMI OLUKAYODE BADA, J.C.A.
WHETHER A CHILD IS CAPABLE OF CONSENTING TO A SEXUAL INTERCOURSE
Section 32 of the Child Rights Law 2006 states that “No person shall have sexual intercourse with a child.”
In ADENIKE VS. STATE (2015) 7 NWLR PART 1458 PAGE 237 it was held among others that –
“a child is not capable of consenting to sexual intercourse.” JIMI OLUKAYODE BADA, J.C.A.
WHEN A COURT WILL CONVICT AN ACCUSED PERSON ON HIS CONFESSIONAL STATEMENT ALONE
It is trite law that a trial Court can rely solely on the confessional statement of an accused person to convict him.
In the case of AKPA VS. THE STATE (2008) 14 NWLR PART 437 PAGE 5477. It was held among others that:-
“In law, where an accused person confesses to a crime, in absence of an eye witness of killing he can be convicted on his confession alone once the confession is positive, direct and properly proved. See MILIA VS. THE STATE (1985) 3 NWLR PART 11 PAGE 190.
– ACHABUA VS. THE STATE (1976) 12 S.C. PAGE 63.
– THE STATE VS. IRONSI (1969) 1 NMLR PAGE 203,
– ATANO VS. ATTORNEY GENERAL BENDEL STATE (1988) 2 NWLR PART 75 PAGE 201.
– BATURE VS. THE STATE (1994) 1 NWLR PART 32 PAGE 267.” JIMI OLUKAYODE BADA, J.C.A.
WHAT IS A CONFNSSION?
A confession is an admission made by an accused person. See – Section 27 (1) of Evidence Act. The duty of the Court is to decide the weight to be attached to it as what is admitted needs no further proof. JIMI OLUKAYODE BADA, J.C.A.
LEGAL EFFECT OF A RETRACTED CONFESSIONAL STATEMENT
I am of the view that the retraction of a confessional statement will not adversely affect same once the Court is satisfied as to its truth. The Court can rely solely on it. See – NWACHUKWU VS. STATE (2007) 12 SCM PART 2 PAGE 447 AT 459. JIMI OLUKAYODE BADA, J.C.A.
WHAT IS A CONFESSIONAL STATEMENT?
A confessional statement is the evidence in Criminal Proceedings and once it is admitted in evidence, it becomes part of the prosecution’s case which the trial Court is bound to consider and rely upon in its Judgment. JIMI OLUKAYODE BADA, J.C.A.
DUTY OF COURT ON THE WEIGHT TO BE ATTACHED TO A CONFESSIONAL STATEMENT
In OSENI VS THE STATE (2012) 5 NWLR PART 1293 PAGE 351 it was held among others that the questions a Judge must ask himself on the weight to be attached to a Confessional Statement are as follows:-
“(1) Is there anything outside the Confession to show that it is true?
(2) Is it corroborated?
(3) Are relevant statement made in it of facts, true as far as they can be tested?
(4) Was the accused person one who had the opportunity of committing the offence?
(5) Is his confession possible?
(6) Is it consistent with other facts which has been ascertained and have been proved.”
I am of the view that the Confessional Statement of the Appellant i.e Exhibit “A” having been corroborated by the evidence of the Prosecution witnesses, have met the requirements of the law and the Appellant can be convicted based upon Exhibit “A” as done by the trial Court.
See ISMAIL VS STATE (2011) 17 NWLR PART 1277 PAGE 601; DAGAYYA VS STATE (2006) LPELR – 912 (SC), (2006) 2 SCM PAGE 33 AT 67. JIMI OLUKAYODE BADA, J.C.A.
WHETHER THE EVIDENCE OF INVESTIGATING POLICE OFFICERS CAN BE TERMED AS HEARSAY EVIDENCE
It is trite law that the evidence of investigating Police Officers cannot be termed as hearsay evidence because Police Officers are allowed to give evidence on what they saw, heard perceived and observed. See – OBALEKE VS FRN (2018) 7 SCM PAGE 133 AT 140. JIMI OLUKAYODE BADA, J.C.A.
POSITION OF LAW ON THE EVIDENCE ADDUCED BY AN INVESTIGATING POLICE OFFICER
The law is that evidence adduced by an Investigating Police Officer on what he saw or discovered In the course of his work or what was narrated to him by witnesses in the course of investigation constitutes positive and direct evidence. It is not hearsay evidence and it is such that a trial Court may take into consideration in arriving at its decision. See ANYASODOR VS. STATE (2018) 8 NWLR (PT. 1620) 197; OLAOYE VS. STATE (2018) 8 NWLR (PT. 1621) 281; AROGUNDADE VS. THE STATE (2009) 6 NWLR (PT. 1136) 165. FOLASADE AYODEJI OJO, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of Ogun State High Court of Justice, Sagamu Judicial Division in Charge No: HCS/IC/2016 – THE STATE VS KABIRU YUSUF delivered on the 3rd day of October, 2018 wherein the Appellant was convicted on a single count charge of having sexual intercourse with a child contrary to Section 32(2) of the Criminal Code Law of Ogun State 2006 and sentenced to life imprisonment.
