HALADU v. FRN
(2022)LCN/16772(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, February 08, 2022
CA/ABJ/CR/785/2021
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
DAUDA SANI HALADU APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
It is the bounden duty of the Prosecution under the statute and the Constitution to prove or establish the guilt of the Defendant/accused beyond reasonable doubt. The Prosecution must establish the elements or ingredients constituting the offence for which the accused is charged. The Defendant enjoys the presumption of innocence and as such no onus lies on the Defendant to establish his innocence. Conversely when the Prosecution establishes the ingredients of offence charged then evidential onus is on the Defendant to cast doubt on the case of the Prosecution. See Section 135(1) (2) and (3) of the Evidence Act which provides:-
“135(1) The commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the defendant.”
This must be read along with Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended which says:-
“36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” PER IGE, J.C.A.
WHETHER OR NOT THE ONUS OF PROVING REASONABLE DOUBT IN THE EVIDENCE OF THE PROSECUTION CAN SHIFT TO THE ACCUSED PERSON
However, as stated earlier the onus of proving reasonable doubt in the evidence of the prosecution will shift on an accused or Defendant in criminal case once the pieces of evidence proffered by the prosecution’s witnesses establishes or prove all the essential ingredients of the offence(s) for which the accused or the Defendant is charged. See:-
1. IJEOMA ANYASODOR V THE STATE (2018) 8 NWLR (PT 1620) 107 AT 122 G – C per SANUSI, JSC who said:-
“It is trite law that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. See Section 138(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 2004 (as amended).
See also the cases of Duru v. The State (1993) 3 NWLR (Pt. 281) 290, Amadi v. Federal Republic of Nigeria (2008) 12 SC (Pt. 111) 55; (2008) 18 NWLR (Pt. 1119) 259 and Abdullahi v. State (2008) 5-6 SC (Pt. 1) 1; (2008) 17 NWLR (Pt. 1115) 203. The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore does not shift. This is borne out from the fact that our Constitutions had entrenched adequate provisions to the effect that an accused person is always presumed innocent until he was otherwise proved to have committed that offence. Therefore, once the prosecution succeeded in proving the elements or ingredients of the offence or offences, the burden thereupon, shifts to the accused person to prove that he was not responsible in committing the offence(s) charged. If he succeeds in doing so, the trial Court then must acquit the accused person promptly.” PER IGE, J.C.A.
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Federal Capital Territory, Abuja (the trial Court) delivered on the 8th day of July, 2021. The Appellant herein was charged to the Court on a one count charge of rape, contrary to Section 1(2) of the Violence Against Persons (Prohibition) Act, 2015.
The Appellant was convicted and sentenced to a term of 12 years imprisonment without option of fine.
The Appellant was arraigned on the 11th of February, 2017 and he pleaded not guilty and the case went to trial. The prosecution called three witnesses and tendered the confessional statements of the defendant (Exhibit A) and medical report marked conditionally as Exhibit A1. The Appellant also gave evidence on his behalf apart from his wife who testified as DW1. At the end of the trial, the learned trial Judge convicted the Appellant of rape under Sections 1 (1) of the Violence Against Persons (Prohibition) Act, 2015
Dissatisfied with that decision, the Appellant appealed to this Court vide Notice and Grounds of Appeal filed on 30th of September, 2021, containing six grounds of appeal.
The parties filed and exchanged their briefs of argument in this appeal. The Appellant’s brief was filed on 28th of October, 2021. The Respondent’s brief was filed on 9th of November, 2021.
In the Appellant’s brief settled by his Counsel, J. S. OKUTEPA, SAN the Appellant formulated a lone issue for determination, from the six grounds of appeal which is as follows:-
“Having regard to the evidence adduced by the prosecution, whether the learned trial Judge was right to hold that the Prosecution proved its case against the Appellant beyond reasonable doubt as required by law to warrant the conviction and sentence passed on the Appellant?”
The Respondent’s Brief of Argument was settled by REBECCA ELECHI, ESQ., and the Respondent’s issue for determination is:-
“Whether the Court below was right in convicting and sentencing the Appellant based on the evidence presented, by the prosecution.”
The issue formulated by the Appellant, seems to me to be more apt, having regard to the grounds of appeal filed. I shall therefore utilize it in resolving the appeal.
Learned Counsel to the Appellant submitted that the trial Court was wrong when it held that the Prosecution proved their case beyond reasonable doubt as required by law to warrant the conviction and sentence passed on the Appellant. That the law is settled that in criminal matters, the standard of proof required in order to secure a conviction is that of proof beyond reasonable doubt and the onus of such proof rest solely on the prosecution. That where there is doubt no matter how small in the evidence adduced by the prosecution the doubt will be resolved in favour of the accused or Defendant. He relied on the cases of AHMED VS. THE STATE (2001) FWLR (PT. 34) 434 AT 438 – 445 and ODUNEYE VS. THE STATE (2001) FWLR (PT. 38) 1203 AT 1206.
