IBRAHIM v. STATE (2022)

IBRAHIM v. STATE

(2022)LCN/16830(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/G/98C/2021

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

YAKUBU IBRAHIM APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WAYS IN WHICH THE PROSECUTION CAN ESTABLISH THE GUILT OF AN ACCUSED PERSON

It is trite law that the conviction of an accused person in a criminal trial can be based on any of the following three ways which are not mutually inclusive but exclusive. The prosecution is not under obligation to establish the guilt of the accused in all three ways as it is sufficient to establish the guilt by one of the ways provided the prosecution prove his case beyond reasonable doubt. The three ways by which the prosecution can prove his case are direct eye witness evidence, confessional statement or circumstantial evidence. See Bassey vs State (2019) 12 NWLR (PT 1686) 348, Mathew vs State (2019) 8 NWLR (pt 1675) 461, Abimbola vs State (2021) 17 NWLR (pt 1806) 399 and Musa vs State (2017) 5 NWLR (pt. 1557) 43. In proving the guilt of the accused in any of these ways, the prosecution is not under any obligation to call a host of witnesses as it can prove its case with the evidence of one witness provided the evidence of the witness is credible enough to establish the ingredients of the offence beyond reasonable doubt. See Alao vs Akano (2005) 11 NWLR (pt 935) 160, Sunday vs State (2021) 17 NWLR (pt 1804) 115 and Atiku vs State (2010) 9 NWLR (PT 1199) 241. PER TOBI, J.C.A.

THE POSITION OF LAW ON CONFESSIONAL STATEMENTS

The law on confessional statement is clear. Section 28 of the Evidence Act, 2011 provides the definition of a confessional statement. The section provides thus:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the offence.”
This definition has received a lot of judicial pronouncement. I will look at a few of them. In Akpan vs. State (2001) 7 SC (Pt. II) 29, the apex Court per Karibi-Whyte, JSC held:
“Section 27(1) of the Evidence Act has defined “confession”, as “an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed the crime”. This definition is wide enough to cover both extra-judicial and judicial confessions. Extrajudicial confessions are those made otherwise than in the course of judicial proceedings.”
Similarly, in Nguma vs. AG Imo State (2014) 7 NWLR (pt 1405) 119; Okoro, JSC at pages 61-62 held:
“Section 27 (1) & (2) of the Evidence Act state as follows:-
“(1) Confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that offence.
(2) Confessions if voluntary are deemed to be relevant facts as against the person who made them only.” Thus, a confessional statement, if it is true, positive and direct becomes proof of an act. Also, where it is voluntarily made stating or suggesting the inference that an accused committed an offence for which he is charged, it is relevant and admissible against him provided the statement was not made as a result of any threat, promise or inducement from a person in authority. It has to be noted that any voluntary information given by the accused at any time during investigation which leads to the discovery of any fact material to the charge against him is equally admissible. See PETER vs. STATE (1997) 12 NWLR (Pt. 531) 1 at 22, FATILEWA vs. THE STATE (2008) 12 NWLR (Pt. 1101) 518, (2008) 4 – 5 SC (Pt. 1) 191.” PER TOBI, J.C.A.

WHETHER OR NOT THE COURT CAN CONVICT ON THE UNCORROBORATED SWORN EVIDENCE OF A CHILD OR MINOR

The law is clear and unequivocal that though a Court can convict on the uncorroborated sworn evidence of a child or a minor but the unsworn evidence of a child will not enjoy that privilege. See Onyegbu vs State (1995) 4 NWLR (PT 391) 510, Sambo vs State (1993) 6 NWLR (pt 300) 399. For conviction to be based on the unsworn evidence of a child or a minor, such evidence must be amplified by a corroborative evidence which has to be an independent evidence that sings the same song like the evidence of the child. See Boniface Adonike vs State (2015) 7NWLR (pt 1458) 237, Dagayya vs State (2006) LPELR-912(SC), Sambo vs State (1993) LPELR-3000(SC). PER TOBI, J.C.A.

INGREDIENTS OF THE OFFENCE OF RAPE

To crown it all, by the provision of Section 282 (1)(e) of the Penal Code, the question of consent is resolved in favour of the PW1 who was a minor of 12 years at the time the offence was committed. By that provision, as rightly pointed out by the lower Court at page 56 of the record, consent is immaterial because she is a minor and incapable of giving a valid consent. In Adonike vs State (supra), while looking at a similar provision under the Delta State Criminal Code, the apex Court held:
“To succeed the prosecution must prove beyond reasonable doubt:
(a) that the accused/appellant had sex with the child who was under the age of 11 years.

