ISAH v. STATE
(2022)LCN/16886(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Wednesday, June 22, 2022
CA/K/179/C/2016
Before Our Lordships:
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
SALE ISAH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
The burden of proving the commission of a crime is on the prosecution who must prove the charge against the accused person beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. By proof beyond reasonable doubt, the law insists that every ingredient of the offence with which the accused is charged with must be proved by the prosecution. Failure to prove any of the ingredients would result in the acquittal of the accused person. See OBI vs. THE STATE (2013) 5 NWLR (PT. 1346) 68; BABATUNDE VS. THE STATE (2014) 2 NWLR (PT. 1391) 298 and SABASTINE VS. THE STATE (2020) LPELR 50319.
The burden placed on the prosecution is however, not proof beyond all shadow of doubt, for absolute certainty is impossible in criminal trials except on certain exceptional circumstances. Once the evidence is so strong against an accused as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, the case is said to be proved beyond reasonable doubt; in other words, this can also be attained by proof of all the ingredients of the offences. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL ER 372; ISAH VS. THE STATE 2018) 8 NWLR (PT. 1621) 346; EZEANI VS. FRN (2019) 12 NWLR (PT. 1686) 221 and PHILIP VS. THE STATE (2019) 1 3 NWLR (PT. 1690) 209.
The prosecution is at liberty to prove its case by calling eyewitness(s) to the commission of the offence; or by circumstantial evidence; or by a confessional statement made by an accused person. The prosecution can rely on any of the three modes or all of them to prove its case. See ADIO VS. THE STATE (1986) 5 SC 94; ABIRIFON VS. THE STATE(2013) LPELR 20807; GARBA VS. FRN (2014) LPELR 24591 and MUSA VS. THE STATE (2014) LPELR 22912. PER LAMIDO, J.C.A.
THE DEFINITION OF THE OFFENCE OF RAPE
Rape has been defined as an unlawful carnal knowledge of a woman or a girl by a man without her consent or with her consent if her consent is obtained by force or by means of threat or intimidation of any kind or by fear of harm or by means of false act or when the girl is below 14 years of age and in case of a married woman by personating her husband. See POSU VS. THE STATE (2011) 2 NWLR (PT. 1234) 392.
In a charge of rape contrary to Section 283 of the Penal Code, the prosecution must prove the following ingredients of the offence:-
i. That the accused has sexual intercourse with a woman or girl;
a. against her will,
b. without her consent,
c. 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,
d. with or without her consent when she is under 14 years of age or of unsound mind.
ii. That the woman was not the wife of the accused or if she is his wife that she had not attained puberty.
iii. That there was penetration.
The prosecution must prove all the ingredients listed above in order to secure a conviction. PER LAMIDO, J.C.A.
THE POSITION OF LAW ON CONDUCTING A TRIAL WITHIN TRIAL
A trial within a trial is a mini-trial conducted by the trial Court where there is an objection to the admission of the accused person’s extra-judicial statement made to the Police on the ground of involuntariness. The involuntariness of an extra-judicial statement could take the form of duress, coercion, threat, torture or promise of advantage made to the accused person by the Police. Thus, the law stipulates that a trial within a trial is conducted within the main trial to establish the fact that the statement was voluntarily made by the accused. This is in tandem with the established evidential principle that he who asserts must prove. As the prosecution asserts the voluntariness of the said statement, it is duty bound to prove same. In SANI vs. THE STATE (2020) LPELR 53905 AT 8-9; Rhodes-Vivour, JSC held that:-
“if on the other hand, the accused person objects to the confession on the ground that it was not voluntary i.e he was forced or induced to make the statement. That is to say, it was beaten out of him, then a trial within a trial or mini-trial was held to determine whether or not the confession was voluntary. If at the end of the trial within a trial, it is found that the confession was voluntary, it would be admitted as an exhibit”.
See GBADAMOSI VS. THE STATE (1992) 9 NWLR (PT.266) 465; LATEEF VS. FRN (2010) 37 WRN 85; BABARINDE VS. THE STATE (2014) 3 NWLR (PT. 1395) 568 and ALIU VS. THE STATE (2021) LPELR 53354. PER LAMIDO, J.C.A.
ABUBAKAR MU’AZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court delivered by Aisha R.D. Muhammad, J. on 20th March, 2013. The accused/appellant was arraigned before the High Court on a single count of rape contrary to Section 283 of the Penal Code. The charge against the accused/appellant is hereunder reproduced
“That you Sale Isa of Garindau village, Warawa Local Government Area of Kano State on or about 20th May, 2010 at Garindau village within Kano Judicial Division, did commit the offence of rape to wit: you had an unlawful sexual intercourse with one Amina Mustapha aged 10 years and thereby committed an offence punishable under Section 283 of the Penal Code”.
The accused person/appellant pleaded not guilty and in proof of its case the prosecution called four witnesses and tendered in evidence four exhibits. The accused/appellant testified in his defence and called no other witness. At the conclusion of trial, the learned trial Judge convicted the accused/appellant as charged and sentenced him to 14 years imprisonment with hard labour.
