HABIBU MUSA v. THE STATE
In The Supreme Court of Nigeria
On Friday, the 8th day of February, 2013
SC.409/2011
RATIO
APPEAL: ATTITUDE OF THE COURT TOWARDS COGENT FINDING OF LOWER COURT
Also the concurrent findings being apt, cogent and hanging squarely on the evidence proffered by the prosecution, no reason exists to warrant an interference of this court into those findings. I refer to Posu v. The State (2011) 2 NWLR (pt.1234) 303 SC;
Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382 at 415 – 416 SC;
Onu v. Idu (2006) 12 NWLR (Pt. 995) 657 at 676 SC. PER MARY UKAEGO PETER-ODILI, J.S.C
EVIDENCE: PRINCIPLES GUIDING CONFESSIONAL STATEMENT
In that vein the judge would ask himself the following questions:
1. Is there anything outside the confession to show that it is true
2. Is it corroborated
3. Are the relevant statements made in it of facts, true as they can be tested
4. Was the prisoner one who had the opportunity of committing the rape
5. Is his confession possible
6. Is it consistent with the other facts which have been ascertained and have been proved
It needs be restated that this court, the apex court had decreed that a free and voluntary confession alone properly taken, tendered and admitted and proved to be live is sufficient to support a conviction once it meets with the six point test stated above.
Considering these guide lines laid down by this court and placed conually with the case in hand, the confessional statement of the appellant, Exhibit A is enough on itself to ground the conviction. I rely on the following cases:
Sule v. State (2009) 17 NWLR (pt. 1169) 33 at 60 SC;
Esboshonome v. State (1993) 7 NWLR (Pt. 306) 383 at 419 – 420
Nsofor v. State (2004) 18 NWLR (pt. 905) 292 at 310 – 311.
Dawa v. State (1980) 8 – 11 SC 236 at 267 – 168;
R v Sykes (1913) 8 CAR Appeal Report 233. PER MARY UKAEGO PETER-ODILI, J.S.C
CRIMINAL LAW: WHETHER ALL CONTRADICTIONS CAN VITIATE THE CASE OF THE PROSECUTION
Indeed the contradictions are understandable and of no importance not denting the body of evidence as required by law. See Princent v. The State (2002) 18 NWLR (Pt. 798) 49 (SC); Daggaya v. The state (2006) 7 NWLR (Pt. 980) 637 at 664 SC; Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349 at 376.
The situation is well captured by my learned brother, Fabiyi J.S.C. in Musa v. The State (2009) 15 NWLR (Pt. 1165) 465 at 489 in these words:
“It is not every miniature contradiction that can vitiate the case of the prosecution. Minor contradiction which did not affect credibility of witnesses will be of no avail to the appellant.” PER MARY UKAEGO PETER-ODILI, J.S.C
CRIMINAL LAW: ATTITUDE OF THE COURT TOWARDS RAPE
Rape in our society and indeed in any human society is a grave and serious offence committed by those people who are shameless, merciless and animalistic. I cannot imagine a situation where one wilt put aside his honour, integrity and humanness to over-power or lure a young girl of tender age to have her carnal knowledge. It is against common sense. It is against humanity and God the Creator will not allow such a bestial behavior to go unpunished even here in the mundane life. PER IBRAHIM TANKO MUHAMMED, J.S.C
JUSTICES
IBRAHIM TANKO MUHAMMED Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
Between
HABIBU MUSA Appellant(s)
AND
THE STATE Respondent(s)
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division delivered on the 21st day of July, 2011 which by a majority of two to one affirmed the conviction and sentence passed on the appellant for the offence of Rape contrary to Section 283 of the Penal Code. The trial court was the High Court of Justice, Kano in Kano State.
FACTS BRIEFLY STATED
This is a case of rape. The undisputed facts as ascertained by the courts below show that in March 2004 in Kano, Fatima Muntari, a 5 year old girl came home crying in distress. Her mother inquired from her what the matter was and there was no answer. She went to urinate and had difficulty and in the process of washing her up, her mother saw semen in her pant and body. A report was made to the police and the victim was taken to the Murtala Mohammed Specialist Hospital, Kano where Dr. Muhammad Awwal, a senior consultant gynecologist examined Fatima. He issued a medical report which confirmed that the girl was raped and her hymen missing and concluded that there was possible genital manipulation with genital infection.