(b) that there was penetration into the vault of the vagina
(c) the evidence of the child must be corroborated.
The evidence for defilement is the same as in rape expect that for defilement, it is immaterial whether that act was done with or without the consent of the child. This is the well laid down position of the law, that a girl under age of 11 is a child and so is not capable to consent to sex. The Court would hold that she did not consent even if she did consent. A child cannot consent to sex, that is the position of the law.”
This Court took a similar position in Charles v State (2018) LPELR-43663 (CA) when it was held thus:
“The contention of the Respondent is that the issue of consent cannot avail the Appellant as envisaged in the case of Isa v. The Kano State (2016) LPELR – 40011 SC Pg. 10-11. The fact of the case is that the Appellant raped a girl aged 8 years. The Appellant lured the prosecutrix with money to buy him pure water and upon bringing the pure water; the Appellant dragged her to an uncompleted building and raped her before she was rescued. At the conclusion of the trial, the Appellant was sentenced. PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was charged for the offence of rape of a twelve years old girl by name, Hajara Haruna. The lower Court after taking the evidence and the submission of Counsel delivered its judgment on 11/01/2021 found on pages 48- 62 of the record. In the said judgment, the lower Court, presided over by His Lordship, J. A. Awak of the Gombe State High Court convicted the accused person/Appellant for the offence of rape under the Penal Code and sentenced him to fourteen years imprisonment without an option of fine. This decision of the lower Court found specifically at pages 60-62 of the record reads thus:
“Having regards to the submission of learned counsel for the prosecution taking into consideration the testimonies of all prosecution witnesses and Exhibits A&A1 tendered and admitted before the Court. I am satisfied that the prosecution has discharged the burden of proof placed upon to establish their case beyond reasonable doubt; so I hold.
I accordingly resolved the sole issue formulated by the prosecution in favour of the prosecution against the accused person, I accordingly find the accused person guilty of rape as charged and convict him accordingly as charged.”

It is this judgment that the Appellant is appealing against. The Appellant filed a Notice of Appeal of 1 ground. The fact that culminated into this appeal are not complicated, it is the application of the law to those facts that have thrown up some challenges in the case and indeed this appeal.

The case of the Respondent in the lower Court is that sometime on 14/9/2018, the accused bought two sachet of pure water from one Hajara Haruna and gave her fifty naira. She did not have change so he asked her to come back for the money. On returning for the money, the accused gave her One Hundred naira and she still did not have change. He suggested that they go look for change. On their way, the accused lured her into a maize farm and raped her. Upon completion of the dastardly act, the Appellant was arrested while trying to escape from the crime scene by PW3 and other members of the vigilantee group, handed him over to the police and consequently charged, arraigned and finally convicted him for the offence of rape punishable under Section 283 of the Penal Code.

The Appellant’s brief of argument was settled by Olarenwaju T. Akinsola Esq., wherein he formulated a sole issue for determination viz:
Whether the trial Court was not in error when it convicted and sentenced the Appellant to fourteen years imprisonment without any option of fine on the uncorroborated evidence of the PW1?

On the sole issue, the Appellant’s Counsel submitted that the learned trial Judge was wrong in its finding and conclusion. This submission is based on the premise that the evidence of PW2 and PW3 falls within the meaning of hearsay evidence as given by the Supreme Court in the case of Felicia Ojo v. Dr. Gharoro & 2 Ors [2006] LPELR 2383, P. 16, paras D-E. Both PW2 and PW3 were told of the incident, they neither witnessed the incident nor were they privy to the alleged transaction between PW1 and the Appellant. Hearsay evidence are not admissible as provided in Section 38 of the Evidence Act and as such cannot be used to corroborate the evidence of PW1. The Appellants counsel further submitted that the evidence given by PW2 and PW3 ought not to have been given any probative value having regard to the fact that they constituted hearsay evidence and in the absence of any corroborative evidence the conviction of the Appellant based on them cannot hold water. He referred to Vivian Odogwu v. State [2013] LPELR 42802, P.27 para C.

Having submitted that the PW1 is a minor, It is the firm submission of Counsel referring to Section 209(1)-(3) of Evidence Act that there cannot be a valid conviction for an offence on the evidence of a child without corroborative evidence. He referred to the case of Adegboyega Adenekan v. State of Lagos (2020) LPELR 50406, Pages 56-65, Pares F-E; Danjuma Kwanle v. COP Plateau State Command [2017] LPELR 47124, Pages 24-25, paras F-g in submitting that in the absence of any material evidence to corroborate the testimony of PW1 implicating the Appellant, the conviction should be overturned. For there to be corroboration, there must be the main evidence and the supplementary evidence. In the instant case counsel submitted that what we have is the main evidence of PW1 and versions of the main evidence as told by PW2 and PW3. This according to counsel does not amount to corroboration.

The Appellant’s Counsel submitted that having regard to the nature of the offence for which the Appellant was charged, corroborative evidence is still required as a matter of practice. He referred to the opinion of S.S. Richardson, the author of Notes on the Penal Code Law and the Nigerian case of Mohammed Ali v. State [2020] LPELR 53409, page 40, paras E-B.

In the absence of the corroboration of the evidence of the PW1, the only evidence left with the Court is the retracted confessional statement of the accused person. Having retracted the confessional statement, the trial Court ought to have used the veracity test to authenticate the statement before convicting the Appellant, counsel submitted citing the case of State v. Ibrahim Yahaya [2019] LPELR-47611 pages 32-33 paras C-D. The Appellant’s counsel submits that there was nothing else placed by the Prosecution before the trial Court with which the trial Court could have confirmed the authenticity or otherwise of the statement. In the absence of an authenticated confessional statement, counsel vehemently submitted that the lower Court could not hold unto anything to convict the Appellant.

Finally, O. T. Akinsola Esq., urges this Court to allow this appeal and set aside the decision of the trial Court.

The learned Counsel for the Respondent is Sadiya Adamu Jauro (Mrs). Assistant Chief State Counsel (ACSC) of the Ministry of Justice, Gombe State. In the Respondent’s brief of 10/1/22 deemed on the 20/01/22 learned ACSC formulated an issue for determination viz:
Whether from the totality of the evidence adduced by the Respondent at the trial, the guilt of the Appellant was proved beyond reasonable doubt?