Briefly the facts of this case was that on the 26th day of July 2013 at Ogere Remo, one Fatimo Nosiru (PW1) a 9 year old girl, was accosted while coming from Arabic School by the Appellant, who pretended he wanted to send her on errand. He took her to the bush, removed her cloths and had sexual intercourse with her in the bush while threatening her with snakes. She staggered back to her father who observed that she was bleeding from the vagina to her legs. The victim told her father what happened and the case was reported to the Police and the Victim was taken to the General Hospital where she was admitted and treated. The Appellant was arrested later.
The Appellant was charged to Court and at the conclusion of the trial, Judgment was delivered on 3rd of October, 2018 in which the Court held that the Prosecution has established the charge against the Appellant beyond reasonable doubt and he was sentenced to life imprisonment.
The Appellant who was miffed by the conviction appealed to this Court. The learned Counsel for the Appellant formulated three issues for the determination of the Appeal. The said issues are reproduced as follows:
“(1) Whether the decision of the trial Court was reasonable having regard to the weight of evidence adduced before it to have decided that the Prosecution has established the guilt of the accused person beyond reasonable doubt. (Distilled from Grounds 1 and 4).
(2) Whether the trial Court was right to have relied solely on the retracted confessional statement Exhibit “A” to convict and sentence the Appellant for an offence of having sexual intercourse with a child (Distilled from Ground 2)
(3) Whether the learned trial Judge was not in error by his failure to properly evaluate the evidence proffered by the Respondent and the Appellant before reaching a conclusion and convicted the Appellant for an offence of having sexual intercourse with a child (Distilled from Ground 3)”
On the other hand, the learned Counsel for the Respondent formulated a sole issue for the determination of the appeal. The said issue is reproduced as follows;-
“Whether the Prosecution has proved the offence of having sexual intercourse with a child against the Appellant beyond reasonable doubt having regard to the evidence before the Court.”
At the hearing of this appeal on 8th day of September 2020, learned Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High Court, Sagamu Division delivered on 3/10/2018.
The notice of appeal was filed on 17/12/2018. The record of appeal was transmitted on 5/9/2019 and deemed as properly transmitted on 7/7/2020.
The Appellant’s brief of argument was filed on 11/10/2019 and it was deemed as properly filed on 7/7/2020.
Learned Counsel for the Appellant adopted and relied on the said brief as his argument in urging that the appeal be allowed. He also urged that the Appellant be discharged and acquitted.
On the other hand, the learned Counsel for the Respondent referred to the Respondents brief filed on 21/5/2020 and deemed as properly filed and served on 7/7/2020.
She adopted and relied on the said Respondent’s brief of argument as her argument in urging that the appeal be dismissed.
I have carefully gone through the issues formulated for the determination of the appeal by Counsel for both parties and I am of the view that the sole issue formulated for the determination of the appeal on behalf of the Respondent subsumed the issues formulated for the determination of the appeal on behalf of the Appellant. I will therefore rely on the said sole issue.
ISSUE FOR THE DETERMINATION OF THE APPEAL:
“Whether the Prosecution has proved the offence of having sexual intercourse with a child against the Appellant beyond reasonable doubt having regard to the evidence before the Court.”
The learned Counsel for the Appellant submitted that the trial Judge was in error to have held that the Prosecution established the guilt of the accused person beyond reasonable doubt. He relied on Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 135(1) of the Evidence Act 2011 and the following cases:-
– UCHE WILLIAMS VS THE STATE (1992) 10 SCNJ PAGE 74 AT 75.
– KIM VS THE STATE (1992) 4 SCNJ 81 AT 84.
– DR. ODUNEYE VS THE STATE (2001)SCQR PAGE 1 AT PAGE 3.
– UBANGI VS THE STATE (2004) 1 MSJSC 92 AT 95.
– STATE VS OLADOTUN (2011) 10 NWLR PART 1256 PAGE 572.
It was submitted on behalf of the Appellant that the essential ingredients of the offence of having sexual intercourse with a child which must be proved beyond reasonable doubt by the Respondent in establishing the guilt of the Appellant are:
(a) Sexual intercourse has taken place
(b) That the victim was a child
(c) That the accused person was the man who committed the offence.
Counsel for the Appellant referred to the case of – OKA VS. STATE (2018) LPELR – 43914 (CA).
It was submitted that the unsworn testimony of a child PW1 and the extra-judicial statement Exhibit A credited to the Appellant failed to establish beyond reasonable doubt all the essential ingredients of the alleged offence.
The learned Counsel for the Appellant also submitted that the learned trial Judge did not carry out this Preliminary Investigation under Section 175 of the Evidence Act 2011 to ascertain the competence of PW1 i.e. a child of 12 years at the time she gave unsworn evidence.
He relied on the following cases:-
– DAGAYYA VS. THE STATE (2006) 7 NWLR PART 980 PAGE 637 AT 661 PARAGRAPHS E – H.
– IDI VS. STATE (2017) LPELR – 42587.
It was also submitted on behalf of the Appellant that the unsworn evidence of a child must be corroborated.
He relied on Section 209 (3) of the Evidence Act 2011
– OKON VS. STATE (1988) 19 NSCC VOL 1 PAGE 156.
– SHUABU ISA VS. KANO STATE (2016) 6 NWLR PAGE 243 AT 264 PARAGRAPHS F – G.
– OSHO VS. STATE (2012) 8 NWLR PART 1302 PAGE 243 AT 288 – 289.