He submitted that the learned trial Judge was wrong when he held that the extra-judicial statement of the Appellant is a confessional statement and consequently convicted the Appellant on that arbitral inference. He relied on the case of NKIE VS. FRN (2014) LPELR – 22877 (SC) to define confessional statement as an admission made by an accused person stating or suggesting that he committed the crime which is the object of the charge preferred against him. That it is an acknowledgment of the crime of the accused.
That in determining whether a statement is a confessional statement, the facts contained in that statement is what is to be considered and not the law. That a confessional statement is one which can ground a conviction and therefore has to be read holistically and given its direct meaning. He relied on the case of OSHIM VS. STATE (2014) LPELR – CA/C/308C/2013.
That for a statement to be confessional it has to be direct and positive admission of crime. That the Defendant stated in his statement that “I asked JUDITH to sit down and let me see something. I tried to see if pores is (sic) coming out of her which I did not see anything like that, but noticed that her pant was dirty … “The statement further reads, “I used my hand to check if there is porse coming out of her, which may be reason for the odour …” He referred to page 5 of the record of appeal. He submitted that trying to see and checking cannot by any stretch of the imagination mean the same thing as penetration. That one can check by using one’s eyes only and one can also check by merely touching. But to extend checking and seeing to include penetration is to stretch the words beyond reasonable contemplation.
He submitted that the defence of the Appellant that all he did was to check where the offensive odours were coming from in the body of the prosecutrix constitute a good defence of parental care and concerns. That the learned trial Judge failed to consider this vital and important defence. That it is trite law that in a criminal trial, any defence raised by an accused person must be considered however stupid. He relied on the cases of AIGBADION VS. THE STATE (2000) 4 SCNJ 1 AT 13 and OFORLETE VS. THE STATE (2000) 7 SCNJ 162 AT 164; IKO VS. THE STATE (2001) 14 NWLR (PT. 732) 221 AT 245.
That the trial Court failed in its duty to consider, appraise, review and evaluate all relevant evidence before delivering the judgment which is prejudicial to the Appellant. That the trial Court totally ignored, failed to recognize and turned a blind eye to the evidence of PW3 in its entirety.
That a finding of fact by a trial Court involves both perception and evaluation. He relied on the following cases:
1. GUARDIAN NEWSPAPERS LTD VS AJEH (2011) 10 NWLR (PT. 56) 574.
2. NACENN NIGERIA LTD VS BEWAC AUTOMOTIVE PRODUCERS LTD (2011) 11 NWLR (PT. 1257) 193.
3. WACHUKWU VS OWUNWANNE (2011) 14 NWLR (PT. 1266) 1.
Learned Counsel submitted that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. That the prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. That the burden does not shift, he relied on the case of ANYASODOR VS. STATE (2018) LPELR-43720(SC).
That penetration is the most important element of rape. He relied on the case of IKO VS. STATE (2001) 14 NWLR (PT. 732) 221 AT 245. That the fact that the prosecutrix says that the Defendant inserted his penis into her vagina has been held not to be sufficient proof of penetration in the absence of corroborative independent evidence. He relied on the case SIMON OKOYOMON VS. THE STATE (1973) 1 SC 21.
That the evidence of PW1 that the Appellant used his hand to “chuk” in her bom bom and Exhibit A which is the Appellant’s extra-judicial statement at page 4-8 of the record of appeal relied upon by the learned trial Judge was not supported by evidence. That the conclusion reached by the learned trial Judge was speculative in nature as Exhibit A1 (the Medical Report) never stated that there was penetration of the Appellant’s finger or penis into PW1’s vagina and the medical Doctor who prepared Exhibit A1 was not physically present in Court and in essence Exhibit A1 must be read and interpreted in its ordinary language.
That even if there was actually an injury in the vagina, the document never stated that the injury was caused by the Defendant. That the fact that the medical certificate was obtained a month after the incidence should have been considered by the Judge. That anything could have happened between the PW1 and another person which of course is not the business of the Appellant in this appeal.