On the sole issue, the Respondent’s counsel submitted that to secure a conviction for the offence of rape under Section 283 of the Penal Code, the prosecution is bound to prove the following ingredients beyond reasonable doubt:
a) That the accused person had sexual intercourse with the prosecutrix.
b) That the act of sexual intercourse was done without her consent or the consent was obtained by fraud, force, threat, intimidation, inducement, deceit or impersonation.
c) That the prosecutrix was not the wife of the accused person.
d) That there was penetration.
Counsel referred to the case of Posu & Anor v. The State (2011) 2 NWLR (Pt. 1234) 399, Isa v. State (2016) 6 NWLR (Pt.1508) 234 at 261 paras E-H

Learned ACSC, submitted that the Respondent through eye witness testimonies, the Appellant’s confessional statement and circumstantial evidence, proved the offense of rape against the Appellant beyond reasonable doubt. The Appellant in his confessional statement admitted to committing the offence, this can be gleaned in pages 10-20 of the record of the appeal. The Appellant thereafter denied making the confessional statement when one Sgt. Kenas Musa sought to tender the Appellant’s confessional statement at the trial. The trial Court however admitted the said confession in evidence and after due observance of the rules guiding the consideration of retracted confessional statement, found admissible corroborative evidence on the record in reaching an impeccable decision that the confession was true and probable. This Counsel submitted.

On the subject of the Appellant’s counsel submission on the uncorroborated evidence of PW1, it is the submission of learned ACSC relying on Section 209(1) & (3) of the Evidence Act and the case of Obri vs. The State (1997) LPELR-2194 (SC); Dagayya vs. The State (2006) LPELR-912 (SC) that the submission of Appellant’s counsel did not represent the legal position.

The question according to counsel is whether the unsworn evidence of PW1 was corroborated? It is the firm answer of Counsel in the affirmative to this question and Counsel went on to submit that there are credible independent evidence on the record that corroborates the evidence of PW1 to the effect that the Appellant had lawful carnal knowledge of her without her consent. He refers to the evidence of PW3 at pages 39-40 of the record. Although PW3 did not catch the Appellant in the act but saw the victim lying on the floor and the Appellant fleeing the scene of the crime. It is the further submission of counsel that there is circumstantial evidence which by coincidence is capable of proving that the Appellant as a matter of fact had unlawful carnal knowledge of PW1. To this end, Counsel submitted that where direct evidence is not available, circumstantial evidence that is cogent, compelling and points to the guilt of the accused is admissible to sustain a conviction. He refers to the cases of Egberetamu v. State (2014) LPELR-22615(CA), Umukoro v. State (2018) LPELR-46159 (CA), Elias v. FRN & Anor (2016) LPELR-40797 (CA). The mere fact that PW1 was found lying down and the Appellant arrested while trying to escape from the crime scene corroborates the testimony of PW1 to the effect that the Appellant had lawful carnal knowledge of her without her consent. The evidence adduced by the Respondent at the trial were not challenged or discredited under cross-examination and therefore the lower Court was right to have acted on the said evidence in convicting the Appellant as charged, Counsel submitted.

Sadiya Adamu Jauro (Mrs) submitted that the Appellant by his Notice of Appeal did not challenge the above finding of the lower Court. The law is trite that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and binding on parties. He referred to the cases of Amale v. Sokoto Local Government (2012) 5 NWLR (Pt. 1292) 181, SCC (NIGERIA) LTD v. Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike v. Nwachukwu (2013)3 NWLR (Pt.1342)503, Nwaogu v. Atuma (2013) 11 NWLR (Pt 1364)177. It is the final submission of counsel that this appeal be dismissed and the decision of the lower Court be affirmed.

For the proper flow of this judgment, it will not be out of place to rely the facts of the case that cumulated to this appeal in some greater details. In this appeal, the Appellant is challenging his conviction for the offence of rape contrary to Section 282 of the Penal Code Law of Gombe State. The Appellant at the lower Court pleaded not guilty and the case went into trial. Through his Counsel, Appellant cross-examined all the prosecution witnesses but he did not testify or call any witness on his behalf. He rested his case on the prosecution and did not file any written address. The lower Court convicted the Appellant on the evidence of PW1 (the victim who is a minor), his confessional statement and the circumstantial evidence of PW3 (the vigilante that arrested the Appellant in the scene of crime). The challenge of the Appellant in this one ground appeal is that the lower Court was wrong in his conviction of the Appellant on the uncorroborated witness of the PW1 who was a minor at the time the offence was committed. She was 12 years old. The Appellant’s appeal is mainly on the ground that by the provision of Section 209 of the Evidence Act, 2011, no Court should convict an accused over the uncorroborated unsworn evidence of a minor. At this point, I must mention that the Appellant formulate a straight forward sole issue for determination. The Respondent also adopted that issue. It is safer for me to adopt the same issue for determination. In this appeal, the issue for determination is reproduced for ease of reference:
Whether the trial Court was not in error when it convicted and sentenced the Appellant to fourteen years imprisonment without any option of fine on the uncorroborated evidence of the PW1?