Fatima fingered Habibu Musa (appellant) as the person who assaulted and raped her. Habibu was arrested and during investigation he confessed that he could remember over three months before, that he took Fatima to Rama House and had sex with her. Also that on the 27/3/04 at about 17 hours he took her to the same Rama house and had sex with her.
At the High Court, the appellant denied making the statement which was admitted in evidence. The trial Judge heard from prosecution witnesses. The appellant testified in his own defence. The court considered the evidence and convicted the appellant sentencing him to 14 years imprisonment.
Dissatisfied, the appellant appealed to the Kaduna Division of the Court of Appeal which by a majority judgment of two to one dismissed the appeal and affirmed the decision and orders of the trial High Court.
Once more dissatisfied, the appellant has come before this court on five grounds of appeal.
On the 15th November 2012 date of hearing, learned counsel for the appellant adopted the appellant’s brief settled by C. I. Enweluzo Esq. filed on 28/11/2011 and a reply brief filed on 12/3/12. In the appellant’s brief were crafted four issues for determination as follows:
a. Whether the learned majority Justices of the Court of Appeal was not in error when they held that there was evidence before the trial court to justify the conviction of the appellant for the offence of RAPE. This is distilled from Grounds A and B of the notice and grounds of appeal.
b. Whether the learned majority Justices of the Court of Appeal was right in relying on Exhibit A (that is the alleged confessional statement of the appellant) in upholding the Judgment of the trial court. This is distilled from Ground C of the notice and grounds of appeal.
c. Whether the learned majority of Justices of the Court of Appeal were right in upholding the judgment and sentence passed on the appellant by the trial court when the evidence adduced at the trial has no relationship whatsoever with the charge before the trial court. This is distilled from Ground D of the notice and grounds of appeal.
d. whether the learned majority of Justices of the Court of Appeal were right in upholding the conviction and sentence passed on the appellant by the trial court when the evidence of the prosecutrix (PW1) was not in any way corroborated. This is distilled from Ground E of the notice and grounds of appeal.
The respondent through its counsel adopted the brief settled by Suraj Sa’eda, the Solicitor General of Kano State, filed on 17/2/12.
The respondent took umbrage with the cliche, “Judgment is unreasonable and unwarranted” as not a proper ground of appeal to the Supreme Court. That it is only a proper ground of appeal from a trial court to an appellate court and not at this level and so ground (a) so couched should be struck out.
That the complaint of the appellant ought to be against a specific finding nay conviction. That the reason is that it pertains to a criminal process, otherwise the ground would be at an end where there should be a specific challenge. He cited the cases of Nwokedu v. Okanu (2010) 3 NWLR (Pt. 1181) 362 at 383 SC; Elija Okezie v. The Queen (1963) 1 ALL NLR 1.
Learned counsel for the respondent stated further that in framing issues for determination, the appellant has merged the omnibus ground with another ground thereby making it proper and arguable. That the respondent will not pose a different issue for determination in the light of Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506 at 522; Chabasaya v. Anwusi (2010) 10 NWLR (Pt. 1201) 163 at 180; Egharevba v. Eribo (2010) 9 NWLR (Pt. 1199) 411 at 432 (SC).
That this court has the duty to formulate issues different from those formulated by the parties if it will serve the ends of justice. He cited Kabirikim v. Emefor (2009) 14 NWLR (pt. 1162) 602 at 627.
He concluded however by saying he will argue the issues as framed by the appellant.
ISSUE 1
Whether the learned majority Justices of the Court of Appeal was not in error when they held that there was evidence before the trial court to justify the conviction of the appellant for the offence of RAPE.
Arguing, learned counsel for the appellant submitted that for the prosecution to succeed in a charge for Rape in keeping with the ingredients of the offence as embedded in Section 282(1) of the penal Code the prosecution must prove that:
(a) The accused had sexual intercourse with the prosecutrix.
(b) That the act was done in circumstance falling under anyone of the paragraphs of Section 282 of the Penal Code. The applicable circumstance herein being with or without her consent when she is under fourteen years of age or of unsound mind.
(c) That there was penetration. He referred to Jos Native Authority v. Alhaji N. A. Gani (1968) NMLR 8; The State v. Ojo (1980) 2 NCR 319 at 395.