Learned Counsel submitted that the law is settled that, where a trial Court failed in its duty of perception and evaluation of facts then it fails in its entire duty of impartial adjudication between the contending parties before it and the appellate Court if so called upon is under a bounden duty to intervene to evaluate the evidence as in the printed record and make relevant findings and reach appropriate decisions as borne out by the evidence in the interest of justice to the parties. He relied on the following cases:
1. ALI VS. STATE (SUPRA), OBOT VS. STATE (2018) LPELR-45185 (CA);
2. FULANI VS. STATE (2018) LPELR – 45195 (SC)
He relied on the case of EZE VS. THE STATE (2019) LPELR- 47984(CA) to state what the prosecution must prove in order to sustain a conviction for the offence of defilement. That from the evidence adduced by the Respondent as prosecution, there is no evidence that the Appellant had sex with PW1 who by the way, was above the age of 11 years. That there is no evidence that the Appellant penetrated the vault of PW1’s vagina and there is no evidence corroborating the evidence of PW1 which in itself cannot indict the Appellant for the offence of rape or defilement. That the Appellant was charged under the Violence Against Persons (Prohibition) Act, 2015 (VAPPA) and the VAPPA does not provide for the offence of defilement.
That there is no evidence on the record showing that the Appellant assaulted the person of PW1 and that the said act was accompanied by an act of indecency. Consequently, the Appellant cannot be convicted for a lesser offence particularly indecent assault.
Learned Counsel to the Appellant contended that judgment of the trial Court ought to be set aside as it is one which was reached by placing reliance on hearsay evidence. That the Respondent in proof of their case called 3 witnesses, PW1 – PW3 as listed in the proof of their evidence at page 3 of the record of appeal. That PW2; Pricilla Lordye was called by the Prosecution to “testify as the teacher who the victim (JUDITH James) first confided in about the rape incident by the defendant” he referred to Pages 100 – 102 of the record. He relied on the case of SAMA’ILA VS. THE STATE (2021) LPELR-53084 (SC).
He urged this Court to set aside the decision of the trial Court which was based on the evidence of PW2 and other pieces of evidence of doubtful veracity. He relied on the case of AKINBINU VS. NIGERIAN ARMY (2020) LPELR – 51477, P. 10, PARAS. A- E (CA).
That hearsay rule is to protect an accused person from being convicted upon the testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony. That where it is shown that the evidence relied upon to convict an accused person amounted to hearsay, an appellate Court would quash the conviction He relied on the following cases:
1. IJIOFFOR VS THE STATE (2001) LPELR – 1465 (SC) AT 19 B – F.
2. SIMEON VS STATE (2018) LPELR – 44388;
3. ENECHE VS. PEOPLE OF LAGOS STATE (2018) LPELR- 45826 (CA).
He submitted that the issue formulated above be resolved in favour of the Appellant because from the evidence led by the prosecution, they have failed to prove the necessary ingredients which not only need to be proven but to be proven beyond reasonable doubt. He relied on the case of NNAJIOFOR VS. PEOPLE OF LAGOS STATE (2015) LPELR – 24666 (CA).
In response to the above submissions of the Appellant’s learned Counsel to the Respondent submits that having regard to the evidence adduced by the Respondent at the trial Court, the Respondent as Prosecution successfully proved beyond reasonable doubt the offence of rape contrary to Section 1(2) of the Violence Against Persons (Prohibition) Act, 2015, against the Appellant. He relied on the case of ISA V. KANO STATE (2016) ALL FWLR (PT 822) P. 1775 PP1. 783-1784 PARAS H-D.
That proof ‘beyond’ reasonable doubt is not proof beyond all doubt or all shadows of doubt, it simply means establishing the guilt of the accused person with compelling and ‘conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. He relied on the case of SMART V THE STATE (2016) LPELR – 40827 (SC).
That it is the unchallenged evidence of PW1 that on 11th March 2017, she was alone at home when the Appellant returned from a wedding, forced her to remove her pant and in her words. “he used his hand to chuk me inside, her bombom (vagina) it was paining me but I was afraid of him and I could not shout, blood was coming out of my vagina and he told me not to tell anybody, that if I tell anybody he will kill me.” “(PW1’s)” evidence at the trial Court contained in pages 98 – 99 of the record of appeal).
That the trial Court was right when it held that the evidence of PW1 which was received under oath, was clear and not at all discredited neither was it impeached by the Appellant during cross-examination. He referred to page 138 and 144 of the record of appeal where the trial Court buttressed this point in her judgment.