– ABDULLAHI VS. THE STATE (2008) 17 NWLR PART 1115 PAGE 203 AT 224 PARAGRAPH C.
The case of – NWAEBONYI VS. THE STATE (1994) 5 SCNJ PAGE 86 which listed rules that a Court must apply to determine the weight to be attached to a retracted Confessional Statement was referred to.
The learned Counsel for the Appellant submitted that Exhibit “A” was not subjected to the tests listed in the case of – NWAEBONYI VS. THE STATE (SUPRA).
It was submitted on behalf of the Appellant that the non-tendering of the second statement taken by PW4 – Olasumbo Joash raises serious doubt as to the truth of Exhibit “A”.
Learned Counsel relied on Section 167 (d) of the Evidence Act 2011 and the following cases:-
– TSOKWA MOTORS NIG. LTD. VS. AWONIYI (1999) PART 586 PAGE 199 AT 207.
– OGUDO VS. STATE (2011) 12 SC PART 1 PAGE 71 AT 128 – 129 LINE 20.
It was also submitted by the learned Counsel for the Appellant that the learned trial Judge is wrong to have relied on Exhibit “A” i.e. the Confessional Statement of the Appellant.
He submitted further that a Court can convict on a retracted Confessional Statement of an accused where such Confessional Statement is found to be relevant, positive, true, unequivocal and consistent with other relevant facts outside the Confessional Statement.
He relied on the following cases:- BATURE VS. STATE (1994) 1 NWLR PART 320 PAGE 267 AT 283.
– FASINU VS. STATE (2016) 12 NWLR PART 1527 PAGE 414 AT 434 PARAGRAPHS B – F.
– LASISI VS. STATE (2013) 9 NWLR PART 1358 PAGE 74 AT 93 PARAGRAPHS G – H.
It was also submitted on behalf of the Appellant that the learned trial Judge failed to properly evaluate the evidence proffered by both the Appellant and Respondent before convicting the Appellant.
He finally urged that the issue be resolved in favour of the Appellant.
In her response, the learned Counsel for the Respondent submitted that the Prosecution in a criminal trial is required to prove its case against an accused beyond reasonable doubt. She relied on the following cases:-
– ABIRIFON VS STATE (2013) 9 SCM PAGE 1 AT 5.
– NWATURUOCHA VS STATE (2011) 12 SCM PART 2 PAGE 265 AT 269.
She referred to the evidence of PW1, PW2, PW3 and PW4 who all gave evidence as to how the Appellant had sexual intercourse with the victim.
Learned Counsel for the Respondent also referred to Exhibit “A” which is the Confessional Statement of the Appellant. She also referred to Exhibit “C” which is the Medical Report that revealed the extent of injuries sustained by the victim because of the sexual intercourse and the fact that her vagina was brutalized and hymen broken.
Learned Counsel for the Respondent urged this Court to hold that the Prosecution has satisfied the burden placed on them to prove beyond reasonable doubt that the Appellant had sexual intercourse with the victim.
She referred to the following cases:-
– OGUNBAYO VS THE STATE (2007) 1 NWLR PART 1035 PAGE 157 AT 174
– POSU VS THE STATE (2011) 3 NWLR PART 393 PAGE
RESOLUTION
It is trite that the Prosecution in a criminal trial is required to prove its case against the accused beyond reasonable doubt. See – Section 135 (1) of the Evidence Act 2011. See also the following cases:-
– ABIRIFON VS STATE (SUPRA).
– NWATURUOCHA VS STATE (SUPRA)
In the discharge of the onus of proof, there are three ways by which the Prosecution can prove the commission of a crime:-
(i) By Confessional Statement.
(ii) By evidence of eye witness or witnesses.
(iii) By circumstantial evidence where Confessional Statement is lacking.
See the following cases:-
– EMEKA VS STATE (2001) 6 SCNJ PAGE 259.
– GIRA VS STATE (1996) 4 SCNJ PAGE 95 AT 106.
– ABIRIFON VS STATE (SUPRA).
The Appellant in this case was convicted of the offence of having sexual intercourse with a child. In order for the Prosecution to succeed in a charge of having sexual intercourse with a child, the Prosecution must establish the following:-
(1) That the Appellant had sexual intercourse with the victim/prosecutrix.
(2) That the victim (Prosecutrix) is a child.
(3) That consent is not required.
In this case the learned trial Judge remarked as follows:-
“The witness being a child of 12 years does not understand the meaning of taking an Oath. Does not understand what happens to anyone that tells a lie. The witness can therefore not be sworn.”
In proof of the charge the Prosecution witnesses testified as follows:-
PW1 – not sworn. Speaks in Hausa language.
My name is Umi Nasir. I am called Fatima in the school. The name of my school is Little Scholar. I am 12 years old.
Yes, my other name is Fatima.
Yes, I know my address. I live at 3, Babalaja Street, Ogere.
No, I don’t know the accused person.
Yes, I have seen the accused person before.
Yes, I remember the 26/7/2013.
On Friday, I went to mosque for prayer. After the Friday prayer, We went to Mama Aziza’s shop to play.
The accused person now called me to send me on errand. I refused to go on errand. The accused person then pushed me into the bush. The accused person then said if I don’t cooperate a snake will bite me. The accused then removed my cloth and removed his clothes.