Dissatisfied with his conviction and sentence, the accused/appellant filed his notice of appeal and later amended same on 10/03/2021 but deemed on 13/07/2021. The amended notice of appeal contained five grounds reproduced hereunder:-
GROUND 1
The learned trial Judge erred in law in holding that, “the evidence of PW1 who is the victim … is direct and cogent and is of probative value having not been destroyed as a result of cross-examination” and thereby wrongly found “the 1st and 2nd ingredients of Rape proved by the Prosecution”.
GROUND 2
The learned trial Judge erred in law in holding that the retracted confessional Statements of the Appellant (Exhibits A1, A2 and C) were “given voluntarily without any fear of bodily injury as a result of torture or promise by any Person in authority “and thereby wrongly acted upon and accorded probative value to the confessional statements to convict the Appellant of the offence of rape.
GROUND 3
The learned trial Judge erred in law in holding that:
“On the whole, going by the evidence adduced by the Prosecution and that adduced by the Accused, I find the pendulum of justice lifts towards the case of the prosecution. I find the Accused has failed to defend the case and the evidence adduced by the prosecution against him. I find the Prosecution has proved its case beyond reasonable doubt. I therefore convict the Accused Person for the offence of Rape Punishable under Section 283 of the Penal Code.”
GROUND 4
The learned trial Judge erred in law and misdirected himself in relying on the Confessional statements of the Appellant when he held thus:
“However, throughout the trial, there was never any Allegation of torture, coercion, duress or oppression made by the Accused Person. The Accused had not made any assertion that he was tortured or put under any fear or duress in any of the Police Station in his evidence in chief or under cross-examination. Therefore, the raising of this in the Counsel’s address when it was not raised in the Accused testimony is definitely not an issue for which the Court will look at. I therefore discontinuance (sic) the allegation by the defence Counsel that the confessional statement was obtained as a result of duress, torture or coercion by the IPO. I find Exhibit A1 & A2 & C were voluntarily made by the Accused person”.
GROUND 5
The learned trial Judge erred in law when he accepted the evidence of PW1, PW3 and discarded the oral testimony of DW1 without a certificate showing that Section 242 of the Criminal Procedure Code was fully complied with before accepting or rejecting any of the pieces of evidence.
The Appellant filed his brief of argument on 13/12/2019 but it was deemed filed on 20/04/2020. The Appellant also formulated two issues for determination. The issues are:-
1. Was the learned trial Judge wrong in admitting Exhibits A1, A2 and C in evidence and relying upon them to convict the Appellant?
2. Whether the prosecution did not prove the Appellant’s guilt beyond reasonable doubt as required by law.
The Respondent’s brief of argument was filed on 31/03/2021 but deemed filed on 13/07/2021. The Respondent formulated three issues for determination. The issues are:-
1. Whether the lower Court was right when it held that the Respondent has proved the offence of rape against the Appellant beyond reasonable doubt.
2. Whether a wrongful admission of Exhibit A1 and A2 in evidence will constitute a ground for reversing or quashing the decision of the lower Court.
3. Whether it is necessary to call the investigating Police officer who recorded Exhibit C before it can be tendered in evidence.
In arguing issue one, learned Counsel for the Appellant Inam Wilson, Esq., submitted that Exhibits A1, A2 and C were tendered through PW4 the IPO but despite an objection that the Appellant did not author the said statements voluntarily the trial Court admitted the statements, while Exhibit C was objected to on the ground that PW4 was neither the maker nor the recorder of the statement. The onus of securing the admissibility of a confessional statement lies on the prosecution and it is only discharged where the prosecution is able to prove that the statement was voluntarily made. He referred to Section 29(2) of the Evidence Act; State vs. Salawu (2011) 18 NWLR (PT. 1279) 8835; OBIDIOZO VS. THE STATE (1987) 4 NWLR (PT. 67) 748 and EFFIONG VS. THE STATE (1998) 8 NWLR (PT. 562) 362.
He argued that strict adherence to the provisions of Section 29 of the Evidence Act is of such a fundamental nature that even where the Court in complying with it shifts the burden of proving its voluntariness to the accused, though a trial within a trial is conducted, it would still be void and such confessional statement so admitted is still subject to be thrown out as failure to adopt the right procedure is fatal and incurable. He referred to GBADAMOSI VS. THE STATE (1992) 9 NWLR (PT. 266) 465; AUTA VS. THE STATE (SUPRA); NWACHUKWU VS. THE STATE (2002) 2 NWLR (PT. 751) 366; EKURE VS. THE STATE (1999) 13 NWLR (PT. 635) 456; USMAN VS. THE STATE (2010) 6 NWLR (PT. 1191) 454; DAIRO VS. FRN (2012) 16 NWLR (PT. 1325) 129 and BRIGHT VS. THE STATE (2012) 8 NWLR (pt. 1302) 297. He also stated that failure of the trial Court to conduct a trial within trial by adopting a procedure unknown to law and discarding the burden of proof placed on the Respondent in proving the voluntariness of Exhibits A1 and A2 is faulty.
He argued further that the admission of Exhibits A1 and A2 is perverse and occasioned a grave miscarriage of justice against the Appellant and this Court is entitled to expunge the evidence from the records. Although, it is not enough for the purpose of seeking a reversal of judgment on wrongful admission of evidence, it is the law that an Appellant making the complaint has a duty to show that without such evidence, the decision complained of would have been otherwise. He referred to ARCHIBONG vs. THE STATE (2006) 14 NWLR (PT. 1000) 349; AKPAN VS THE STATE (1994) 9 NWLR (PT. 368) 347 and Section 251 of the Evidence Act.