That the law is trite that where evidence presented at trial remain unchallenged and uncontroverted, it is not only safe for the Court to rely on it, but the Court is bound to rely on, on same. He relied on the following cases:
1. PATRICK OFORLETE V. THE STATE (2000) LPELR-2270 (SCC) 20;
2. MAJOR BELLO M. V. THE NIGERIAN ARMY (2008) LPELR-1814 (SC);
3. JAMES SIMON V. THE STATE (2017) 1 -2 SC (PT. 1) 1, (2017) LPELR – 41988 (SC).
That the Appellant also gave credence to the testimony of PW1 when he admitted committing the offence in Exhibit A (confessional statement) which was rightly admitted in evidence by the trial Court, with no objection (page 103 of the record of appeal). The Appellant admitted putting his hand in the vagina of PW1 thus, corroborating the evidence of PW1.
That the intention of the Appellant was proved beyond reasonable doubt which was rightly drawn from the actions of the Appellant and circumstances of this case. That the Appellant met PW1 alone at home and this gave him the opportunity to commit the crime of rape. That he threatened to kill PW1 if she discloses what had transpired between them to any other person.
That the trial Court was perfectly in order when it admitted the testimony of PW2. He relied on AROGUNDADE V THE STATE (2009) 6 NWLR (PT 1136) P. 165 AT 181 – 182.
On the contention by the Appellant in paragraph 5.17 of his brief of argument wherein it was submitted that the Respondent failed to prove PENETRATION which is one of the key elements in a charge of rape under the provisions of Section 1(1) of the Violence Against Persons (Prohibition) Act, 2015, the Respondent’s learned Counsel stated this section expanded the definition of rape to include other part of the body, “the penetration of the anus or mouth of another person with any other part of his or her body …”
That the testimony of PW1 which was admitted in evidence and contained in pages 98-99 of records of appeal stated that “he forced me to remove my pant and he used his hand to chuk me inside my bombom (vagina).” That this was corroborated in Exhibit A. He relied on the case of JEGEDE V STATE (2001) 14 NWLR (PT. 773) 264 and IKO V STATE (2001) 14 NWLR (PT. 732) 221.
As regards Exhibit A1, learned Counsel to the Respondent submitted that it is clearly stated in Exhibit A1 (Medical Report) that the medical report was issued out on 3rd April, 2017 and PW3 from the record of proceeding never testified that the medical examination was carried out on 17th April, 2017.
In conclusion, learned Counsel urge this Honourable Court to uphold the judgment of the trial Court as the Respondent had proved that:
a. The Appellant penetrated the vagina of PW1 with his finger.
b. The Appellant had the mens rea to rape PW1 and he did rape PW1.
c. He forcefully penetrated the vagina of PW1 with his finger without her consent.
d. PW1 is not the wife of the Appellant.
e. The Appellant had the time, place and opportunity to commit the rape and
f. The Appellant was appropriately sentenced.
He urged the Court to uphold the judgment of the trial Court and dismiss the Appellant’s appeal.
The Appellant’s reply brief filed on 9/11/2021 is a rehash of all the arguments already canvassed in the main brief.
RESOLUTION OF LONE ISSUE NOMINATED FOR DETERMINATION OF THE APPEAL
The vehement contention of the Appellant in this appeal is that the learned trial Judge was wrong in holding that the Prosecution proved its case against the Appellant beyond reasonable doubt as required by law to justify conviction of the Appellant and the sentence imposed upon him.
It is the bounden duty of the Prosecution under the statute and the Constitution to prove or establish the guilt of the Defendant/accused beyond reasonable doubt. The Prosecution must establish the elements or ingredients constituting the offence for which the accused is charged. The Defendant enjoys the presumption of innocence and as such no onus lies on the Defendant to establish his innocence. Conversely when the Prosecution establishes the ingredients of offence charged then evidential onus is on the Defendant to cast doubt on the case of the Prosecution. See Section 135(1) (2) and (3) of the Evidence Act which provides:-
“135(1) The commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the defendant.”
This must be read along with Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended which says:-
“36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
1. SHUAIBU ABDU VS THE STATE (2017) 7 NWLR (PART 1564) 171 AT 186 F – H per SANUSI, JSC who said:-
“In all criminal cases, the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution, such doubt shall be resolved in favour of the accused person. See Famakinwa v. The State (2013) 7 NWLR (Pt. 1354) 597, Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1 and David Abaje v. The State (1 976) All NLR 139.
It is apposite to say that in order to prove an offence, the prosecution can use any of the following modes of proof namely:-
(1) Evidence of eye witness or witnesses; or
(2) Confessional Statement of the accused; or
(3) Through circumstantial Evidence.
2. IJEOMA ANYASODOR V THE STATE (2018) 8 NWLR (PT. 1620) 107 AT 123 A – C per SANUSI, JSC who said:-
“This Court in a plethora of its decided authorities had approved or endorsed three methods or modes of proof in criminal cases which include the followings:
(a) Evidence of eyewitness or witnesses account who had witnessed the commission of the offence(s) by the accused person charged.