Laid me on the ground and the accused then slept with me.
The accused person slept with me. The accused person put his manhood in my female organ.
Then I started to bleed. The accused then brought me out of the bush and took me to my father’s shop.
On getting to my father’s house, my father asked why I was bleeding. The accused had said if I tell anyone I will be caned. When I told my father, my father took me to the hospital.
Cross examination by Mr. Awoyale.
Yes, I can say what brought me to Court.
I am in Court to state what happened between the accused person and I, Before the day of the incident, I did not know the accused person.
No, I did not go to the Jumat Mosque prayer with the accused person.
No, there was no one at the scene except the accused and I.
When the accused was having sex with me I was crying.
Yes, my father took me to the hospital on the very day of the incident.
Re –examination – NIL
PW2 – sworn on the holy Koran. States in Hausa language.
My name is Nasiru Adamu. I live at No. 3, Babalaja Street, Ogere Toll Gate, Ogere, Ogun State.
I am a business man.
Yes, I know the accused person on the case at hand.
On 26/7/13 after the Friday mosque prayer, when we got back. There is an office that belongs to the Head of Hausa. I am second in command to the Head of the Hausa whom we refer to as King of Hausa.
Then I saw the PW1 walking in a manner that arouse my suspicion. I then called her and asked her what happened. Fatima was actually staggering.
I am the father of the PW1 called Fatima. I then grabbed my daughter, but before I could even ask any question I saw that she was bleeding. I asked what happened but rather than respond she was crying.
She later said that a man called her as to send her errand when she was in the shop of Iya Asisa. She attends the school with the girl called Asisa.
When I saw blood, I also fainted and took me up, and went to the police station along with my daughter PW1, from where we were taken to General Hospital Iperu.
When I questioned my daughter (PW1) she said one man took her into a bush behind the trailer pack. She told me that when the man took her to the bush the man told her to pull her cloth and she did not the pulled off her cloth, and pull off his own cloth as well and laid on her.
She added that the man said if she refuses he will throw a snake at her.
That the man put saliva in his hand and inserted it in her vagina and had sex with her.
The accused person had sex with the PW1. It was Fatima that explained to me how the man had sex with her. It was the sight that I saw and the confirmation that the accused had sex with my daughter that made me to faint.
From there myself and Fatima were taken to the police station. It was from the police station that we went to the hospital.
At the police station everyone was surprised.
At the General Hospital, Iperu where we were taken to, even the nurse did not want to admit the PW1. Then one Female Doctor living in Sagamu, but working in Iperu, decided to assist us. She then called a male Doctor, and all other Doctors came around. The Doctors then took the PW1 to the examination room, and looked examined the girl.
They saw that she had been defiled. The Doctor then had to stitch her up and admitted her in Hospital for 4 days.
The PW1 told me that one day Haja Maidole did it to her. Then when we came back from the hospital, both myself and other members of the community started to search for the man called Dan Hajia Maidole. Then we found him where he was living at a place called Ungwa Rogo. There was a drama house in the Ungwa Rogo.
We met the relations of the man, and they were downloading a sound on the phone for the man.
Then we went to the man. And we told the man that the Dan Hajia Maidole is his son.
The accused person is the one called Kabiru Dan Hajia Maidole that had sex with my daughter.
He then ran away from the town entirely on Saturday. He ran away to Ibafo. But I know he will be apprehended. Then I went with the police to Ibafo. As the police packed at the trailer park Ibafo; then one man that is also a member of the Hausa community, called Malam Habu; went into the trailer pack, while I stayed outside.
Then the accused person with two (2) other friend came out of the bush.
Then as the police was about to grab him; he took to his heels.
People then pursued him and got him arrested.
They did not want anybody arrested from their community. Some of them took sticks thinking that maybe we were trying to kidnap the accused.
Then I said look at everyone around; also did we arrest. Why did he take to his heels if he has not done something wrong. He was then arrested and taken to Ogere Police Division.
PW3 – Sworn on the Holy Bible. States in English language.
My name is Sgt Ogunibi Olalekan. I am a Sgt with force No. 444336. I am attached to Warewa Division Arepo, Ogun State, after Ibafo, Ogun State.
At the time of the incident, I was attached to Ogere Divisional Headquarters.
Yes, I know the accused person.
Yes, I remember 2/8/13.
On that day, a case of defilement was referred to me for investigation. The case was reported by one Alhaji Adamu Nosiru – PW2.
The said PW2 came to the station accompanied by his daughter.
With the bad state of the complaint’s daughter, she was taken to the General Hospital.
What I mean by bad state is that the girl was bleeding. The girl’s name is Fatima Nasiru (PW1). She was taken to the hospital also accompanied by her father. She was admitted at the Hospital. We left the girl on admission while I return to the station with the complainant i.e. Alhaji Nasiru (PW2).
After taking the statement in English language, I visit the scene of crime with the PW2 for possible arrest of the accused person.
On getting to the scene of crime, I saw some blood stains on the ground not far from where the accused person alleged lured the prosecutrix (PW1) to. However to arrest the accused person arrested proved abortive because I was informed that the accused had relocated to Mowe.
We intensified the effort with the assistance of the PW2, a notable Hausa man in the company.
The accused person was arrested at Mowe; brought back to the station where I charged and cautioned him in English language.