Counsel also argued that Exhibit C was admitted in disregard of the law governing admissibility of documents. Though, Exhibit C was made at Warawa Police Station it was not tendered through the officer who recorded same but through PW4 a Police officer from the SCID. The Respondent did not lay any foundation as to why the recorder of the statement could not be called to testify. The law is settled that where foundation is not laid and the document is wrongly admitted, same is subject to be expunged from the records of the Court. He referred to JACOB VS AG. AKWA IBOM STATE (2002) 7 NWLR (PT. 765) 18. He also stated that Sections 39, 40 and 50 of the Evidence Act relied upon by the trial Court has no bearing with the situation at hand. Exhibit C is inadmissible and is at best a documentary hearsay. He referred to OKEREKE VS. UMAHI SCZ1004/2015; ABADOM VS. THE STATE (1997) 9 NWLR (PT. 479) 1 and ALL STATES TRUST BANK PLC VS. REGD. TRUSTEES OF MISSION HOUSE INTL. & ORS. (2018) LPELR 44349. He urged the Court to expunge Exhibits A1, A2 and C from the record.
On issue two, he submitted that in criminal trials, the burden of proof is always on the prosecution. The prosecution must prove the allegation against the accused beyond reasonable doubt. He referred to OKOH vs. THE STATE (2014) 8 NWLR (PT. 1410) 502 and Section 138 of the Evidence Act. The whole ingredients of a particular offence with which the accused is charged with must be established by the prosecution with credible evidence. He referred to MICHAEL vs. THE STATE (2008) 13 NWLR (PT. 1104) 361 and AIGBADION VS. THE STATE (2000) 7 NWLR (PT. 666) 686.
He argued that the prosecution failed to prove the ingredients of the offence of rape and the trial Court was wrong to have convicted the Appellant for the offence of rape. Penetration is one of the most important ingredient of the offence which the prosecution failed to prove. He referred to OGUNDAYO vs. THE STATE (2007) SC (PT. II) 1. In the case at hand, the trial Court relied on the evidence of PW1, a child of 10 years and accepted the evidence and held that Exhibits A1, A2, B and C and the evidence of PW3. He stated that Section 209 of the Evidence Act stipulates some conditions which must be satisfied for a Court to admit the unsworn evidence of a child. The trial Court failed to ask the witness the required preliminary questions to determine whether she understands the nature of the questions being put to her and if she can give rationale answers and whether she is aware of a duty of telling the truth. This is fatal to the testimony of the child witness.
Counsel argued that the admissibility of the confessional statement in Exhibits A1 and A2 has been challenged earlier, and what is left as evidence of corroboration remain the evidence of PW3 who is the father of the prosecutrix and exhibit B, the medical report. The law is trite that for a piece of evidence to qualify as corroborative of another, the evidence of itself must be independent and extraneous to the evidence it seeks to corroborate and it must connect and independently indict or identify the accused person as the perpetrator of the crime. He referred to ADEDARA vs. THE STATE (2009) 52 WRN 62 AND IKO VS. THE STATE (2001) 14 NWLR (PT. 732) 221. He also argued that Exhibit B does not in any way qualify as a corroborative evidence because the report in the document does not suggest that the Appellant raped the prosecutrix. He referred to OKPANIFE vs. THE STATE (1969) 1 ALL NLR 420. Furthermore, Exhibit B was not tendered through its maker and is thus inadmissible.
Counsel argued that failure of the Respondent to call vital witnesses to testify is fatal to its case. First, he stated that PW1 who testified that she was playing with her friends when the Appellant came and bundled her away. The Respondent failed to call any of PW1’s friends who was present to testify and secondly, PW3 testified that the Appellant confessed to have raped PW1 in the presence of Police officers and yet none of the officers was called to testify by the Respondent. The absence of these witnesses is fatal to the case of the Respondent. He referred to THE STATE VS. NNOLIM (1994) 5 NWLR (PT. 345) 394 and OGUDO vs. THE STATE (2011) LPELR and Section 167 (d) of the Evidence Act.
He further argued that the trial Court did not comply with the provision of Section 242 (2) of the Criminal Procedure Code by failing to attach a certificate showing that an interpreter was used in the taking of evidence of PWs1-3. Failure to comply with the provision and Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) amounted to a breach of the Appellant’s right to fair hearing. He referred to ANYANWU VS. THE STATE (2002) 13 NWLR (PT. 783) 107.
In arguing the issues formulated in the Respondent’s brief, learned Counsel for the Respondent Halima Y. Ahmad (Mrs) submitted that the Respondent has proved all the ingredients of the offence of rape as enshrined in Section 282 (1) of the Penal Code. That the most important ingredient of the offence is penetration no matter how slight which is sufficient to ground a conviction. He referred to IKO VS. THE STATE (2001) NWLR (PT. 732) and MUSA vs. THE STATE (2003) LPELR 1993. He also stated that it is not necessary for the Respondent to prove any injury or rapture of the hymen. He referred to OGUNBAYO vs. THE STATE (2002) NWLR (PT. 15S0) 80. Exhibit C reveals that the hymen of PW1 was broken and there is proof of sexual assault on her. Thus, penetration as an ingredient of the offence of rape has been proved.