(b) Through confessional statement of the accused made voluntarily by the accused wherein he categorically owned up the commission of the offence by him.
(c) Through circumstantial evidence. See Emeka v. State (2001) 6 SC 227 or (2001) 14 NWLR (Pt.734) 666, Ohunyon v. State (1996) 3 NWLR (Pt.436) 264, Bright Chibuike Anor v. The State (2010) LPELR – 3911, Igri v. The State (2010) 7 WRN 47; (2012) 16 NWLR (Pt. 1327) 522 and Ogba v. State (1992) 2 NWLR (Pt.222) 146.”
The prosecution is also under a bounden duty to establish all the components or elements of the offence for which the accused/ Defendant is charged.
However, as stated earlier the onus of proving reasonable doubt in the evidence of the prosecution will shift on an accused or Defendant in criminal case once the pieces of evidence proffered by the prosecution’s witnesses establishes or prove all the essential ingredients of the offence(s) for which the accused or the Defendant is charged. See:-
1. IJEOMA ANYASODOR V THE STATE (2018) 8 NWLR (PT 1620) 107 AT 122 G – C per SANUSI, JSC who said:-
“It is trite law that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. See Section 138(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 2004 (as amended).
See also the cases of Duru v. The State (1993) 3 NWLR (Pt. 281) 290, Amadi v. Federal Republic of Nigeria (2008) 12 SC (Pt. 111) 55; (2008) 18 NWLR (Pt. 1119) 259 and Abdullahi v. State (2008) 5-6 SC (Pt. 1) 1; (2008) 17 NWLR (Pt. 1115) 203. The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore does not shift. This is borne out from the fact that our Constitutions had entrenched adequate provisions to the effect that an accused person is always presumed innocent until he was otherwise proved to have committed that offence. Therefore, once the prosecution succeeded in proving the elements or ingredients of the offence or offences, the burden thereupon, shifts to the accused person to prove that he was not responsible in committing the offence(s) charged. If he succeeds in doing so, the trial Court then must acquit the accused person promptly.”
The one count charge against the Appellant reads:-
“That you Dauda Sani Haladu, (M), 42 years old, of Block 1b, Flat 5, NUC quarters Karu FCT, Abuja on or about 11/3/2017, at Block 1b, Flat 5, NUC quarters Karu, FCT, Abuja within the jurisdiction of this Court raped JUDITH James (F) 15 years old, without her consent, by intentionally penetrating her vagina with your penis and hand and thereby committed an offence punishable under Section 1 (2) of the Violence Against Persons (Prohibition) Act, 2015.”
It is here relevant to reproduce the provisions of Section 1(1) (2) (3) (4) of the Violence Against Persons (Prohibition) Act, 2015 which are as follows:-
“1(1) A person commits the offence of rape if-
He or she internationally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else;
(a) The other person does not consent to the penetration: or
(b) The consent is obtained by force or means of threat or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act or the use of any substance or additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.
(2) A person convicted of an offence under Subsection (1) of this Section is liable to imprisonment for life except:
(a) Where the offender is less than 14 years of age. The offender is liable to a maximum of 14 years imprisonment.
b) In all other cases, to a minimum of 12 years imprisonment without an option of fine, or
(c) In the case of rape by a group of persons, the offenders are liable jointly to a minimum of 20 years imprisonment without an option of fine.
(3) The Court shall also award appropriate compensation to the victim as it may deem fit in the circumstance.
(4) A register for convicted sexual offenders shall be maintained and accessible to the public.”
As can be seen above, the ingredients of offence for which the Appellant was charged are clearly embedded in Section 1(a) (b) (c) of the Act and an offence is committed once the person charged is proved to have intentionally penetrated the vagina, anus, or mouth of another person with any other part of his or her body or anything else. (Underlined mine)
In order to sustain the Prosecution’s case against the Appellant, the Prosecution called three witnesses viz:
1. The victim;
2. Teacher at the school of the victim;
3. The Investigator.
The Appellant pleaded not guilty to the Charge. The entire evidence of the victim, one JUDITH JAMES reads:-
“PW1(F) witness informed that she would speak the truth and know the nature of an oath and the consequences of telling lies.
My name is JUDITH James. I am a student of LEA Primary School Karu Abuja. I am in primary 2. I can recognise the man in the dock. He is Dauda Sani. When I was living with my brother in the village, Dauda Sani (defendant) sister came and told my sister that she wants to take me to Abuja to come and take care of her children and that she will put me in school and take me as her daughter. When we came to Abuja in 2016, Dauda Sani (defendant) put me in school. One day, his wife was not around as she went out with the defendants children, the defendant went for a wedding and I was at home.
