ISMAILA KIWO V. THE STATE
(2013)LCN/6414(CA)
(2013) LPELR-21380(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of July, 2013
CA/IL/C.18/2013
RATIO
DUTY: WHETHER THE ASSESSMENT OF CREDIBILITY OF WITNESS IS WITHIN THE PROVINCE OF THE TRIAL COURT
Finally, it is trite law, that assessment of credibility of witnesses is within the province of the trial court, it is the only court that has the advantage of watching and observing the witness in court, OKOSI VS. STATE (1989) 1 NWLR PART 100. PER TIJJANI ABUBAKAR, J.C.A.
Justice
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
ISMAILA KIWO Appellant(s)
AND
THE STATE Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of the Kwara State High Court presided over by Kawu J. delivered on the 29th day of November 2012.
The Appellant/accused before the trial court stood trial on one count charge which reads as follows:
“That you, Ismaila Kiwo, on or about the 11th day of May 2010, at Aboto-Oja, Ilorin, within the jurisdiction of this court forcefuily dragged Suliat Ibrahim (F) into the bush and had carnal knowledge of her without her consent and thereby committed an offence punishable under Section 283 of the Penal Code.”
Learned Director of Public Prosecutions Ministry of Justice Ilorin J. A. Mumini Esq, filed the charge dated 27th September 2011 on behalf of the prosecution.
The facts of this case are that the Appellant on the 11th day of May 2010, at Aboto-Oja in Ilorin laid ambush and forcefully dragged Suliat Ibrahim to the bush and had carnal knowledge of her without her consent. Appellant ran into the bush after the act, the victim and Adenike Ibrahim reported the incident to their parents, who promptly reported the incident to the Police.
Appellant was later arrested and arraigned before the Kwara State High court, at the conclusion of trial, Appellant was found guilty and sentenced to four years imprisonment.
Appellant became dissatisfied and therefore filed notice of appeal against the judgment of the lower Court on 21 January 2013. Appellant filed five grounds of appeal reproduced without particulars as follows:
1. The learned trial Judge erred in law, when he found the Appellant guilty of the offence of rape punishable under Section 283 of the penal code, Laws of the Federation of Nigeria 2004.
2. The learned trial Judge erred in law, when he found that, the testimony of PW4 and other evidence were sufficient to corroborate the evidence of PW3, and establish that, the Appellant actually committed the offence.
3. The learned trial Judge erred in law, when he convicted the Appellant based on the evidence of PW5 which is doubtful, inconclusive, obscure and of no known certainty.
4. The learned trial Judge erred in law, when he convicted the Appellant based on the weight of evidence adduced by the prosecution when there is no causal link between the Accused and the actual commission of the offence.
5. The trial Court erred in law when it treated with levity, the failure of the Prosecution to tender the written statement which the accused made to the Police upon his arrest.
Learned counsel Olalekan Yusuf filed Appellants brief; the brief was filed on 4/3/2013, and deemed argued on 17th April 2013. Respondents brief was settled by learned Attorney General of Kwara State Kamaldeen Ajibade Esq.
The Appellants counsel crafted from Appellants grounds of appeal the following issues for determination.
1. Whether, the learned trial Judge was right when he held that the Prosecution proved ifs case beyond reasonable doubt.
2. Whether, the learned trial Judge was right to find that, the testimony of PW4, PW5 and other evidence adduced by the prosecution were sufficient to corroborate the evidence of PW3.
3. Whether based on the evidence of prosecution witnesses and the exhibits tendered, there was any causal connection between the accused person and the actual commission of the offence.
4. Whether, the prosecution has a duty not to withhold evidence germane to the case of the Appellant and whether the Court can rightly convict an accused where accused’s statement has been withheld.
The Respondent through learned Attorney General Kwara State Mr Ajibade filed Respondents brief of argument dated 26th March 2013.The Respondent adopted Appellants issues for determination and submitted argument in the same order the Appellant argued the said issues.
Even though Respondent adopted the issues crafted by the Appellant. The Appellant submitted fragmented and pluralized issues which stray throughout issues one, two and three I hold the view that issues one, two and three can be treated together as they all relate to proof beyond reasonable doubt, I will therefore treat the three issues together, for the avoidance of doubt the three issues are:
1. Whether, the learned trial Judge was right when he held that the prosecution proved its case beyond reasonable doubt.
2. Whether, the learned trial Judge was right to find that the testimony of PW4, PW5 and other evidence adduced by the prosecution were sufficient to corroborate the evidence of PW3.
3. Whether based on the evidence of prosecution witnesses and the exhibits tendered, there was any causal connection between the accused person and the actual commission of the offence.