On corroborating the evidence of the prosecutrix, he argued that it does not consist of direct evidence that the accused committed the offence nor does it amount to a confirmation of the whole account given by the witness provided that it corroborates the evidence in some material respect to the charge. He referred to AHMED vs. the STATE (2011} NWLR (PT. 1227) 89 and DAGAYYA VS. THE STATE (2006) 7 NWLR (PT. 98) 647. He further argued that corroboration is not a requirement of the law in cases of rape but only a matter of practice. He referred to MUSA VS. THE STATE (SUPRA).
On issue two, he submitted that even if Exhibits A1 and A2 were wrongly admitted in evidence, that would not be a ground for reversing the decision of the trial Court except where the evidence will affect the decision of the Court or it would lead to a miscarriage of justice. He referred to THE STATE vs. OGBOBUNJO (2001) LPELR 3223 and DAVOU VS. COP PLATEAU STATE COMMAND (2019) LPELR 47034.
On issue three, he argued that the purpose of calling the witness was to tender the statement of the Appellant and a trial Court may dispense with the appearance of the person who recorded or made a document. He referred to MAGAJI VS. NIGERIAN ARMY (2008) ALL FWLR (PT. 420) 603. This is so because a document can be tendered even in the absence, of the maker by a person who is in custody of the document. He cited in aid OMALE vs. FED. MINISTRY OF LAND, HOUSING & DEVELOPMENT (2015) LPELR 25096. He argued that once a document is relevant, it is admissible in law. Exhibit AC being a confessional statement made by the Appellant is relevant and thus admissible. He referred to MAGAJI vs. NIGERIAN ARMY (SUPRA) and THE STATE VS. GWANGWAN (2015) LPELR 24837.
I have gone through the numerous issues formulated for the determination of this appeal by parties and in my humble view, a single issue for determination is capable of determining the fate of this appeal. The issue is:-
Whether the trial Court was right to convict the Appellant for the offence of rape on the strength of the evidence adduced by the Respondent.
In the determination of the above issue, all the complaints and argument of the Counsel will be duly considered.
From the record of appeal before us, it can be seen that the prosecutrix who testified as PW1 was playing with her mates outside their house when the Appellant came, grabbed her scarf and tied her mouth with it to prevent her from screaming and picked her on his motorcycle to his house where he undressed her and had carnal knowledge of her. When she came out she saw two girls who asked why she was crying and she narrated to them what happened. She went back home and when her father returned from the market she narrated what happened and he suggested the Police will be involved the next morning. The next morning, the father who testified as PW3 reported to the Police who invited the Appellant. According to PW3 the Appellant apologized to him at the Police State and told him he didn’t know that the prosecutrix is his daughter.
PW2 was one of the girls who saw the prosecutrix crying and she narrated what happened but she did not observe any injury on the prosecutrix because it was dark. While PW4 is the investigation Police officer who tendered in evidence the extra-judicial statements made by the Appellant both at the Divisional level and at the SCID office. He also tendered in evidence the medical report obtained from a hospital. It should be noted that the statement made by the Appellant at the SCID office was objected at the point of tendering on the ground of duress. While the Divisional extra-judicial statement made by the Appellant was objected on the ground that PW4 who was not the recorder of the statement cannot tender same in evidence. On the first ground of objection, the trial Court did not conduct a trial within a trial on the ground that a Practice Direction has abolished same in Kano State. The trial Court convicted and sentenced the Appellant for the offence of rape.
Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that every person charged with a criminal offence shall be presumed innocent until his guilt is proven.
The burden of proving the commission of a crime is on the prosecution who must prove the charge against the accused person beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. By proof beyond reasonable doubt, the law insists that every ingredient of the offence with which the accused is charged with must be proved by the prosecution. Failure to prove any of the ingredients would result in the acquittal of the accused person. See OBI vs. THE STATE (2013) 5 NWLR (PT. 1346) 68; BABATUNDE VS. THE STATE (2014) 2 NWLR (PT. 1391) 298 and SABASTINE VS. THE STATE (2020) LPELR 50319.
The burden placed on the prosecution is however, not proof beyond all shadow of doubt, for absolute certainty is impossible in criminal trials except on certain exceptional circumstances. Once the evidence is so strong against an accused as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, the case is said to be proved beyond reasonable doubt; in other words, this can also be attained by proof of all the ingredients of the offences. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL ER 372; ISAH VS. THE STATE 2018) 8 NWLR (PT. 1621) 346; EZEANI VS. FRN (2019) 12 NWLR (PT. 1686) 221 and PHILIP VS. THE STATE (2019) 1 3 NWLR (PT. 1690) 209.
The prosecution is at liberty to prove its case by calling eyewitness(s) to the commission of the offence; or by circumstantial evidence; or by a confessional statement made by an accused person. The prosecution can rely on any of the three modes or all of them to prove its case. See ADIO VS. THE STATE (1986) 5 SC 94; ABIRIFON VS. THE STATE(2013) LPELR 20807; GARBA VS. FRN (2014) LPELR 24591 and MUSA VS. THE STATE (2014) LPELR 22912.