When he came back I was outside selecting beans and Dauda called me to come. He said I should remove my pant. I told him that he told my brother that he will take me as his daughter and why is he telling me to remove my pant. He forced me to remove my pant and he used his hand to chuk me inside my bombom (vagina). It was paining me but I was afraid of him and I could not shout. Blood was coming out of my vagina and he told me not to tell anybody. That if I tell anybody he will kill me. I went to school on Monday and I told one woman in my school who speaks the same language with me.
That Mr. Dauda Sani sleep with me and said I should not tell anybody and I gave her my brothers number to tell him that I want to go, I do not want to stay with Mr. Dauda Sani again. The woman then took me to my class teacher and my teacher took me to counsellor in my school. The woman I am referring to is a teacher in my school and is teaching primary 3A. It was this woman who took me to the class teacher and my teacher took me to counsellor. The case was then taken to NAPTIP and NAPTIP took me to hospital and they did test. When I came back to the house, I met one girl in the house. The sister to the defendant’s wife. She also told me that Dauda Sani has been doing the same thing to her and she is tired. This is all I know.”
The evidence of the Investigator PW3 can be found on pages 102 – 105. The investigator tendered the statement of the Appellant which was made under caution as Exhibit “A” without any objection from the learned Counsel to the Defendant/ Appellant, one MOHAMMED SANI, ESQ on 26/2/2018 at page 103 of the record of appeal.
The Appellant testified in his defence. His wife first testified on his behalf and said she was the one the checked the victim. The Appellant resiled from the statement made in his oral evidence before the lower Court.
The learned Senior Counsel to the Appellant has strongly submitted that Exhibit “A” is not a confessional statement and did not encapsulate the ingredients of the offence for which Appellant was charged.
I am of the solemn view that Exhibit “A” which is the extra-judicial statement made by the Appellant is a confessional statement as it contained the components or elements of the offence for which the Appellant was charged.
The settled position of the law is that an Accused or Defendant can be convicted solely on his confessional statement. There is nothing before the Court to show that the statement was made under duress. His evidence that he wrote what the Investigator wanted him to write was an afterthought. The Appellant made Exhibit “A” and the learned trial Judge appreciated the position of the accused concerning the confessional statement Exhibit “A”. The lower Court properly evaluated the evidence of PW1 vis-a-vis Exhibit “A” and Appellant’s oral evidence before the lower Court. For ease of reference, I refer to pages 138 – 141 where the learned trial Judge variously found and held as follows:-
“On the other hand, learned defence counsel has seriously canvassed the point that there was no penetration and thus no sexual intercourse had occurred with the prosecutrix, relying on Section 282(1) of the Penal Code Law.
On record, the evidence of PW1 is clear on this point when she stated exactly what the defendant did to her. PW1 in her evidence stated that the defendant used his hand to chook her vagina (bom-bom) and threatened to kill her if she informed anybody. The evidence of PW1 was not at all discredited by way of cross-examination by the defence. Her evidence was corroborated by the defendant in Exhibit A, his confessional statement.
The evidence of the defendant in Exhibit A gives clarity as to what transpired that day. Exhibit A was made on the 27/3/2017 at NAPTIP office where the case was reported. The defendant stated thus:
“On this faithful Saturday, I came back from a friend wedding, entered into the house and saw JUDITH seating down quietly. I asked her of my wife, she said they went out to buy cake, I immediately called my wife on phone which she said they are through and very closed to the house. I sat down and asked JUDITH if she had eaten, she said yes, I told her to give me water to take my drugs, she brought the water and knelt down to give me, one very offensive odour came up on me which I became confused and asked JUDITH to pull down her pant and sit down let me see something. I tried to see if pores is coming out of her which I did not see anything like that, but noticed that her pant is dirty.
Further in the statement the defendant said:
“She asked JUDITH what was wrong with you, she could not say anything, not until when they called one tiv woman which they spoke tiv language for a long time before JUDITH said I defile, which what I know is just asked her to remove her pant, I used my hand to check if there is pores coming out of her, which may be the reason for the odour.” It is important to note that the defendant by his statement admitted in evidence as Exhibit A confessed that he put his hand to check if pores was coming out of the victim’s vagina.
Although it is always desirable in law to have some evidence outside the confession in further proof of the offence, the absence of such additional evidence would not necessarily prevent a Court from convicting on the confessional statement alone provided the statement satisfies the test of being positive, direct and unequivocal as in this case. Thus, an accused person may be convicted on his confessional statement alone. He may also be convicted where the confession is consistent with other ascertained facts which has been proved. See Ikemson vs. State (1989) 3 NWLR (Part 110) 445. It is trite that in a trial for rape, evidence of corroboration could come from the defendant himself. See Popoola vs. State (2013) LPELR 20973 (SC).