I will at this point correct a misconception the submission of the Appellant’s counsel revealed. It is not correct that the conviction of the Appellant is solely based on the uncorroborated unsworn evidence of the PW1 who is a minor. I have read the judgment again and again, I make bold to say that, the submission of the Appellant’s Counsel on this point is not correct. The lower Court in its judgment found at pages 48-62 of the record based its judgment on the evidence of PW1 which the Court feels is properly corroborated by the evidence of PW3 who provided the circumstantial evidence.. In addition to that, the judgment was based on Exhibits A and A1, which the Court declared as confessional statement of the Appellant. Whether the lower Court is right is a different kettle of fish but for now, I am not in agreement with the Appellant’s Counsel on this point.

It is trite law that the conviction of an accused person in a criminal trial can be based on any of the following three ways which are not mutually inclusive but exclusive. The prosecution is not under obligation to establish the guilt of the accused in all three ways as it is sufficient to establish the guilt by one of the ways provided the prosecution prove his case beyond reasonable doubt. The three ways by which the prosecution can prove his case are direct eye witness evidence, confessional statement or circumstantial evidence. See Bassey vs State (2019) 12 NWLR (PT 1686) 348, Mathew vs State (2019) 8 NWLR (pt 1675) 461, Abimbola vs State (2021) 17 NWLR (pt 1806) 399 and Musa vs State (2017) 5 NWLR (pt. 1557) 43. In proving the guilt of the accused in any of these ways, the prosecution is not under any obligation to call a host of witnesses as it can prove its case with the evidence of one witness provided the evidence of the witness is credible enough to establish the ingredients of the offence beyond reasonable doubt. See Alao vs Akano (2005) 11 NWLR (pt 935) 160, Sunday vs State (2021) 17 NWLR (pt 1804) 115 and Atiku vs State (2010) 9 NWLR (PT 1199) 241.

In resolving the sole issue, I will look at how the lower Court applied the three ways in determining whether the lower Court was right in his decision. In doing so, it will not be out of place to look at the unchallenged facts before the lower Court. From the totality of the evidence before the lower Court and the exhibits tendered, it is clear that the victim PW1 is a minor whom the Appellant had sex with or in legal terms had carnal knowledge of her. This is the clear evidence of PW1 who is not just the eyewitness but also the victim of the offence. This fact the Appellant did not deny when he admitted that much in his retracted statement, Exhibit A (the Hausa version of the statement) and A1 (which is the English version or better still the translated version of the Statement). The Appellant was arrested at the scene of the crime by PW3. With this clear evidence, the real issue is whether the carnal knowledge the Appellant had of the PW1 was lawful or not.

The Appellant’s Counsel in his submission had used the expression “unlawful carnal knowledge without the consent of PW1”. To say that a carnal knowledge is unlawful without consent seem to be a repetition or tautology. By having carnal knowledge of a person is not necessarily legally wrong. The carnal knowledge is unlawful when it is done without the consent of the other person. The point I am laboring to make is that, it is the carnal knowledge had without the consent of the other person that makes it unlawful and illegal. If there is consent, the carnal knowledge is not unlawful. This represents the general position of the law. I thought to make this point clear because from the circumstantial evidence of PW3, the direct evidence of the victim PW1 and the retracted statement of the Appellant, the lower Court in my view was right in holding that the Appellant had carnal knowledge of the PW1.