It was contended for the appellant that the prosecution must also establish by evidence independent of that of the prosecutrix that the penis of the appellant penetrated the vagina of the prosecutrix and the evidence of the penetration must be clear, unambiguous and must be linked to the appellant. That throughout the evidence on record, there is nothing to suggest penetration of the vagina of the prosecutrix by the appellant apart from that of prosecutrix which did not amount to such. He cited Jegede v. The State (2001) 7 MJSC 199 at 204 State v. Usman (2004) ALL FWLR (Pt. 226) 231 at 269; Igabele v. State (2006) ALL FWLR (Pt. 311) 1797; Iko v. The State (2001) 6 MJSC 1.
Learned counsel for the respondent said the concurrent finding of the two lower courts is in concord with the decision of this court that a penetration however slight is sufficient to ground a conviction. He cited the cases of Posu v. The State (2011) 2 NWLR (Pt.1234) 393; that since this finding is supported by evidence and there is nothing to warrant an interference with the concurrent finding. He referred to Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382 at 415 – 416 SC; Onu v. Idu (2006) 12 NWLR (Pt. 995) 657 at 676 SC.
The appellant took the view that there was no evidence of rape since penetration was not established. This assertion is difficult to accept since the victim had said at the court of trial thus:
“I know the accused… He held my hand and took me to a room and he removed my pant and he climbed on top of me so he put something and mucus in my private part.”
That piece of evidence coming from the prosecutrix, girl of tender age and the incident occurring when she was five years old is graphic. The trial court was correct accepting that evidence and the court below equally right to go along. This is because penetration even if slight or weak is sufficient to sustain a conviction of rape. That is the stand of this court and nothing has happened yet for a change of posture from the court. Also the concurrent findings being apt, cogent and hanging squarely on the evidence proffered by the prosecution, no reason exists to warrant an interference of this court into those findings. I refer to Posu v. The State (2011) 2 NWLR (pt.1234) 303 SC;
Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382 at 415 – 416 SC;
Onu v. Idu (2006) 12 NWLR (Pt. 995) 657 at 676 SC.
It can be seen that this issue is resolved against the appellant in that the prosecution proved effectively the penetration needed to establish a case of rape.
ISSUE 2
Whether the learned majority Justices of the Court of Appeal were right in relying on Exhibit A (that is the alleged confessional statement of the appellant) in upholding the Judgment of the trial court.
Learned counsel for the appellant submitted that the alleged confessional statement credited to the appellant which was tendered as Exhibit A was worthless, of no evidential value and ought not to have been relied upon by the courts below in convicting and affirming the conviction of the appellant for rape. That in taking Exhibit A from the appellant, the mandatory provisions of Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria was violated by PW5. He said the appellant can still raise the issue of admissibility of an inadmissible piece of evidence such as Exhibit A on appeal. He cited the cases of;
Abolade A. Alade v. Salawu J. Olukade (1976) 2 ALL NLR 56 at 61;
Tijani v. Akinwunmi (1990) 1 NWLR (pt. 125) 237 at 248;
Aigbadion v. The State (1999) 1 (NWLR) (pt. 586) 284 at 297;
Ogunye & Ors. v. The State (1999) 5 NWLR (pt. 604) 548 at 570 – 571.
Mr. Enweluzo of counsel for the appellant said the failure of the appellant’s counsel to raise objection at the time Exhibit A was tendered cannot be used to punish the appellant. He referred to:
Bowaje v. Adediwura (1976) 6 SC 143 at 147;
Akinyede v. The Appraiser (1971) ALL NLR 162;
Ahmadu v. Salawu (1974) ALL NLR 822;
Onyebuchi Irogbu & Anor v. Richard Okordu & Anor. (1990) 6 NWLR (Pt. 159) 643 at 669.
He further contended that Exhibit A is wrongly admitted in evidence at the trial court and ought to have been taken into account in convicting the appellant. Also that such a confessional statement when made by the accused person ought to have been taken before a superior police officer for confirmation or denial of the confessional statement. He referred to R v. Omerewure Sapele (1957) 2 FSC 24; Maidawa v. Husaini (2000) 6 NWLR (pt. 662) 698 at 704; Erekanure v. The State (1993) 5 NWLR (Pt.294) 385 at 393.