I need to re-echo the position of the law that corroboration need not consist of direct evidence that the accused committed the offence charged, nor need it amount to a confirmation of the whole account given by the prosecutrix. It only needs to corroborate the said evidence in some respect material to the charge in question. It is also settled that corroborative evidence must in itself be completely credible. See Iko vs. State (2001) 7 SC (Part 11) 115 where Kalgo, JSC succinctly captured the point of law thus:
“It is trite law that evidence in corroboration must be independent testimony, direct or circumstantial which confirms in some material particulars not only that an offence has been committed but that the accused had committed it.”
The defendant in his oral evidence sought to explain that what he stated in his statement Exhibit A was what the IPO wanted him to write. That it will be a condition for his bail.
As stated earlier in this judgment, the above evidence of the defendant retracting his confessional statement is a mere afterthought intended to deflect from the veracity of Exhibit A.”
The findings are quite unassailable. See
1. JAMES OBI ACHABUA VS THE STATE (1976) LPELR – 63 (SC) per OBASEKI, JSC who said:-
“Only in few cases do criminals perpetrate their crimes in the open and the secrecy with which they execute their plans has tended to deprive the prosecution in some cases of eyewitnesses. Happily, in this case, we have the extra-judicial confessional statements in evidence and the recovery of the several head of deceased from the grave identified by the Appellant, as the place he burned it established the truth of the confession. It is settled law that confession alone is sufficient to support conviction without corroboration so long as the Court is satisfied of the truth of the confession. (R v Sykes 8 Cr. App. R. 223, R v. Kanu 14 WACA 30, EDET OBOSI v THE STATE (1965) NWLR 119, Paul Ohochie & 7 Ors v. The Republic (1966) NNR 307 and Jimoh Yusufu v The State (1975) 6 S.C. 167.”
2. LEKAN OLAOYE VS THE STATE (2018) 8 NWLR (PART 1621) 281 AT 299 D-G per SANUSI JSC who said:-
“It is also part of the complaints of the Appellant that the trial Court had convicted him on all uncorroborated and inadmissible evidence. According to him, the trial Court solely relied on the confessional statement (Exhibit H) to convict him of the offences charged. It needs be stressed here, that a confession of an accused person to the commission of an offence plays a vital role in the determination of his guilt. Therefore, a trial Court is free to convict him even on the confessional statement alone once that trial Court is convinced that the confession is voluntary as in this instant case. I said so because by his confession, the accused (now Appellant), had confirmed the commission of criminal responsibility in terms of mens rea and actus rea. See Okeke v. State (2003) 15 NWLR (Pt. 842) 25. It also needs to be emphasized and it is also settled law too, that mere retraction of a voluntary confessional statement by an accused person, as in this instant case, does not render such statement inadmissible or worthless or untrue in considering his guilt. See Idowu v. State (2000) 7 SC (Pt. 11) 50: (2000) 12 NWLR (Pt. 680) 48, Silas v. State (1996) 1 NWLR 59. Now, coming to the issue of alleged want of corroborative evidence insinuated by the learned counsel for the Appellant, I do not think that is true. As it could be fathomed, PW1 and PW2 were eyewitnesses who had actually witnessed the entire criminal act perpetrated by the Appellant and his partners in crime. Both of them gave uncontradicted and uncontroverted testimonies, which had duly corroborated Exhibit ‘H’, the Appellant’s confessional statement. I must however state here that a confessional statement which is made voluntarily and is direct, cogent, credible and positive, is enough to ground conviction even without corroboration of any sort. See Sule Iyanda Salawu v. The State (1971) NMLR 249, Grace Akinfe v. The State (1988) 7 SCNJ (Pt. 11) 226: (1988) 3 NWLR 729 and Yahaya v. The State (1986) 12 SC 282 at 290.”
3. ANTHONY NWACHUKWU VS THE STATE (2007) 17 NWLR (PART 1062) 31 AT 65H TO 66A per MOHAMMED, JSC who said:-
“Thus, even without those corroborative acts, the appellant could perfectly be convicted solely on his voluntary confessional statement. I am of the opinion that a positive, direct and voluntary confession by an accused person is the best evidence a criminal Court can conveniently admit to convict its maker. The admission of a confessional statement which has satisfied all the requirements of the law to be “confessional”, properly so called, can satisfy the burden of proof required of the prosecution to discharge in order to secure a conviction. I am satisfied that the two lower Courts have found that the prosecution discharged the onus of proof placed on it by the law.”