It is worthy of note that the Appellant did not testify at the lower Court or call any evidence. This means the Appellant rest his case on the case of the Prosecution. The implication of this is that, the Appellant is asking the Court to believe the story of the prosecution as presented but that such evidence does not have enough evidence to convict him. To rest the Appellant’s case on the Respondent has its consequences which does not favour the Appellant or the accused as the case may be. It is a gamble for any accused to rest his case on the prosecution. Sometimes the gamble works but most times it does not. It is therefore always safer to put up a defence, the Court cannot force anyone to defend himself as he has the constitutional right to be salient. I will refer to a case or two on this point. In Agugua vs The State (2017-LPELR-42021-SC, the apex Court held:
“However, to emphasize the points made, I will add few words. The Appellant and one other accused person were charged with the offence of conspiracy and armed robbery. His statement to the Police which form part of the Prosecution’s case, was admitted in evidence after trial within a trial wherein both of them elected not to testify.
The Appellant also chose not to testify in his defence or call any witness in the main trial and the trial Court commenced as follows-
It is the view of this Court that considering the ample evidence adduced by the Prosecution against the accused persons, the silence of the second accused [the Appellant] throughout the trial — did not assist him in any way. It is rather a gamble, which [he] decided to undertake without success.
In agreeing with the trial Court, the Court below observed as follows –
It should be noted that the Appellant did not call any witness or testify on his own behalf at the trial. He therefore, played a gamble which was obviously fatal to his case.
As to his confessional Statement, the Court below further stated that –
I am not unmindful of the fact that the Appellant retracted his confession. I am also equally mindful of the fact that [he] retracted his confession which led the Court to conduct trial within trial. The Prosecution called three witness at the mini trial but the Appellant (then 2nd Accused) neither testified at the miniature trial nor called any witness and the Court unhesitatingly admitted the Statement in evidence since there was no evidence to weigh from the defence or to prove alleged involuntariness. Similarly at the substantive trial, [he] also did not call any witness to testify for his defence or testify on his own behalf for his defence. In short, he rested his case on that of the Prosecution, now Respondent. What a gamble!
The key word there is – gamble and the Appellant actually gambled, by remaining silent in the face of overwhelming evidence against him. It is true that he was not obliged to say anything at the trial because an accused person has the constitutional right to remain silent and leave the trial to the Prosecution to prove the charge alleged against him.
In effect, his right to remain silent, even when arraigned for a criminal offence, is an inviolable one. But he was taking a huge risk; the law says that he is obliged to make his defence, if his remaining silent will result in being convicted on the case made out against him. See Okoro v. The State (1988) 5 NWLR (Pt. 94) 255 at 266 SC. and Igabele V. The State (2006) 6 NWLR (Pt. 975) 100 at 133 SC.
The Appellant herein rested his case on that of Prosecution and was convicted for a lesser offence that was made out against him.
His situation emphasizes the vital importance of defence counsel knowing when it is imperative that an Accused person should testify, to explain particular aspects of the case, which he alone can explain. This is because resting the defence on the case of the Prosecution will not present the trial Court with any explanation or an alternative story. See Nwede v. The State (1985) 3 NWLR (Pt.13) 444 SC. See also Igabele v. State (supra) where this Court per Ogbuagu, JSC, stated –
It was for him to rebut the presumption that he committed the crime, at least, to cast a reasonable doubt on the prosecution’s case by preponderance of possibilities. But remarkably and significantly, his learned defence counsel, refused (as he was entitled to do as the master of his client’s case) to cross-examine some of the vital witnesses… He also refused the Appellant testifying and rested the case of the defence on that of the prosecution and thereby “drowning” the Appellant or letting him “stew in his own juice” so to speak/say.
In this case, there is no question that evidence against the Appellant, including his confessional Statement [Exhibit FI], is overwhelming, and his remaining silent in the face of that evidence, did not help him. In fact, the Appellant hobbled his own feet, and handicapped his case.”
Similarly in Adamu vs The State (2004) 4-5 SC 1, apex Court held:
“The law is generally settled, that an accused person who at the close of prosecution’s case decided to rest his case on that of the prosecution as presented against him is only exposing himself to risk and gamble. The reason being that if the case is such that even if all the prosecution witnesses are believed, yet the offence as charged is still not proved, then the accused may get away with the risk of resting his own case on that of prosecution. By that choice, the accused would have decided not to explain any fact in rebuttal of the allegation made against him. See Nwede v The State (1985) 3 NWLLR (Pt 13) 444, Ali & Anor v. The State (1988) 1 NWLR (pt 68) 1 and Magaji v The Nigerian Army (2008) 5 SCM 126.”
In my opinion, it is too late in the day for the Appellant in his brief to challenge any evidence including Exhibit A and A1 which is admitted, as the implication of resting its case on the Prosecution is that the Court is free and at liberty to act on the unchallenged evidence before it. See Ajibade vs The State (2013)) 6 NWLR (pt 1349) 25.

The lower Court has believed the story of the Respondent and therein convicted the Appellant. As earlier mentioned, the decision of the lower Court is based on the direct evidence of PW1 (the victim), the confessions statement of the accused (Appellant) and the circumstantial evidence of PW3. The Appellant’s appeal is predicated on the ground that, no conviction can be based on the uncorroborated unsworn evidence of the PW1, a minor. The lower Court had held that the evidence of PW3 corroborates the evidence of PW1. The lower Court is also of the view that Exhibit A and A1 are confessional statement of the Appellant which in the circumstances is the best evidence which corroborates the evidence of PW1. The Appellant retracted Exhibit A and A1. The law on retracted confessional statement is clear.

The fact that a statement is retracted does not make it inadmissible it can only affect the weight to be attached to it. See State vs Ibrahim (2019) 9 NWLR (pt 1676) 137, Adebanjo vs State (2019) 13 NWLR (pt 1688) 121, State vs Usman (2021) 16 NWLR (pt 1801) 73.

It is further a trite position of the law that a Court can safely convict on his confessional statement whether retracted or not, provided that it is direct and positive. See Fabiyi vs State (2015) 18 NWLR (pt 1490) 80, Smart vs State (2016) 9 NWLR (pt 1518) 447. The only caution however is that a Court should apply the veracity test before convicting an accused person based on the confessional statement or a retracted confessional statement. See Adebanjo vs State (supra), Afolabi vs State (2022) 2 NWLR (pt 1814) 201 and State vs Masiga (2018) 8 NWLR (pt 1622) 383.

Before I look at whether the lower Court applied the advisable though not mandatory or legal requirement of a veracity test, I must address a very important issue here. The question is, whether Exhibit A and A1 is a confessional statement within the meaning of Section 28 of the Evidence Act.