The Appellant was convicted for the offence of rape contrary to Section 283 of the Penal Code. Rape has been defined as an unlawful carnal knowledge of a woman or a girl by a man without her consent or with her consent if her consent is obtained by force or by means of threat or intimidation of any kind or by fear of harm or by means of false act or when the girl is below 14 years of age and in case of a married woman by personating her husband. See POSU VS. THE STATE (2011) 2 NWLR (PT. 1234) 392.
In a charge of rape contrary to Section 283 of the Penal Code, the prosecution must prove the following ingredients of the offence:-
i. That the accused has sexual intercourse with a woman or girl;
a. against her will,
b. without her consent,
c. 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,
d. with or without her consent when she is under 14 years of age or of unsound mind.
ii. That the woman was not the wife of the accused or if she is his wife that she had not attained puberty.
iii. That there was penetration.
The prosecution must prove all the ingredients listed above in order to secure a conviction.
In proof of the charge against the Appellant, the Respondent called four witnesses and tendered in evidence the extra-judicial statements of the Appellant in Hausa language and its English translation as Exhibits A1 and A2; the medical report Exhibit B and extra-judicial statement of the Appellant made at Warawa Police Station, Exhibit C. The Appellant testified in his defence and called no other witness. With respect to Exhibits A1 and A2 which were objected to on the grounds of duress, the trial Court held thus:-
Trial within trial has been abolished in Kano State. You are only to refer to this in your final address, therefore the statement of the accused person.
Learned Counsel for the Appellant submitted that failure of the trial Court to conduct a trial within trial has offended an established practice of ascertaining the voluntariness of a confessional statement through a trial within a trial and the reliance by the trial Court of a Practice Direction abolishing trial within a trial is wrong.
A trial within a trial is a mini-trial conducted by the trial Court where there is an objection to the admission of the accused person’s extra-judicial statement made to the Police on the ground of involuntariness. The involuntariness of an extra-judicial statement could take the form of duress, coercion, threat, torture or promise of advantage made to the accused person by the Police. Thus, the law stipulates that a trial within a trial is conducted within the main trial to establish the fact that the statement was voluntarily made by the accused. This is in tandem with the established evidential principle that he who asserts must prove. As the prosecution asserts the voluntariness of the said statement, it is duty bound to prove same. In SANI vs. THE STATE (2020) LPELR 53905 AT 8-9; Rhodes-Vivour, JSC held that:-
“if on the other hand, the accused person objects to the confession on the ground that it was not voluntary i.e he was forced or induced to make the statement. That is to say, it was beaten out of him, then a trial within a trial or mini-trial was held to determine whether or not the confession was voluntary. If at the end of the trial within a trial, it is found that the confession was voluntary, it would be admitted as an exhibit”.
See GBADAMOSI VS. THE STATE (1992) 9 NWLR (PT.266) 465; LATEEF VS. FRN (2010) 37 WRN 85; BABARINDE VS. THE STATE (2014) 3 NWLR (PT. 1395) 568 and ALIU VS. THE STATE (2021) LPELR 53354.
As can be seen from the record of appeal, the Appellant objected to the admissibility of Exhibits A1 and A2 on the ground of duress but the trial Court declined to conduct a trial within a trial on the strength of Practice Direction of 2008 abolishing same, thus relieving the prosecution of its burden to prove the voluntariness of the statement beyond reasonable doubt.
Now, a Practice Direction is akin to a subsidiary legislation by the operation of Section 18 of the Interpretation Act and like all other subsidiary legislations, it has a force of law. See TRADE BANK PLC vs. LAGOS ISLAND LOCAL GOVT. COUNCIL (2003) 3 NWLR (PT. 806) 11; ABUBAKAR VS. BEBEJI OIL & ALLIED PRODUCTS LTD. (2007) 18 NWLR (PT. 1066) 319 and OWNERS OF THE MV “ARABELLA” VS. NIGERIAN AGRICULTURAL INSURANCE CORP. (2008) 11 NWLR (pt. 1097) 182. The Courts are enjoined to take judicial notice of subsidiary legislations as having a force of law. See AMUSA VS. THE STATE (2003) 4 NWLR (PT. 811) 595. However, where a Practice Direction is in conflict with the provision of the Constitution or of a statute or of substantive Rule of Court, it will not have any force of law; thus, the Practice Direction must not conflict with any Law or Rule of Court. See ABUBAKAR vs. YAR’ADUA (2008) 4 NWLR (PT. 1073) 465; OKEREKE VS. YAR’ADUA (2008) LPELR 2446 and ARAEKWE VS. CHKWUKA (2012) 1 NWLR (PT. 1280) 169.
The Appellant argued that the said Practice Direction is in conflict with Section 29 (2) of the Evidence Act, 2011. Section 29 of the Evidence Act, 2011 provides that:
29 (1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained –
a. by oppression of the person who made it; or
b. in consequence of anything said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provision of this section.