I am not unmindful of the Appellant’s complaint that PW3 gave evidence of defilement while the charge talked of rape. It must be noted clearly that the definition of rape under the Violence Against Persons (Prohibition) Act, 2015 is not the same as definition of rape under the Penal Code Act and the Criminal Code Act. The law is very clear that any penetration of vagina, anus or mouth of another with any part of the body of the offender on the victim encapsulates the commission of the offence of rape under Section 1(1) of the Violence Against Persons (Prohibition) Act 2015 as the emphasis is in any manner and not necessarily vide the penis of the offender if he is a man. The offender can be a man or woman. The intention of the law or the Act is to forbid all manners of sexual abuse or harassment on any person within Federal Capital Territory, Abuja. The provisions of Penal Code and Criminal Code as to mode of proof of rape are inapplicable. See Section 45 of the Violence Against Persons (Prohibition) Act 2015 which provides:-
“(1) Any offence committed or proceedings instituted before the commencement of this Act under the provisions of the –
(a) Criminal Code, Cap. LFN, 2004
(b) Penal Code, Cap, LFN, 2004
(c) Criminal Procedure Code, Cap. LFN, 2004
(d) any other law or regulation relating to any act of violence defined by this Act shall as the case may require be enforced or continue to be enforced by the provisions of this Act.
Any provision of the Act shall supersede any other provision on similar offences in the Criminal Code, Penal Code and Criminal Procedure Code.”
And sexual abuse under Section 46 of the Act means:
“means any conduct which violates, humiliates or degrades the sexual integrity of any person.”
The fact that PW3 said the girl was defiled did not take the offence out of what “rape” entails under the Violence Against Persons (Prohibition) Act 2015 Section 1 thereof.
Defilement is an element and adjunct of rape. It is a sexual abuse. Black’s Law Dictionary, 11th Edition define it on page 534 thus:-
“DEFILE: 1. To make dirty; to physically soil. 2. To figuratively tarnish; to dishonor. 3. To make ceremonially unclean; to desecrate. 4. To morally corrupt (someone). 5. Archaic. To debauch (person); deprive (a person) of chastity.”
The Appellant admitted putting his hand in the body of the victim and that he asked the victim, JUDITH to remove her pant and found that pus was not coming from her but the pant was dirty, according to the Appellant. The Appellant thereby walked himself into the penumbra of Section 1 of the Violence Against Persons (Prohibition) Act. The Appellant violated the person of the victim, JUDITH JAMES (F).
The Appellant also would want the Court to make a distinction between bombom and vagina. The facts remains that the Appellant ordered the victim to undress and remove her pant. Putting his hand on her body and observing her nakedness is also sufficient to find the Appellant guilty. He acted indecently and dehumanized the victim. These are the type of sexual abuse or harassment the law is intended to curb and prohibit.
The Appellant also complained that evidence of PW2 is hearsay. That cannot be right. The PW2 narrated what the victim JUDITH JAMES (F) told PW2 and the story of PW2 was confirmed by the PW1 who said he told the experience to PW2. The actus reus and mens rea have been sufficiently established against the Appellant.
There was direct evidence linking the Appellant with the commission of the offence both from PW1, PW2 & PW3 on the one hand and the Appellant’s Confessional Statement Exhibit “A”.
In the result, the sole issue distilled by the Appellant for determination is hereby resolved against the Appellant.
The Appellant’s appeal is unmeritorious. It is hereby dismissed.
The judgment of the Federal Capital Territory High Court of Justice delivered on 8th day of July, 2021 by HON. JUSTICE M. A. NASIR, convicting the Appellant and sentencing the Appellant to a term of imprisonment for 12 (twelve) years without option of fine IS HEREBY AFFIRMED.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA.
I am in agreement with the reasoning and conclusion contained therein and I also dismiss the appeal. I hereby affirm the judgment of the Federal Capital Territory High Court of Justice delivered on 8th day of July, 2021 by Hon. Justice M. A. Nasir.
DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, PETER OLABISI IGE, JCA just delivered and I agree with the findings and conclusion arrived therein that this appeal lacks merit and it is dismissed by me as well.
The judgment of the High Court of the Federal Capital Territory, Abuja delivered on the 8th day of July, 2021 by M. A NASIR J., is hereby affirmed.
Appearances:
J. S. OKUTEPA, SAN, with him, ONYINYE JEDIDIAH, ESQ. and EMODGAYAJE P. GALUMJE, ESQ. For Appellant(s)
S. A. LANGYI, with him, REBECCA E. ELECHI, ESQ. For Respondent(s)