The law on confessional statement is clear. Section 28 of the Evidence Act, 2011 provides the definition of a confessional statement. The section provides thus:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the offence.”
This definition has received a lot of judicial pronouncement. I will look at a few of them. In Akpan vs. State (2001) 7 SC (Pt. II) 29, the apex Court per Karibi-Whyte, JSC held:
“Section 27(1) of the Evidence Act has defined “confession”, as “an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed the crime”. This definition is wide enough to cover both extra-judicial and judicial confessions. Extrajudicial confessions are those made otherwise than in the course of judicial proceedings.”
Similarly, in Nguma vs. AG Imo State (2014) 7 NWLR (pt 1405) 119; Okoro, JSC at pages 61-62 held:
“Section 27 (1) & (2) of the Evidence Act state as follows:-
“(1) Confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that offence.
(2) Confessions if voluntary are deemed to be relevant facts as against the person who made them only.” Thus, a confessional statement, if it is true, positive and direct becomes proof of an act. Also, where it is voluntarily made stating or suggesting the inference that an accused committed an offence for which he is charged, it is relevant and admissible against him provided the statement was not made as a result of any threat, promise or inducement from a person in authority. It has to be noted that any voluntary information given by the accused at any time during investigation which leads to the discovery of any fact material to the charge against him is equally admissible. See PETER vs. STATE (1997) 12 NWLR (Pt. 531) 1 at 22, FATILEWA vs. THE STATE (2008) 12 NWLR (Pt. 1101) 518, (2008) 4 – 5 SC (Pt. 1) 191.”
See also Onyenye vs. State (2012) 15 NWLR (PT1324)586, Lasisi vs. State (2013) 9 NWLR (Pt.1358) 745.
A confession is a statement made by the accused admitting that he committed the offence. This is a powerful piece of evidence against interest and it can form the basis of the conviction of an accused that made the confession. I must be quick to add that if confessional statement is admitted as a statement made voluntarily and seen to be cogent, it can be used as the sole ground to convict the accused. See Hassan vs State (2017)5 NWLR (pt 1557) 1.
To amount to a confessional statement the statement must be a confession from the person making the statement. To amount to confession, the Appellant in his statement must admit to committing the offence of rape he was charged for. This means that the admission must be clear on all the ingredients of the offence of rape and not on some ingredients of the offence. If the confession relates to some ingredient of the offence, that will not be a confession under the provision of Section 28 of the Evidence Act. See Ugboji vs State (2018) 10 NWLR (pt 1627) 346, Idoko vs State (2018) 6 NWLR (pt 1614) 117 and Dairo vs State (2018) 7 NWLR (pt 1619) 399.

I have looked at the statement made by the Appellant which both the lower Court and the Respondent called confessional statement. I do think agree with the lower Court that Exhibit A1 is a confessional statement within the provision of Section 28 of the Evidence Act. I hereby reproduce the statement of the Appellant:
“On Friday, 14/09/2018 around 1400 hours, I collected two pure water and gave her N50 but she said she have (sic) no change so I told her to come back later, around 0500pm she came back and asked for her money I told her I have spent the N50 but I have N100 note the girl said she had no change still, so I told her to go I will give her the next day but she said no she lost N150 out of her sales for the day, while I was going home, the girl followed me to a maize farm. I told her I will give her N300 if she will accept me to have sex with her, so we entered the maize farm she removed her trouser and I lay her on the ground brought out my penis and had sex with her. I released half of my sperm in her vagina and half outside.”

In the statement, the Appellant admitted having sex with the PW1 but did not admit that the PW1 did not consent to it. The area of difference between the statement of the Appellant and the PW1 evidence is whether there was consent. The Appellant said the PW1 consented but PW1 said she did not consent but rather was forced. The issue of consent is key in cases of unlawful carnal knowledge. It is the issue of consent which makes the act lawful or unlawful. It is not an offence if it is lawful in which case it means that the prosecutix consented. It is unlawful when the prosecutix did not consent. The major point to look for in a statement to be called a confessional statement is whether in the statement the person making the statement admitted that he had knowledge of the victim without her consent. If the accused as in this case is challenging the issue of consent, it cannot be said he has admitted the offence. In Exhibit A1, the Appellant admitted having sex with the PW1 but went on to say that she consented. This ordinarily should be a major game changer but based on the provision of Section 282 of the Penal Code Law this is not an issue. I will consider this in greater detail later in this judgment. In the circumstance, it cannot be correct to say that Exhibit A1 is a confessional statement. The statement did not meet the condition of confessional statement as the Appellant did not admit liability. In the circumstance, there is no need to apply the veracity test.

The only direct evidence is the evidence of the victim, PW1. The lower Court took the evidence of PW1 seriously. It is however not correct that the decision of the lower Court was based solely on the evidence of PW1.

It is my view that there is some form of corroboration from the Appellant’s statement where he admitted having carnal knowledge of the PW1. Whether it is unlawful, I will consider later in this judgment, but for now I will not agree with the Appellant’s counsel that there is no corroboration of PW1’s evidence.. The lower Court said this much at page 69 of record when his Lordship rightly held:
“This Court agrees totally with learned counsel to the prosecution that the Court can convict alone with these Exhibits taking into account the other pieces and evidence which corroborated the confessional statement of the accused person. I agree entirely and totally with the contention of learned counsel for the prosecution that from all the above pieces of evidence of PW1-PW4 and Exhibit A & A1 are not only conversant but corroborated one another which is positive and consistent with one and another and harmonious evidence of act of the accused person leading to the fact that the accused rape Hajara Haruna within the meaning of S.282 of the Panel (sic) Code.”

I agree with the lower Court that the Appellant’s statement corroborated the evidence of PW1 and therefore it is wrong for the Appellant’s counsel to submit that the conviction of the Appellant is based on the uncorroborated unsworn evidence of PW1.

Let me turn to the evidence of PW3. The Appellant’s counsel made great force out of the fact that PW3 evidence is hearsay since he was not there when the act the Appellant admitted to took place. All the effort counsel made was trashed by Exhibit A1 when the Appellant himself admitted having carnal knowledge of PW1.