He said the provisions of 36(6)(a) of the 1999 Constitution which are meant for the benefit of the appellant and also in the overall public interest to ensure fair trial of accused persons of criminal offences are violated it would be said that he has been denied justice and the trial declared a nullity. He cited Josiah v. The State (1985) I NWLR (pt.1) 125 at 138; Okegbu v. The State (1979) 11 SC 1 at 52; Ifezue v. Mbadugha (1984) 1 SCNLR 427.
In response, Mr. Sa’eda of counsel said even though the accused resiled on his confessional statement, it did not detract from the admissibility which the trial court admitted and affirmed by the Court of Appeal in keeping with the law. He cited Sule v. State (2009) 17 NWLR (Pt. 1169) 33 at 60 SC; Egboghonome v. State (1993) 7 NWLR (pt. 306) 383 at 419 – 420 (SC); Akpan v. The State (2001) 15 NWLR (pt. 737) 745 at 763.
In this regard the appellant had urged the court to discountenance the confessional statement, Exhibit A since the appellant was at the court of trial denying making Exhibit A. In the statement the appellant said:
“I the bearer of the above name and address stated as follows: I could remember over three months I took Fatima to Rama house and sex her. Then on the 27th March 2004 at about 1700 hrs, I still took her to same house of Rama and sex her.”
PW5, the Investigating Police Officer in tendering Exhibit A in court of trial said:
“The accused speaks English. He spoke in Hausa while I translated it into English. Yes I speak Hausa fluently. Yes after I recorded the statement I read it to him and I asked him whether that was all or there is anything else. He said that was all.”
The submission of the appellant is understood to mean that once an accused resiles from a statement he was said to have made, the court should refrain from admitting it or if admitted should not be used in evidence. That view of the appellant’s counsel is not borne out from the law and practice as exist now. This is because confession and testimony of the accused person are evaluated and assessed by a trial judge together with the totality of the evidence so as to reach a just decision. Therefore, the fact that the appellant resiled from that Exhibit A, the confessional statement would not affect negatively the evaluation of the evidence plus that statement which when taken through the tests that qualifies a confessional statement to be used. In that vein the judge would ask himself the following questions:
1. Is there anything outside the confession to show that it is true
2. Is it corroborated
3. Are the relevant statements made in it of facts, true as they can be tested
4. Was the prisoner one who had the opportunity of committing the rape
5. Is his confession possible
6. Is it consistent with the other facts which have been ascertained and have been proved
It needs be restated that this court, the apex court had decreed that a free and voluntary confession alone properly taken, tendered and admitted and proved to be live is sufficient to support a conviction once it meets with the six point test stated above.
Considering these guide lines laid down by this court and placed conually with the case in hand, the confessional statement of the appellant, Exhibit A is enough on itself to ground the conviction. I rely on the following cases:
Sule v. State (2009) 17 NWLR (pt. 1169) 33 at 60 SC;
Esboshonome v. State (1993) 7 NWLR (Pt. 306) 383 at 419 – 420
Nsofor v. State (2004) 18 NWLR (pt. 905) 292 at 310 – 311.
Dawa v. State (1980) 8 – 11 SC 236 at 267 – 168;
R v Sykes (1913) 8 CAR Appeal Report 233.
In this matter of the confessional statement the concurrent findings are in keeping with the surfeit of evidence lending support to the weight attached to the statement. The conclusion being that the issue is resolved against the appellant and that the Court of Appeal was right in relying on Exhibit A in upholding the decision of the trial court.
ISSUE 3
Whether the learned majority of Justices of the Court of Appeal were right in upholding the judgment and sentence passed on the appellant by the trial court when the evidence adduced at the trial has no relationship whatsoever with the charge before the trial court.