The above section legalizes the admission of a confessional statement in evidence made by the accused person except where it is obtained by oppression of the person who made it or in consequence of anything said or done which was likely to render unreliable any confession which might be made by him in such circumstance. The Court in such a situation shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession was voluntarily made. There is a departure from the old practice prior to the promulgation of the Evidence Act, 2011 where it was stated that a trial within a trial is not governed by any law. Section 29 (2) (a) and (b) of the Evidence Act, 2011 to my mind governs the trial within a trial procedure. In SULEIMAN vs STATE (2022) LPELR 57577 AT 16-17; Kekere-Ekun, JSC held that:
Section 29 of the Act provides that a confessional statement would not be admissible in evidence where it is obtained by oppression or in consequence of anything done which was likely, in the circumstances existing at the time to render the statement unreliable. It is for this reason that where an accused person alleges that his confessional statement was not made voluntarily, the Court would conduct a trial within a trial to determine whether this is so or not.
See BERENDE VS FRN (2021) LPELR 54993; and ALOZIE VS THE STATE (2021) LPELR 56091. The proof of voluntariness of a confessional statement sine qua non before its admission in evidence has been mandated by the provision of Section 29 (2) (a) and (b) of the Evidence Act, 2011. In the appeal before us, there was no such adherence with the provision of the Act and the trial Court was wrong to have relied on the provision of the Practice Direction, 2008 in view of the existence of Section 29 of the Evidence. The consequence of that act is to render Exhibits A1 and A2 inadmissible and liable to be expunged from the record of the trial Court and are hereby expunged from the record.
On Exhibit C, the Appellant contended that it ought not to be admitted by the trial Court in the absence of the officer who recorded it. The Respondent argued that the statement was properly admitted in evidence in view of the fact that the officer who recorded it cannot be found and it was properly admitted to avoid unnecessary delay in the prosecution of the case. In EKPO vs STATE (2018) LPELR 43843 at 13-14; Galinje, JSC stated that:
“On the issue raised by learned Counsel for the Appellant that the first confessional statement of the Appellant that was admitted was not tendered through the Police officer that recorded it, I find nothing wrong with that procedure. By virtue of Section 83 (2) (a) of the Evidence Act, 2011, the Court may at any stage of the proceeding if having regard to all the circumstances of the case, it is satisfied that an undue delay or expense would otherwise be caused, admit a statement in evidence notwithstanding that the maker is available but is not called as a witness. Exhibit P7 was a statement made to the Police and PW3 through whom the statement was tendered is a Police officer. It is therefore presumed that he had sufficient knowledge of the document that was tendered through him”.
In the appeal at hand, the witness being a Police officer who tendered in evidence Exhibit C recorded by another Police officer who was absent at the trial can perfectly do so and the trial Court rightly admitted Exhibit C to avoid undue delay and waste of time in the absence of the recorder of Exhibit C.
I have earlier on enumerated the ingredients of the offence of rape the prosecution must prove to secure a conviction. The remaining evidence adduced in the case will now be examined to show whether the conviction of the Appellant was justified. This will be done by a consideration of all the ingredients of the offence together with the available evidence on record.
On the first ingredient, it is for the prosecution to prove that the Appellant had sexual intercourse with the prosecutrix in any of the manners enumerated in Section 282 (1) of the Penal Code. The trial Court relied on the evidence of PW1, PW3 and Exhibits A1, A2 and C to convict the Appellant. PW1 was a 12 years old girl. She testified as follows:
My names are Amina Mustapha G. I live at Garindau village Warawa Local Government Area of Kano State. I am 12 years old. I know the accused person. I know the accused person on day when we were playing then the accused came and snatched my head tie and tied my mouth with the head tie. Then he picked me up and put me on his motorcycle and took me to his house, then he removed my clothes and he removed his own and put his penis into my vagina. He did this at his house. This happened in the night after the Isha’i prayer. Then I came back crying then one Saude and Maryam saw me. The accused took me to his house and tied my mouth, this prevented me from shouting. The accused removed my wrapper and pant before he raped me. The accused laid me down. The accused jumped on me and pushed me down. Then he laid down on me and then he put his penis into my vagina. Then he left me and I came back crying. Then Saude and Maryam saw me crying and they asked what happened so I told them. Then they asked me whether my father was at home. I said my father was not at home but at the market. Then we waited for him to come back. When he came back Saude and Maryam informed my father what happened. Then he asked who did it and I said Saleh the accused. Then he said they should leave the matter until in the morning. Then in the morning, my father reported the matter to the police. The accused was arrested, then I was taken somewhere, it was a hospital in Wudil town. I was taken to Wudil General Hospital. I was examined at the hospital. The accused was not detained by the Police.
The Appellant’s Counsel urged that as a minor the evidence of PW1 must be corroborated and there is no corroborative evidence adduced by the prosecution to support the evidence. This issue of corroborating the evidence of a minor is governed by the provision of Section 209 of the Evidence Act 2011.
The Section provides that:
209 (1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation. If in the opinion of the Court he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.
(2) …
(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.
From the above provision, a child below the age of 14 years who is called or tendered to give evidence in a judicial trial shall not be sworn or affirmed. Furthermore, the trial Court must be certain that the minor possesses sufficient intelligence to justify the reception of his/her evidence. Before accepting such evidence, the trial Court must be satisfied that the said evidence is corroborated by some other material evidence in support of such testimony implicating the accused person. See IDI vs STATE (2017) LPELR 42587; IDRIS VS STATE (2019) LPELR 50995; ISAH VS STATE (2020) LPELR 50741 and ALIYU VS STATE LPELR 57031.