I had mentioned above that criminal liability can be established by circumstantial evidence. Once the circumstance surrounding the commission of the offence, points unequivocally to the Appellant as the person who committed the offence, conviction can be based on it. The law is trite on this point. In Abokokuyanro vs State (2016) 2-3 S.C. (pt III) 128, the apex Court held thus:
“The law is trite and well settled that for circumstantial evidence to ground a conviction, it must lead only to one and only one conclusion, namely, the guilt of the accused person. However and where there appear to be other probabilities in the case that could give a possible likelihood that another person other than the accused, was likely to have committed the offence, i.e to say suggesting that another person different from the accused had the opportunity of committing the offence with which the accused was charged, the conviction of the accused for murder cannot be sustained.”
In other words, in order for the prosecution to succeed in proof of an offence based on circumstantial evidence, it must be found to be positive, compelling and also with scientific precision, point to the guilt of the accused person.

The evidence of PW3 corroborates the PW1 evidence and indeed Exhibit A1. PW3 evidence is that he and his friend had a shout and noise from the maize farm. They got there and saw PW1 lying down. When they asked her what happen, she pointed to the Appellant who was trying to run away whom they arrested. The Appellant admitted to having carnal knowledge of the PW1 who told them that Appellant had knowledge of her. They arrested the Appellant and took him to their office and to the police station. Based on the admission of the Appellant before PW3 and in Exhibit A & A1 that he had carnal knowledge of the PW1, the proof of the offence by circumstantial evidence is established.

There is enough corroboration of the evidence of PW1 before the lower Court to make it arrive at the decision it did. There is no dispute that there is enough evidence that the Appellant had carnal knowledge of the PW1. The main issue here is whether the carnal knowledge is lawful or unlawful. If it is lawful, the appeal will be allowed but if it is unlawful the appeal will be dismissed.

This now takes me to Section 282 of the Penal Code. The section provides thus:
(1) A man is said to commit rape who, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any if the following circumstances:
(a) against her will
(b) without her consent
(c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt.
(d) with her consent, when the man knows that he is not her husband and that the consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married with or without her consent, when she is under fourteen years of age or of unsound mind.
(2) sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.
Explanation: mere penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

The question whether it is lawful or not is a function of consent. The Appellant in Exhibit A1 is saying though he had carnal knowledge of the PW1 but he is not liable because she consented to the act. The prosecution case is that the PW1 did not consent. In such a situation, the general position of the law is that the onus is on the Appellant to prove that PW1 consented in the light of his conceding to the fact that he has carnal knowledge of her. The Appellant could not discharge the burden placed on him by law since he did not call any witness. In resting his case on the prosecution he has called on the lower Court to believe the story of the prosecution. In doing that, I cannot fault the decision of the lower Court that the prosecution had proved his case beyond reasonable doubt.

The trial Court found the Appellant guilty as charged and convicted him accordingly to 10 years imprisonment. Dissatisfied, the Appellant appealed to the Court of Appeal, the Appellate Court affirmed the trial Court’s decision. Dissatisfied the Appellant appealed to the Supreme Court.
The Court held that the act of rape is by nature unlawful because the concept involves an aggressive carnal knowledge of a female without her consent. Consent in this context must be devoid of any form of external influence. A child who is under age is not however capable of giving consent. Rape by nature is grave, devastating and traumatic. It also reduces the totality of the victim’s personality. Several definitions given to rape are all characterized by an absence of consent as a common feature. – Elias JSC.
It was on this ground, that the appeal was dismissed.”

I resolve the sole issue in favour of the Respondent.

On the whole, this appeal fails and it is dismissed. The judgment of Hon. Justice J. A. Awak in affirmed and upheld.

JUMMAI HANNATU SANKEY, J.C.A.: I have read in advance the judgment just delivered by my learned brother, Ebiowei Tobi, J.C.A. I agree with his reasoning and conclusion and will only add a few words in furtherance of my agreement.

The Appellant was charged of rape punishable under Section 283 of the Penal Code. The facts disclosed through the evidence of PW1, PW2 and PW3 is that he lured the victim, Rabi, a 12-year-old, into a maize farm where he had sexual intercourse with her. The victim testified as to this and her evidence found corroboration in the evidence of PW3. He was a member of the vigilante who stumbled on the scene. He was nearby the maize farm when he heard sound coming from the direction. Upon investigation, he found PW1 lying on the ground and saw the Appellant fleeing from the scene.

The evidence before the Court is that the victim, PW1 was twelve years at the time of the commission of the offence, Thus, by Section 209(3) of the Evidence Act, it required corroboration. For ease of reference, it states –
(3) “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 the instant case, the requisite corroboration was supplied by both the confessional statement of the Appellant which was unequivocal, and the evidence of PW3 who came on the scene and saw the Appellant fleeing while PW1 was lying on the ground in the maize farm. The learned trial Judge therefore rightly acted on her evidence, notwithstanding her tender age.

Also, Section 282 of the Penal Code defines what constitutes the offence of rape as follows:
“282. (1) A man is said to commit rape who, save in the case referred to in Sub-section (2), has sexual intercourse with a woman in any of the following circumstances –
(a) Against her will;
(b) Without her consent;
(c) With her consent when her consent has been obtained by putting her in fear of death or of hurt;
(d) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(e) With or without her consent, when she is under fourteen years of age or of unsound mind;” (Emphasis supplied)

In the instant case, it was established that the victim, PW1, was twelve years old at the time of the commission of the offence. Therefore, being under fourteen years of age, the issue of consent does not arise and is irrelevant. As long as it is established that the Appellant had sexual intercourse with PW1, a 12-year-old, it amounted to rape, without more.