For the appellant was submitted that the charge against the appellant is not supported by the oral or documentary evidence before the court. That if the prosecution wanted to secure a conviction for the sexual offences allegedly committed by the appellant at Galadanchi and Ramma house respectively, they should have clearly done so by framing a charge in respect of the sexual offences committed in the two different quarters. That alternatively the prosecution should have charged the offence in the alternative. Learned counsel for the appellant said it is trite law that every conviction ought to relate to the charge provided under Sections 27 to 28 of the Evidence Act, 2004 now Section 28 of the Evidence Act, 2011. That if Exhibits A and C are read together with the oral evidence of the prosecution witness it would be seen they do not relate to the facts set out in the charge. Also that Exhibit A, the confessional statement needed corroboration which is absent and so a conviction cannot be grounded on that statement. He referred to Agwu & Ors. v. The State (1965) NMLR 18 at 19 – 20; Afolabi v. COP (1961) ALL NLR 654; Otufale v. The State (1968) NMLR 262; Uche & Anor. v. Rex (1964) 1 ALL NLR 195.
Responding, learned counsel for the respondent said the parents of the prosecutrix did not condone the act. He stated that the only point of difference came in the statement of PW1 who mentioned Ramma’s house is in Magashi Quarters. Ramma herself said that her house is in Galadanchi quarters, as in the charge which a minor discrepancy which would not affect the credibility of the witness. He relied on Princent v. The State (2002) 18 NWLR (Pt. 798) 49 (SC); Daggaya v. The State (2006) 7 NWLR (Pt. 980) 637 at 664 SC; Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349 at 376; Musa v. The State (2009) 15 NWLR (Pt. 1165) 467 at 489.
The grouse of the appellant in this issue is that the charge sheet referred to “Galadanchi quarters within Kano Judicial Division” while the victim said the appellant raped her – “the house is Giddan Ramma at Magashi quarters.” That the discrepancy should be taken in his favour to establish a doubt. However a witness of the defence stated in introduction –
“My name (sic) are Ramma Aminu, I live at Galadanci Quarters”
Even though PW1 had said Ramma House was in Magashi quarters, this is indeed a minor discrepancy which neither affected the credibility of the witness nor shook the weight of evidence of the prosecution and the courts below were right in seeing the discrepancy for what it was a minor error not going into the substance of the case. The same treatment was visited on the minor discrepancies on the dates. Indeed the contradictions are understandable and of no importance not denting the body of evidence as required by law. See Princent v. The State (2002) 18 NWLR (Pt. 798) 49 (SC); Daggaya v. The state (2006) 7 NWLR (Pt. 980) 637 at 664 SC; Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349 at 376.
The situation is well captured by my learned brother, Fabiyi J.S.C. in Musa v. The State (2009) 15 NWLR (Pt. 1165) 465 at 489 in these words:
“It is not every miniature contradiction that can vitiate the case of the prosecution. Minor contradiction which did not affect credibility of witnesses will be of no avail to the appellant.”
Those words I adopt since the circumstances in this case are apposite and in doing so I resolve the issue in favour of the respondent and against the appellant in that the Court of Appeal was right in upholding the judgment and sentence on the appellant and there was clearly a nexus between the evidence adduced at the trial and the charge before the trial court.
ISSUE 4
Whether the learned majority of Justices of the Court of Appeal were right in upholding the conviction and sentence passed on the appellant by the trial court when the evidence of the prosecutrix (P.W.1) was not in any way corroborated.
Learned counsel for the appellant submitted that the proof required in a case of rape is not just supplied by the solitary claim of the prosecutrix, it must be based on independent evidence which corroborates the evidence of the prosecutrix which is not present in the case in point. He referred to Section 178 (5) of the Evidence Act, Cap 40 Laws of Northern Nigeria 1963; Section 275 of the Penal Code Laws Kano State; Sambo v. The State (1993) 6 NWLR (pt. 300) 413 – 414.
That the evidence of P.W.3 and P.W.4 on the penetration and linking same to the appellant is based entirely on hearsay which is what PW1 (prosecutor) told them and is not corroborative of prosecutrix’s evidence as held by the trial court and upheld by the lower court. Also that the two courts below did not advert their minds to the danger of acting on the corroborated evidence of the prosecutrix before convicting the appellant and sustaining the conviction has occasioned great miscarriage of justice. He relied on the cases of Jegede v. State (2001) 7 MLSC 199 at 205; Iko v. The State (2001) 6 MJSC 1 at 16; Queen v. Oyederan (1967) NMLR 122, Okpanefe v. The State (1969) 1 ALL NLR 420 at 424.