The accused person was a well known person to a lot of police man at the toll gate.
He then gave me his statement without stress and was begging the PW2.
After I took the statement which he made in English language and which I recorded in same English language. I read it over to him in English language and he signed it as the maker and as correct.
I prepared a medical form and served on the Medical Practitioner to request for medical report.
The report was then issued to me. We then made our intense report and transferred the case to the State CID Eleweran for further investigation.
If I see the statement of the accused person I can identify it.
Yes, this is the statement of the accused person.
Miss Sonoiki – I seek to tender it.
Mr. Awoyale – No objection.
Court – Statement of the accused person dated 3/8/2013 is admitted and marked Exh. “A”.
(sgd)
Judge
PW4 – Sworn on Holy Bible. States in English language.
My name is Olasumbo Joash. I am a woman Inspector. Attached to the State CID Abeokuta; attached to the Anti-Human Traffic Unit, Oke Ilewo.
I remember the 7/8/13.
On the said date, I was on duty at the Anti-Human Traffic Office, Oke Ilewo when the case of defilement was transferred from Ogere Police Division and referred to the Anti-Human Traffic Unit for Investigation.
On receipt of the case, a team of police officer were detailed to investigate. These include –
– Woman DSP Racheal Lawal – team leader
– Sgt Adio Opebiyi
– Woman Inspector Olasumbo Joash, my humble self as the IPO.
I then obtain the statement of the victim who volunteered her statement in English language. The victim’s name is Fatima.
Yes, if I see the statement I obtained from the said Fatima I can identify it.
Yes, this is it. I have my name and signature on it.
Miss. Sonoiki – I seek to tender the statement of the victim as exhibit.
Mr. Awoyale – I object to its admissibility as same did not form part of the proof of evidence served on us.
We are just seeing the alleged statement for the first time. It is trite that an offence of this nature and all criminal trial before the High Court, proof of evidence must be served on the defence. I therefore urge the Court to reject the evidence.
Miss Sonoiki – We submit that there are plethora of authorities that information paper is just a guide. The said victim has testified in this case and her evidence already before the Court. The defence cannot be said to be caught unaware. The witness is the one that obtained the statement as the recorder. We urge the Court to admit it.
Reply: Mr. Awoyale – none
Court – the objection of Mr. Awoyale is on the ground that the document sought to be tendered was not served on the defence. As rightly submitted by Miss Sonoiki proof of evidence is a guide for the trial of the case. Even though the defence is entitled to be served with copies of all that the prosecution will be relying upon; however the fact remains that the witness in the box is the recorder of the statement. The maker has already testified, hence the admissibility is not affected. It is the weight to be attached that will be addressed later. The objection is therefore overruled. The statement made by Fatima Nasiru on 7/8/13 is admitted and marked Exh. B.
(sgd)
Judge
PW4 continues – I thereafter took the suspect to the scene of crime at Ogere toll gate.
And the accused then took the team of policeman to a nearby bush; where he stopped at a spot and pointed to the spot where the offence was committed.
I then asked the accused some questions as to how he took the victim to the bush and he said that he went to where she was playing with her friends and called her to send her on errands and she followed him.
I further asked the accused of what happened when he took her to the bush, and he said that he removed his shirt, laid it on the grass and asked the victim to remove her clothes which she refused. And that the victim wanted to run away, but he threatened her that if she tries to run, the snakes in the bush will bite her. The victim then agreed and he helped her to remove her clothes. And that the victim started to cry that her father will beat her but that he told the victim not to worry that he will give her money. That he then laid her on his shirt on the ground and had carnal knowledge of her. I then asked the accused for the reaction of the victim and he stated that the victim was crying.
That was all I did in the matter then I charged the case to Court.
“PW5 –Sworn on the Holy Bible. States in English language.
My name is Sokeye Elizabeth Oluwasola. I am a Medical Doctor by profession. I have been practicing for 11 years and about 4 months.
I am currently working at the Babcock University teaching Hospital as a resident Doctor with the Department of Community Medicine.
At the time of the incident for which I am now in Court between the year 2012 to 2014, I was working at General Hospital Iperu.
Yes, I can remember 26/7/13.
On the said 25th July7 2013, I was on duty, and close to the closing hours; we had a new doctor, employee by name Dr. Adekunle who has left the service and relocated to Canada. The Dr. Adekunle saw the little girl Fatima Nasiru; and after seeing the little girl and she was living with her father and mother. I met them along the corridor of the female ward.
I then enquired from Dr. Adekunle as to what was wrong with the girl he (Dr. Adekunle) observed. The Dr. Adekunle then informed me that she was violated i.e. a rape case.
I became interested in the case because I was the public Relations Officer with Medical Women Association of Nigeria Ogun State Chapter (MWA).
I then asked to speak with the girl, in the course of my speaking with the girl, I could read fright on her faces. With my experience as a Doctor, I have observed that Hausa woman have a way of concealing their emotions. Then I told Dr. Adekunle that the little girl is likely to be hiding pain. And I then said I will further examine her myself.
Then I took up her case, and I told the said Dr. Adekunle to stay with me while I examine her again.
I then examined her in a close by examination room, and I realized that she was bleeding from the vagina.
Then I asked if she was bleeding afresh or an old bleeding, I then moved the little girl to the 2nd stage room, where women who are in labour would normally be examined.