In addition, the confessional statement of the Appellant, Exhibits A and A1 (the Hausa and English language versions), were admitted in evidence during the trial. Upon their being tendered, the Appellant denied making the statement. It is however noteworthy that since the Appellant rested his case on that of the prosecution and so did not testify, the statement was not retracted on oath or affirmation.

Contrary to the submission of the Appellant’s Counsel however, a confessional statement which is direct, positive and unequivocal is sufficient to establish the guilt of the Appellant. It is also enough to ground a conviction, notwithstanding that it was retracted by the Appellant.

In the confessional statement, the Appellant unequivocally admitted to committing the offence of rape that he was charged with. Exhibit A& A1 also disclosed facts pointing to its veracity and facts in agreement with the testimony of PW1. Consequently, the confessional statement was direct, cogent and unequivocal leaving no reasonable doubt that the Appellant indeed committed the heinous offence of rape, violated and took away the innocence of PW1, a twelve-year old girl. The trial Court was therefore right when it rejected the contention of the Appellant’s Counsel that the statement should not be relied upon for lack of corroboration.

Additionally, the law is settled that a retraction or denial of a confessional statement does not affect its admissibility. Thus, the mere fact that a confessional statement is challenged on the ground that the accused person did not make the statement, does not render it inadmissible in evidence. In such a situation, the application of the following principles should be considered in determining whether or not to believe and act on a confession which an accused person has resiled from:
a) Whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way;
b) Whether its contents, if tested could be true;
c) Whether the defendant had the opportunity of committing the alleged offence; or
d) Whether the confession is possible and the consistency of the said confession with other facts that have been established.
When a confession is subsequently retracted, the effect is that it throws the believability of the narration in the confession into doubt. This does not however make the retracted confession inadmissible. Instead, the six-way test is for the purpose of attaching weight or credibility to the retracted confession.
As stated by the Supreme Court in Yahaya V State (2018) 16 NWLR (Pt. 1644) 96, 110 (SC), the rationale for the test is that the case consists of two halves, and each half is insufficient to justify a conviction on its own. In other words, it would be unsatisfactory to convict on the available evidence if it wasn’t buttressed by the confession and it would have probably been unsatisfactory if the conviction had rested on the confession alone without circumstances which make it probable that the confession was true.

In the instant case, the Exhibits A and A1, the Hausa and English language versions of the statement, is amply corroborated by the narration of the incident of rape by PW1. Consequently, the trial Court was bound to consider its probative value vis-a-vis the maker’s retraction of it subsequently. Thus, the Appellant’s mere retraction of Exhibit A and A1 does not make it inadmissible – Iweka V State (2013) 3 NWLR (Pt. 1341) 285; Osetola V State (2012) 17 NWLR (Pt. 1329) 251; Oseni V State (2012) 5 NWLR (Pt. 1239) 351; Eke V State (2011) 3 NWLR (Pt. 1235) 589); Ekpe V State (1994) 9 NWLR (Pt. 368) 263.

The law is also settled that a confessional statement is often the best evidence of the commission of a crime for it states, in the accused person’s own words, the role he played and constitutes an acknowledgement of guilt. In the instant case, the Appellant made the confessional statement, Exhibit A& A1, narrating how he committed the offence -Yahaya V State (2018) 16 NWLR (Pt. 1644) 96, 110 (SC); Afolabi V State (2016) 11 NWLR (Pt. 1524) 497; Asimi V State (2016) 12 NWLR (Pt. 1527) 414; Fabiyi V State (2015) 18 NWLR (Pt. 1490) 80; Musa V State (2013) 9 NWLR (Pt. 1359) 214.
Furthermore, it is also the law that the confessional statement of an accused person alone is sufficient to ground a conviction. A confession alone, properly proved, is enough to ground a conviction, even without corroboration. Thus, an uncorroborated confessional statement of an accused person can be acted upon, without more. Nonetheless, it is advisable to look for some evidence outside the confessional statement which makes it probable that the confession is true.
In the instant case, firstly, the Appellant confessed in his confessional statement to raping the PW1 on the date in question. Secondly, PW1, the victim of the rape, gave explicit testimony of the way and manner the Appellant tricked her into going into the maize farm and raping her. She therefore gave credible evidence which aligned with and affirmed the contents of Exhibit A & A1, and vice versa. This is in addition to the circumstantial evidence from PW3 who saw him fleeing from the scene and the PW1 lying on the ground. The trial Court was therefore right to have acted on the Appellant’s confessional statement to convict him – Isah V State (2012) 16 NWLR (Pt. 1327) 613.

It is for this reason and the more detailed reasons in the lead judgment that I find no merit in the appeal. It fails and is dismissed.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, EBIOWEI TOBI, JCA, just delivered.

I agree completely with the reasoning and conclusions arrived at in the judgment that the appeal lacks merit. It is for the reasons therein contained in the judgment that I also dismiss the appeal as lacking in merit. Consequently, the judgment of the lower Court delivered on the 11th January, 2021, by Hon. Justice J. A. Awak, J (as he then was) is hereby affirmed.