Learned counsel for the appellant said the medical doctor who made Exhibits B1, B2, and C was not called to testify and PW5, the Police Corporal who tendered those exhibits was not competent to so tender them. He cited section 42 (1) (a) of the Evidence Act, Cap. E14, Laws of the Federation of Nigeria, 2004 Okoyomon v. The State (1973) NMLR 292; Upohar v. The State (2003) FWLR (pt. 139) 1512 at 1529.
That the nature of corroborative evidence capable of grounding conviction on a charge of rape must be cogent, compelling and unequivocal as to show without more that the appellant committed the offence charged. He cited Igbire v. The State (1997) 9 NWLR (pt. 519) 101, Olaleye v. State (1970) 1 ALL NLR 300; Ukershina v. The state (2003) NLR (Pt. 137) 1117 at 1127.
For the respondent was put forward that there was sufficient corroboration found by the trial court and affirmed by the Court of Appeal including the confessional statement of the appellant.
The reply on points of law contained in the appellants reply brief is more a repetition of the points already taken up by the appellant in their brief and there is no necessity in going back there in the name of a reply on points of law.
It was posited by the appellant’s counsel that there was no corroboration and in this regard it has to be restated that in offences of a sexual nature it is very desirable that the evidence of the prosecutrix or complaint is buttressed by other pieces of evidence implicating the accused in a substantial way. This does not detract from the fact that the court is not hindered from convicting an accused on the uncorroborated evidence of the complainant.
In the use of corroborative evidence however little or slight it may be there is no rule as to what a corroborative piece of evidence is and how it can be applied. This is because the trial judge is best suited to make use of the evidence being well situated and having the opportunity and singular privilege of hearing firsthand the witnesses, considering their demeanor including that of the appellant. Also, where there was enough on ground from which the trial judge can reach a decision then there is no need to warn itself of the danger of acting on the uncorroborated evidence of the prosecutrix. That in this case any way it is not necessary since there was corroborative evidence in the confessional statement, the medical report and even the other prosecution witnesses’ testimonies which had a flow showing the credibility and veracity in those testimonies. Therefore, in terms of corroboration, there were many to solidify the evidence of prosecutrix. I rely on Ogunbayo v. The State (2007) 8 NWLR (Pt. 1035) 157 SC.
On this issue nothing held back the hand of the Court of Appeal in upholding the conviction and sentence passed on the appellant by the trial court as the evidence of the prosecutrix (PW1) was effectively corroborated. I answer the issue positively and against the appellant.
All the issues having been resolved against the appellant I do not hesitate in dismissing this appeal. I dismiss the appeal and affirm the judgment of the Court of Appeal in its affirmation of the conviction and sentence ordered by the trial court against the appellant.
IBRAHIM TANKO MUHAMMED, J.S.C.: I was privileged by my learned brother, Odili, J.S.C, to have read in advance the judgment just delivered. I agree with my lord that the appeal lacks merit and it should be dismissed. I too dismiss the appeal.
Rape in our society and indeed in any human society is a grave and serious offence committed by those people who are shameless, merciless and animalistic. I cannot imagine a situation where one wilt put aside his honour, integrity and humanness to over-power or lure a young girl of tender age to have her carnal knowledge. It is against common sense. It is against humanity and God the Creator will not allow such a bestial behavior to go unpunished even here in the mundane life. It is the lesser punishment of God that has caught-up with the appellant. I wish it were heavier.
I have no reason to disturb the concurrent findings of the two lower courts which I affirm. I adopt other consequential orders made in the lead judgment.
JOHN AFOLABI FABIYI, J.S.C.: I have had a preview of the judgment just delivered by my learned brother – Peter-Odili, J.S.C. I agree with the reasons therein advanced in arriving at the conclusion that the appeal lacks merit and deserves an order of dismissal.
The appellant was charged for the offence of rape contrary to section 282 and punishable under section 283 of the Penal Code Law. He was found guilty by the trial High Court, Kano State of Nigeria which convicted and sentenced him to a term of 14 years in prison. Same was affirmed in the majority judgment of the Court of Appeal, Kaduna Division. The appellant has decided to further appeal to this court.
I wish to comment briefly on some of the salient issues in contention. One must try to employ some measure of decorum, as much as practicable, in considering the sordid matter herein.