On examination with the Nurses on duty I saw the fresh blood was coming out from the uterus and her cervix area. I then inserted the pad in her vagina and I saw that the whole pad went straight into her vagina. This was unusual for a girl of 8 years.
I then told Dr. Adekunle that the girl would have been brought back to him in the middle of the night dead as a result of severe bleeding if I had not further examined her.
I examined further that there was no longer hymen; I also could feel that the vagina was turn ragged; hence the continuous bleeding.
I informed the Dr. Adekunle to put up a drip for the girl so that she does not go into shock.
I then ran out to call another senior colleague by name Dr. Okusanya. He came in and I requested for a second opinion.
Dr. Okusanya also re-examined the girl. He discovered that even the rectal wall was also turn. Being a senior Doctor and a gynecologist, i.e. Dr. Okusanya; he said the wall i.e. the vagina wall and the Rectal wall which he says has to be repaired serially.
We then set out to start repairing. I mean the said Dr. Okusanya and myself did the repair surgery.
We packed the vagina wall and tried to repair the vaginal wall. After repairing; we were surprised to bring out the pad we had used in packing her; but unfortunately the pad could no longer be brought out. So we had to remove the sutures again and bring out the pad.
So we decided to start with the Rectal area that was already turn also. The Rectal area being the anus.
We removed the pad; packed the rectum, used our instrument to hold the vaginal wall and suture it first.
Thereafter, we removed the pad from the rectum. We had to cut the pad into two to put in the vagina and then suture the Rectum. To do this we had to raise her leg over her body to get to her anus (rectum) to repair the rectal area.
However, because she was an exposed victim to an unknown HIV status person, we then had to place her on Anti Retroviral Drugs (ARV) for a whole month.
I then told her parents and also the police that whenever the accused person who was at large was apprehended that he needed to be screened for HIV to be able to place at what risk the child was.
After the suspect was apprehended I went to the police station with the testing kit but the police declined to allow me do the screening of the accused person. So I had to sit down with the parents to counsel them.
The child was on admission for 7 days.
On the discharge of the girl sometime in August, I issued a medical report.
Yes, if I see the medical report I can identify it.
Yes, this is it. This is my signature.
Miss Sonoiki – I seek to tender same as exhibit.
Mr. Awoyale – we have no objection.
Court – the Police Case request for Medical Treatment and Report signed on 02/08/13 and the Report on the Ogun State Hospital Management board letter head, also dated 02/08/13, are both admitted and marked Exhs C and C1 respectively.
(sgd)
Judge
PW5 continues – I later had to counsel the parents to ensure that the parents allow the patient to grow up properly to come out of the trauma, and not to send her off for marriage at early age due to the cultural background of the Hausas; hence I had to do all the counseling.”
A careful perusal of the testimonies of PW1, PW2, PW3, PW4 and PW5 set out above would reveal that the Appellant had sexual intercourse with PW1 (the victim).
The evidence of PW1 a 12 year old girl who was about 9 years old at the time of the incident gave a graphic detail of how the Appellant put his manhood into her vagina. Her testimony was unchallenged unshakened and uncontroverted under cross examination.
Furthermore the testimony of “PW3” and “PW4” set out above showed how PW2 the father of the victim i.e. PW1 brought her to the Police Station. The Appellant was later arrested.
The testimony of PW3 was corroborated by PW4 who investigated the matter at State CID. PW4 testified that the Appellant went with her to the scene of crime and pointed at the spot where he had sexual intercourse with the PW1 i.e. the Victim.
The testimony of the PW4 corroborated the evidence of the victim/prosecutrix i.e.PW1.
The Prosecution also tendered in Evidence Exhibit “C” i.e. the Medical Report which revealed that PW1 was brutalized and her hymen broken as a result of the sexual intercourse the Appellant had with PW1 the victim.
There is also Exhibit “A” which is the Confessional Statement of the Appellant tendered before the trial Court.
The Appellant gave a graphic description of how he had sexual intercourse with PW1. The statement Exhibit “A” corroborated the testimony of PW1 the victim.
In view of the foregoing it is clear that the testimony of PW1, PW2, PW3, PW4 and PW5 and the Exhibits placed before the trial Court has proved beyond reasonable doubt that the Appellant had sexual intercourse with the PW1 i.e. the victim/prosecutrix.
The PW1 testified that the Appellant inserted his manhood into her vagina. Sexual intercourse is deemed completed upon proof of penetration of the penis into the vagina. The authorities have shown that the slightest penetration is sufficient to establish the act of sexual intercourse.
See the following cases:-
– POSU VS THE STATE (SUPRA)
– OGUNBAYO VS THE STATE (SUPRA).
It is not in dispute that the Victim (PW1) who was 9 years old at the time of the incidence and 12years old when she testified in Court was a child when the Appellant had sexual intercourse with her. Section 1 (2) of the Child Rights Law of Ogun State 2006 defined a child as “a person who has not yet attained the age of 18years” therefore the Victim (PW1)could not have consented to the Sexual Act.
Section 32 of the Child Rights Law 2006 states that “No person shall have sexual intercourse with a child.”
In ADENIKE VS. STATE (2015) 7 NWLR PART 1458 PAGE 237 it was held among others that –
“a child is not capable of consenting to sexual intercourse.”