Evidence of corroboration is defined as any supplementary piece of evidence to that already given and tending to strengthen or confirm it. It is also an evidence by an independent witness who confirms in some material particular not only that a crime has been committed but also that it was committed by the accused. See AMADI vs STATE (1993) B NWLR (PT 314) 644 and SIWOBI VS COP (1997) 1 NWLR (PT 482) 411.
Corroboration of evidence could either be a matter of law or practice. It is a matter of law where a statute stipulates that the evidence of a witness cannot be acted upon save where there exists another evidence given by an independent witness that tends to confirm in same material particular the earlier evidence given in the case. The circumstances where corroboration is required as a matter of practice are in those cases where the Court would consider a conviction as unsafe without corroborative evidence.
In cases of rape and other sexual offences, it is desirable that the evidence of a prosecutrix be corroborated by other evidence be it slight, implicating the accused or tending to confirm the evidence of the prosecutrix. This is apart from the provision of Section 209 of the Evidence Act considered earlier on evidence of minors. See SUNMONU vs IGP (1957) WRNLR 23; OGUNBAYO VS STATE (2007) LPELR 2323 and MOHAMMED VS KANO STATE (2018) LPELR 43913.
There is no rule as to what corroborative piece of evidence is and how it can be applied but the general yardstick is that corroborative evidence needs not be direct that the accused person committed the offence. See MUSA VS STATE (2013) LPELR 19932; ALI VS STATE (2020) LPELR S3409 AND ISAH VS STATE (Supra). The trial Court relied on the evidence of PW3, Exhibits A1, A2 B and C to hold that they offered the needed corroboration to the evidence of PW1. I have earlier considered the admissibility of Exhibits A1, A2 and C and found Exhibits A1 and A2 to be inadmissible while Exhibit C to be admissible.
On the evidence of PW3 who stated at the trial that:
In the morning, I went to the Police Station and reported the matter. The accused was invited. He was asked by the Police what happened and he said he didn’t know that PW1 is my daughter. Then he begged me to be patient. I said the matter is not for me to be patient but we want to know whether he actually raped PW1. He admitted he actually raped PW1 and asked for my patience and forgiveness. The accused admitted raping PW1 in the presence of Police officers and myself.
The trial Court concluded that on the strength of the above testimony by PW3, it has sufficiently corroborated the evidence of PW1. The Appellant needed not to beg for forgiveness from the PW3 if he had not committed the offence. The plea for forgiveness made at the Police amounted to an admission of the crime and corroborated the evidence of PW1.
On the confessional statement in Exhibit C, it can be seen that the Appellant admitted having sexual intercourse with PW1 just once and added that he admitted to the commission of the offence with the hope that the allegation against him will be dropped at the Police Station. At the trial, he testified that he did not admit the allegation in Warawa Police Station and the SCID, Kano.
Confession of an accused to the commission of an offence plays a major role in the determination of his guilt and a Court is entitled to convict on the strength of the confession if it comes to the conclusion that it was voluntarily made. This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility. See OKEKE vs STATE (2003) 15 NWLR (pt 842) 25.
Even where an accused retracts a voluntary confession as in this appeal, such retraction in itself does not render such statement either inadmissible or worthless and untrue in considering the guilt of an accused. See ULUEBEKA VS STATE (2000) 4 SC (PT 1) 203 and IDOWU VS STATE (2000) 7 SC (FT 11) 50.
The Courts are enjoined to take a decision on whether the retraction avails the accused or not. In most cases, the weight to be attached to such retracted confessional statement is what is important. See OCHE vs STATE (2007) LPELR 53386. To my mind, since the retraction was done during the evidence in chief of the Appellant, the trial Court has a duty to look for other pieces of evidence outside the confession, in GALADIMA vs STATE (2012) LPELR 15530 at 21; Ogunbiyi, JSC held that:
“The law is trite that once a confessional statement is proved as having been made voluntarily as in the instance case, by being direct, positive, unequivocal and clearly, suggestive of an admission of guilt, it is sufficient to ground a conviction even where the maker resiled therefrom or retracted the some completely at the trial. Retraction in other words does not render a confession inadmissible. It does not also deter a trial Court from acting thereon. A confessional statement once properly proved, is sufficient to sustain a conviction despite any retraction by the maker as it is in the instant case”.
See EGBOGHONOME VS THE STATE (1993) 7 NWLR (PT. 307) 383; IDOWU VS. THE STATE (2000) LPELR 1429 and MINDI VS. THE STATE (2020) LPELR 52897.
The trial Court had in the resolution of this issue raised before it applied the principles as enunciated in R vs. SYKES CAR 233 on tests to be applied to a retracted confessional statement which is to the effect that the Courts should be guided by the following:-
i. Is there anything outside the confession which shows that it may be true?
ii. is it corroborated in any way?
iii. Are the relevant statements of facts made in it most likely true as far as they can be tested?
iv. Did the accuse have the opportunity of committing the offence?
v. Are the facts as contained therein ascertained and established?
vi. Is the confession possible?
The trial Court held inter alia at PP 68, 69 and 73 of the record of appeal thus:
On No. (1) that is there anything outside the confession which shows that it may be true?