The first salient issue is whether there was penetration. Mr. Suraj Sa’eda, the Solicitor General of Kano State who appeared for the respondent referred to Archbold, Criminal Pleadings, Evidence and Practice, 2008 at page 1966 where it is stated that –
“Where vaginal rape is alleged, it is not necessary to prove penetration of the vagina properly so called; it is sufficient that there was any degree of penetration by the penis within the labia of the Pendulum of the complainant.”
It has been consistently held by this court that a penetration, however slight is sufficient to ground conviction for rape. Proof of the slightest penetration will be sufficient. Refer to Posu v. The State (2011) 2 NWLR (Pt. 1234) 393; Ogunbayo v. The State (2007) 8 NWLR (Pt. 1035) 157. And once there is evidence, even if a weak one upon which the finding could be hinged, the appellate court should not interfere. See: Onu v. Idu (2006) 12 NWLR (Pt. 995) 657 at 676.
P.W.1, the prosecutrix, was five years old at the material time but she testified when she was seven years old as extant on page 32 of the record as follows:-
“He held my hand and took me to a room and he removed my pant and he climbed on top of me so he put something and mucus in my private part… As he was putting the mucus I felt pain.”
The appellant admitted in clear terms in Exhibit A that he ‘took Fatima – (the prosecutrix) to Rama house and sex her.’ It is clear to me that there is sufficient evidence of penetration even if the medical evidence is of no moment since no medical officer testified. P.W.1 said as the appellant was putting the mucus in her private part, she felt pain. It can be safely inferred that there was penetration. Despite the fact that the appellant tried to embark upon a game of hide and seek, the finding of the two lower courts cannot be impugned.
The next point that was strenuously canvassed is whether or not the evidence of P.W.1 was corroborated or not. In Black’s Law Dictionary, Sixth Edition at page 344, corroborative evidence is defined as –
“Evidence supplementary to that already given and tending to strengthen or confirm it. Additional evidence of a different character to the same point – Edwards v. Edwards Tenn. APP; 501 S.20 2d 283, 289”
The prosecutrix, as P.W.1 testified in a graphic fashion that the appellant raped her. The appellant in his cautioned statement – Exhibit A admitted that he ‘sex her’. Confession is said to be the best form of evidence which can be relied upon. P.W.2, the father of the prosecutrix, testified that the appellant begged him, to no avail, for defiling his daughter. To my mind, there was ample corroborative evidence as depicted above; relied upon by the trial court and the Court of Appeal.
The two courts below made concurrent findings of fact on all crucial points in contention. This court does not form the habit of interfering in such situations unless compelling reasons are shown which justify an adequate interference. The findings of fact have not been shown to be perverse. They do not run against the current of evidence. It needs no gainsaying that the appellant misfired and should dance to tune dictated by his rather mundane act. I shall not interfere as each of the two lower courts was on a firm stand. See: Onwudiwe v. FRN (2006) 10 NWLR (Pt. 788) 382; Posu v. The State (2011) 2 NWLR (Pt. 1234) 339; Kale v. Coker (1982) 12 S.C. 252.
It was contended on behalf of the appellant that the charge against him was not proved beyond reasonable doubt. It must be restated here that proof beyond reasonable doubt is not proof to the hilt. See: Miller v. Minister of Pensions (1947) 3 All ER 373. It is not proof beyond all iota of doubt; as pronounced by Uwais, CJN in Nasiru v. The State (1999) 2 NWLR (pt. 589) 87 at 98.
Where all the essential ingredients of the offence have been satisfactorily established by the prosecution, as herein, the charge is proved beyond reasonable doubt. See: Alabi v. The State (1999) 7 (pt. 301) 511 at 523.
The appellant committed an abomination; to say the least. In my considered opinion, he failed to exculpate himself. He deserves the sentence handed out to him by the trial court which was affirmed by the court below. It will serve as deterrence to other aspiring rapists in the appellant’s vicinity. And, may the omnipotent forgive him for defiling the prosecutrix who was five years old at the material time.
For the above reasons and the fuller ones ably adumbrated in the lead judgment, I too, feel that the appeal is devoid of merit and should be dismissed. I order accordingly and abide by the consequential orders therein made.