It is also on record that the Appellant made a confessional statement in this case, i.e. Exhibit “A”. It is trite law that a trial Court can rely solely on the confessional statement of an accused person to convict him.
In the case of AKPA VS. THE STATE (2008) 14 NWLR PART 437 PAGE 5477. It was held among others that:-
“In law, where an accused person confesses to a crime, in absence of an eye witness of killing he can be convicted on his confession alone once the confession is positive, direct and properly proved. See MILIA VS. THE STATE (1985) 3 NWLR PART 11 PAGE 190.
– ACHABUA VS. THE STATE (1976) 12 S.C. PAGE 63.
– THE STATE VS. IRONSI (1969) 1 NMLR PAGE 203,
– ATANO VS. ATTORNEY GENERAL BENDEL STATE (1988) 2 NWLR PART 75 PAGE 201.
– BATURE VS. THE STATE (1994) 1 NWLR PART 32 PAGE 267.”
A confession is an admission made by an accused person. See – Section 27 (1) of Evidence Act. The duty of the Court is to decide the weight to be attached to it as what is admitted needs no further proof.
There was no objection as to the voluntariness of the confessional statement when it was being made, the trial Judge was therefore right to have admitted it as Exhibit “A”.
But the Appellant while giving evidence retracted Exhibit “A” and stated that he did not make any statement to police nor did he sign any.
I am of the view that the retraction of a confessional statement will not adversely affect same once the Court is satisfied as to its truth. The Court can rely solely on it. See – NWACHUKWU VS. STATE (2007) 12 SCM PART 2 PAGE 447 AT 459.
A confessional statement is the evidence in Criminal Proceedings and once it is admitted in evidence, it becomes part of the prosecution’s case which the trial Court is bound to consider and rely upon in its Judgment.
In order to drive home the point in this case, it is appropriate at this juncture to reproduce the confessional statement of the Appellant i.e. Exhibit “A” which is as follows:-
“I Kabiru Yussuf: am a native of Igabi Local Govt. Kaduna State, presently a vulcanizer by profession, it is almost 8 months now that I have being at former toll gate Ogere Remo Ogun State. On the very day of 26th July 2013 I saw this little girl at Rahnamiya Garage toll gate, when I called her to come and help me buy something. She responded to me, by coming close to me at said place, As at this period when I sighted her I believed may be she is there to urinate because it was only her that I saw when I called her attention and took her to a bushy place where they always slaughter ram. I discovered that the place is not convenient and took her to a place where some trailer park and abandoned which is bushy. And instruct her to remove her cloth which she comply and I equally removed mine and have sex with her at that place. I did not have snake but I only used that word to scare her, to enable me have access to sex her. I have never seen this girl before, that was the first time I will see her. I hereby regretted my action to this little girl.”
(sgd) 3/8/13.
As I stated earlier in this Judgment the Confessional Statement of the Appellant i.e. Exhibit “A” which is set out above was admitted in evidence without objection.
The trial Judge held in its Judgment as follows:-
“It is worthy to reiterate that the accused person on the date of arraignment pleaded guilty to the charge however the Court entered a plea of not guilty considering the nature of the charge, and this Court not being a Court of summary trial. I held that the retraction from the statement Exhibit “A” is an afterthought”.
I agree entirely with the learned trial Judge that the retraction of the Confessional Statement Exhibit “A” is an afterthought.
In OSENI VS THE STATE (2012) 5 NWLR PART 1293 PAGE 351 it was held among others that the questions a Judge must ask himself on the weight to be attached to a Confessional Statement are as follows:-
“(1) Is there anything outside the Confession to show that it is true?
(2) Is it corroborated?
(3) Are relevant statement made in it of facts, true as far as they can be tested?
(4) Was the accused person one who had the opportunity of committing the offence?
(5) Is his confession possible?
(6) Is it consistent with other facts which has been ascertained and have been proved.”
I am of the view that the Confessional Statement of the Appellant i.e Exhibit “A” having been corroborated by the evidence of the Prosecution witnesses, have met the requirements of the law and the Appellant can be convicted based upon Exhibit “A” as done by the trial Court.
See ISMAIL VS STATE (2011) 17 NWLR PART 1277 PAGE 601; DAGAYYA VS STATE (2006) LPELR – 912 (SC), (2006) 2 SCM PAGE 33 AT 67.
Concerning issue of identification of the Appellant raised by Appellant’s Counsel, I am of the view that, where there is an eye witness account that fixes the accused to the scene of crime, the identity of the accused person is said to have been established. The evidence of PW1 and PW2 earlier set out in this Judgment fixed the Appellant to the scene of crime.
Identification parade is not a sine qua non where there is good and cogent evidence as in this case linking the Appellant to the scene of the crime. Exhibit “A” fixed the Appellant to the scene of crime, he admitted in Exhibit “A” being at the scene of crime and he also gave graphic details of his involvement in the crime. PW4 also testified that the Appellant took her to the scene of crime and pointed to the spot where he had sexual intercourse with the PW1, i.e the victim. That piece of evidence was not denied by the Appellant at the trial Court. The Appellant in Exhibit “A” identified himself as the person who had sexual intercourse with the victim i.e PW1. See ADEYEMI VS THE STATE (2014) 13 NWLR PART 1423 PAGE 132.