There is the evidence of PW1, and PW3 and the medical report which the evidence of PW1 was to the effect that the accused abducted PW1, gagged her and took her to his house jumped on her, pushed her down and laid down on her and raped her by inserting his penis into her vagina. The evidence of penetration of PW1 was confirmed by the medical report which stated thot on vaginal examination, the hymen was not intact. And the accused confirmed he raped PW1, to her father PW3 and begged him for his patience and forgiveness. Thus there is evidence outside the confessional statement which shows it may be true.
On No. 2 is the confession corroborated? The confessional statement is corroborated by the evidence of PW3, and the medical report. PW3 stated when the accused was confronted with the allegation of rape, he confirmed he raped PW1 and bagged PW3, for patience and forgiveness. The medical report Exhibit C also corroborated the evidence of PW3 and PW1 that the PW1 was indeed raped. Exhibit C stated as follows:
“On vaginal Examination hymen not intact. A retroviral test was done while relevant negative.”
The corroboration of PW1’s evidence is supported by the accused himself when he approached the father of PW1 and PW3 confirmed to him in the presence of Police officers that he raped PW1 and begged him for forgiveness. Thus, the accused provided the connection between the hymen which was not intact and who was the cause of that broken hymen. See the case of EZIGBO V. THE STATE (2012) 6 SCNJ 61. Thus, the confessional statement Exhibits A1 & A2 and C was corroborated by other established facts.
On No, (III) Whether the relevant facts made in it likely true as far as they can be tested. The fact of raping Pw1, is likely true as far as they can be tested, the PW1, was 10 years at the time of the commission of the offence but she could vividly recall how the accused snatched her head tie, gagged her, abducted her to his house and jumped on her and raped her. The accused in Exhibit A1 & A2 confirmed he raped Pw1 and begged for forgiveness in his additional ‘Statement.
On whether the accused had the opportunity of committing the offence. The accused had the opportunity of committing the offence. The PW stated that it was at night after the Isha prayer.
The trial Court has dutifully applied the test of veracity of a confessional statement on Exhibit C and came to a conclusion which is correct that Exhibit C is direct, positive and unequivocal. Having been made voluntarily by the Appellant, the trial Court is justified in according probative value to it.
It can be seen that from the evidence of PW1 who stated that the Appellant picked her forcefully on his motorcycle after gagging her mouth, took her to his house where he had sexual intercourse with her and which evidence was corroborated by the contents of Exhibit C and the evidence of PW3, then the first ingredient of the offence of rape has been established by the prosecution.
It should also be noted that at the time of the commission of the offence, PW1 was 10 years old and therefore Section 282 (1)(e) of the Penal Code which states that a man is said to have sexual intercourse with a girl with or without her consent if she is under 14 years of age or of unsound mind will come into operation in view of the tender years of PW1. In this connection, even consensual sexual intercourse with PW1 who was 10 years old then will approximate to the commission of the offence and thus tends to establish the first ingredient of the offence. There is also evidence that the Appellant is not the husband of PW1. See PP 21 of the record of appeal.
On the last ingredient of the offence which is penetration, PW1 narrated how the Appellant had sexual intercourse with her. The trial Court held inter alia:
Although, Exhibit B did not link the accused with the commission of the crime and only stated that the hymen of PW1 was not intact suggestive of penetration by the opposite sex, the accused himself offered the missing link by apologizing to the father of PW1 and even asking another person to plead with PW1’s father for patience and forgiveness.
Although, the Appellant pointed out that the trial Court was wrong in its finding as there is no evidence of penetration independently since Exhibit 3 did not link the Appellant with the commission of the offence; In EZIGBO vs. THE STATE (2012) 6 SCNJ 61; Ngwuta, JSC held that:-
“The rapture of the hymen of PW2 as testified by the medical doctor PW5 and as shown in the report Exhibit 2 which he tendered showed that PW2 had been violated several times by the opposite sex. It corroborated the evidence of the PW2 that she was raped. Though, the evidence of PW5 and Exhibit 2 fell short of corroborating the evidence of PW2 that she was raped by the appellant, the Appellant himself provided the missing link on the crime with which he was charged. He did so when he approached the parents of PW2 and pleaded with them for forgiveness for what he had done to their daughter PW2, In my view, this plea amounted to a voluntary and unsolicited confession to the commission of the crime and corroborated the evidence of PW2 (his victim) Appellant gave himself up to the law and became his own accuser”.
The trial Court rightly came to the conclusion that the ingredient of penetration has been proved by the prosecution. This reasoning is in accord with the evidence adduced at the trial Court. In the circumstances, the only issue for determination is resolved against the Appellant and in favour of the Respondent.
Consequently, this appeal is devoid of any merit and it is accordingly dismissed. The judgment of the trial Court in suit No. K/114C/2011 be and is hereby affirmed. The conviction and sentence of the Appellant are accordingly affirmed.
BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in draft, the leading judgment of my learned brother ABUBAKAR MU’AZU LAMIDO, J.C.A. I am in agreement with his reasoning and conclusion. I also dismiss the appeal.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft, the judgment by my learned brother ABUBAKAR MU’AZU LAMIDO, JCA. The stand of my brother on the issues raised and dealt with before us and the reasoning and conclusion reached by my Lord tallied with mine and found that the appeal is unmeritorious. The appeal is equally dismissed by me and I abide by the consequential orders made therein.