KUMAI BAYANG AKA’AHS, J.S.C.: I was privileged to read in draft the judgment of my learned brother, Peter – Odili JSC. I am in total agreement with the reasoning and conclusion that the appeal lacks merit and should be dismissed. The accused was tried on an amended charge which reads:-
“That you Habibu Musu of Magashi Quarters Kano City on or about the 29th day of March 2003 at Galadanchi Quarters Kano within Kano Judicial Division committed the offence of rape to wit having sexual intercourse with one Fatimu Muntari aged 5 years and thereby committed un offence punishable under Section 283 of the Penal Code, Laws of Kano State 1991”
He pleaded not guilty to the charge. The prosecution called six witnesses and tendered four exhibits while the accused testified in his defence and called two witnesses. After reviewing the evidence adduced by the prosecution the trial Judge found the accused guilty and convicted him of the offence as charged and sentenced him to 14 years imprisonment. He appealed against the conviction and sentence to the Court of Appeal Kaduna Division. The lower court in a split decision of 2 – 1 dismissed the appeal and affirmed the conviction and sentence. This is a further appeal from that judgment.
The appellant formulated four issues from the five grounds of appeal filed. The respondent adopted the issues as framed by the appellant. My learned brother, Peter – Odili JSC has dealt exhaustively with the issues raised in the appeal. I wish to add a word on two on the issue of penetration for emphasis which is covered by issue A in the appellant’s brief. The appellant submitted that in a prosecution for rape, it is the duty of the prosecution to prove that the accused had sexual intercourse with the prosecutrix such that the act of sexual intercourse was unlawful and that the prosecution must prove complete penetration and relied on Jos Native Authority vs Allah Na Gani (1968) NMLR 8.
There is no doubt that in a charge of rape penetration must be proved. In Jegede vs State (2001) 14 NWLR (Part 733) 264; (2001) 7 SC (Part 1) 122, Belgore JSC (as he then was) after defining the offence of rape as “the unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, or in the case of a married woman, by personating her husband……..” went on to state that rape is committed in circumstances set out above with clear evidence of penetration and who was responsible for it.
In Jos N. A. Police vs Allah Na Gani (1967) NNLR 107; (1968) NMLR 8 the Northern State High Court sitting on appeal to review the conviction of Allah Na Gani for the offence of rape by the Chief Alkali Court Jos set aside his conviction and sentence on the ground that there is no evidence that Allah Na Gani committed rape on the girl whose age was put at 7 years. The court held that sexual intercourse is an essential ingredient of the offence of rape and the girl did not say that he had sexual intercourse with her; all she said was that “he pressed me (lied on me)”.
I am of the firm view that the decision in that case ought to be reviewed. In a cultural setting such as Nigeria especially in the North and considering the age of the girl the expression used for sexual intercourse especially in rape is often couched in not too clear expressions.
In the instant case the prosecutrix when giving evidence stated that the accused held her hand and took her to a room and removed her pant. That he climbed on top of her and he put something and mucus in her private part and that as he was putting the mucus she felt pain. The interference to be drawn here is that the accused had sexual intercourse with her.
The appellant’s statement was recorded in which he admitted having sex with Fatima twice.
Contrary to the submission by the appellant that there must be full penetration, the law is that penetration however slight is sufficient to ground conviction for rape. See: Posu vs State (2011) 2 NWLR (Part 1234) 393; Ogunbayo vs State (2007) 8 NWLR (Part 1035) 157.
For this and the more detailed reasons contained in the lead judgment, I too will not interfere with the majority decision reached by the lower court. I find that the appeal has no merit and it is accordingly dismissed.
“EDITOR’S NOTE- JUDGMENT NOT YET PARAGRAPHED AS THE CONTRIBUTION FROM ARIWOOLA, J.S.C WAS UNAVAILABLE AT PRESS TIME. PARAGRAPHED VERSION OF THE JUDGMENT WILL BE PUBLISHED AND AUTOMATICALLY UPDATED AS SOON AS THE OUTSTANDING CONTRIBUTION IS RECEIVED”
Appearances
- I. Enweluzo For Appellant
AND
Suraj Sa’eda Solicitor General (Kano State) Aisha Mahmoud, Chief State Counsel, Halima Ahmed, Principal State Counsel, M. I. Ahmad, Senior State Counsel, Aisha Bello Salim For Respondent