– MADAGWA VS THE STATE (1988) 5 NWLR PART 92 PAGE 61.
– IKEMSON VS THE STATE (1989) 3 NWLR PART 110 PAGE 455 AT 478
– UKPABI VS THE STATE (2004) 11 NWLR PART 884 PAGE 439 AT 442.
It was contended on behalf of the Appellant that Prosecution witnesses gave hearsay evidence. But that contention in my view is not correct. This is because PW1 the victim gave eye witness account of what Appellant did to her i.e had sexual intercourse with her, PW2 gave evidence as to what he saw i.e his daughter bleeding as a result of the sexual intercourse the Appellant had with PW1 i.e the victim. PW3 and PW4 are the investigating Police Officers i.e Divisional Police and State CID respectively. They testified as to the investigation they conducted in the matter.
It is trite law that the evidence of investigating Police Officers cannot be termed as hearsay evidence because Police Officers are allowed to give evidence on what they saw, heard perceived and observed. See – OBALEKE VS FRN (2018) 7 SCM PAGE 133 AT 140. PW5 is the Medical Doctor that treated PW1 the victim, and also part of the two man surgery team that operated the victim.
I am of the view that the PW5 an expert saved the life of PW1 by carrying out surgical operation on her, therefore the evidence of such an expert cannot be regarded as hearsay evidence. Exhibit “C” is the Medical Report dated 2/8/2013 and Exhibit “C1” is the Ogun State Hospitals Management Board Letter dated 2/8/2013 signed by PW5.
Concerning the unsworn evidence of PW1, Section 209 (1) of the Evidence Act 2011 permits Court to receive unsworn evidence of Children.
In this case the PW1 under cross examination remained unshaken at the trial Court and SECTION 209 (3) OF THE EVIDENCE ACT 2011 provides thus:-
“A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of subsection (1) of this Section and given on behalf of the Prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant”.
In this case the testimony of the PW1 on how she was brutally assaulted by the Appellant is the same with what was contained in Exhibit “A” and this was corroborated by the testimonies of PW3, PW4, PW5 and also Exhibits “C” and “C1” which showed the degree of damage caused by the sexual intercourse the Appellant had with PW1 the victim.
Consequent upon the foregoing, I am of the view that-
(1) The learned trial Judge was right to have relied on Exhibit “A” and the testimonies of all the Prosecution witnesses.
(2) That the Prosecution proved the offence of having sexual intercourse with a child (PW1) against the Appellant beyond reasonable doubt.
(3) The Appellant was properly identified and fixed to the scene of crime and he had the opportunity of committing the crime.
In view of the foregoing, the sole issue in this appeal is resolved in favour of the Respondent and against the Appellant.
This appeal therefore lacked merit and it is hereby dismissed.
The Judgment of the trial Court in Charge NO – HCS/IC/2016 – THE STATE VS. KABIRU YUSUF delivered on the 3rd day of October 2018 wherein the Appellant was convicted on a single count charge of having sexual intercourse with a child contrary to Section 32 (2) of the Criminal Code Law of Ogun State 2006 and sentenced to life imprisonment is hereby affirmed.
Appeal Dismissed.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother gave me the priviIege to read in advance. the draft of the judgment just delivered.
In the instant case, there is no reasonable doubt heated by the facts and law to show that the Appellant did not commit the offence. Indeed, the testimony of PW1 (victim of the crime) gave a consistent, uncontroverted and uncontradicted evidence that the Appellant raped her. The testimonies of PW2, PW5 and exhibit “C” gave undiluted credibility to the testimony of PW1. There is no doubt that the Appellant committed the offence of rape, for which be was charged, tried and convicted by the Court below.
It is for the above reasons and the detailed reasons contained in the lead judgment that I agree that this appeal lacks merit. It is hereby dismissed.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading before now the lead Judgment in this appeal delivered by my learned brother, JIMI OLUKAYODE BADA, JCA. I agree with him that this appeal lacks merit and should be dismissed.
PW4 at the trial before the lower Court was the Investigating Police Officer. He testified that the Appellant took him to the locus criminis where he pointed to the spot he had carnal knowledge of the Prosecutrix. His evidence is positive and direct.
The law is that evidence adduced by an Investigating Police Officer on what he saw or discovered In the course of his work or what was narrated to him by witnesses in the course of investigation constitutes positive and direct evidence. It is not hearsay evidence and it is such that a trial Court may take into consideration in arriving at its decision. See ANYASODOR VS. STATE (2018) 8 NWLR (PT. 1620) 197; OLAOYE VS. STATE (2018) 8 NWLR (PT. 1621) 281; AROGUNDADE VS. THE STATE (2009) 6 NWLR (PT. 1136) 165.
The evidence of PW4 was not denied by the Appellant and it corroborates that of PW1 the victim of the offence.
I am also of the considered view that the evidence before the lower Court was sufficient to establish the offence of rape against the Appellant.
It is for the foregoing and the fuller reasons given by my learned brother in the lead Judgment that I find this appeal unmeritorious and it is also dismissed by me.
Appearances:
MR. J.T. OGUNNIYI For Appellant(s)
MISS O. A. SONOIKI Chief State Counsel with her is Miss A.Y. Sonariwo Senior State Counsel, both of Ogun State Ministry of Justice For Respondent(s)