Both counsel for the Appellant and Respondent submitted arguments on the issues nominated; learned counsel Olalekan Yusuf for the Appellant said, in every Criminal trial, an accused person is presumed innocent until he is proved guilty. He referred this Court to Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, (3rd amendment), he said, where doubts arise in a trial, it is resolved in favour of the accused person, he relied on Section 135(1) of the Evidence Act, and the case of ALONGE VS IGP (1959) NSCC 169 at 170. He further submitted that the accused person has no duty to establish his innocence, the duty to establish guilt of the accused person remains on the prosecution. He relied on OLADOTUN VS. STATE (2010) 16 NWLR PART 1217.
Learned counsel Yusuf said, the prosecution failed to establish the essential ingredients of the offence of rape under Section 282(1) of the Penal Code.
Learned counsel referred the Court to the evidence of PW5,who prepared Exhibit P2, counsel said, PW5 said case of rape could not be ruled out, but on cross examination said, he could only give evidence of penetration, but he could not say if there was rape; and that exhibit P2 was prepared three days after the incident; he therefore submitted that, the evidence of PW5 created doubt. He further submitted that Exhibit P2 was prepared more than 48 hours after the incident, such evidence, he said shall be marred by uncertainty.
Learned counsel said evidence of PW5 did not in any way connect accused to the offence, that, in considering the evidence of a child, based on unsworn evidence, there must be corroboration to show that the accused person committed the offence; counsel Yusuf said, the evidence of PW1, 2, 4 and 5 taken as a whole cannot corroborate the evidence of PW3, that the trial Court did not warn its self of the risk of acting on the evidence of PW3. He urged this Court to resolve this issue in favour of the Appellant.
Learned counsel for the Respondent referred this Court to MIILLER VS. MINISTER OF PENSIONS (1947) 2 ALL ER 371, on the meaning of proof beyond reasonable doubt, which the Supreme Court adopted in LORI VS. STATE (1980) 8-11 S.C. 81 at 99 and AKALEZI VS. THE STATE (1993) 2 NWLR (PART 273).
Learned counsel for the Respondent said,the Appellant conceded that to prove rape, the prosecution must establish penetration. He said the evidence of PW5 led to only one conclusion that there was penetration of the female organ; this evidence counsel said is at page 34 -35 of the record of appeal. He referred the Court to the evidence of PW5 and said the trial court was right. On the admissibility of the Medical report, Mr Ajibade said, the Medical report is admissible in evidence without necessarily calling the medical officer, he relied on Section 249(3)(a) of the Criminal Procedure Code, he said such medical report is admissible at the discretion of the Court. He said the exercise of discretion by the learned trial Judge to admit Exhibit P1 cannot be questioned; Mr Ajibade said the evidence of PW5 and Exhibit P2 were conclusive, cogent, direct and straight forward enough to be relied upon. He said medical examination on the victim PW3 was conducted the same day the incident occurred first at Aboto medical centre and later at Afon General Hospital, he relied on evidence of PW1 at page 29 of the record of appeal.
Mr Ajibade said, the submission by learned counsel for the Appellant that medical report was prepared 48 hours after the event is misconceived. He said, PWs was being professional in his evidence when he said he could not rule out case of rape following his observation of the victim.
Mr Ajibade referred to Appellants brief of argument paragraph 4.9, where the Appellant contended that evidence of PW1, PW2, PW4 and PW5 were not sufficient to corroborate that of PW3 in sustaining charge of rape against the Appellant, in Response Mr Ajibade said, the evidence of PW4 sufficiently corroborates evidence of PW3, that the Appellant threatened and forcefully took PW3 into the bush in the afternoon of 11th May 2010. That PW2 said PW3 and PW4 came to him immediately after the incident crying, that exhibit P1 report of medical examination on PW3 showed that her vagina was wet and full of sperm and slight bleeding.
Learned Attorney General said PW3 knew the Appellant before the incident, he said the pieces of evidence put together sufficiently corroborate the evidence of PW3. He therefore urged the Court to resolve this issue in favour of the Respondent.
On issue number two, learned counsel for the Appellant referred the court to DAGAYYA VS. STATE (2006) ALL FWLR 1212 at 1250, and said corroboration is not always necessary for every case, but in some instances it is required either as a matter of practice or requirement of the law.
Learned counsel said in convicting for an offence of rape corroboration is required as a matter of practice, where the evidence is that of an unsworn testimony of a child, then corroboration is mandatory learned counsel relied on OMOTOLA VS. STATE (2009) ALL FWLR PART 464, and UPAHAH VS STA TE (2003) 6 NWLR (PART 816) 230 at 256 – 257.
Learned counsel referred the Court to page 31 of the record of appeal, and said, the victim PW3 was eleven years when the incident of rape took place, and she was thirteen years, at the time of trial, learned counsel said PW3 testified as a child, her evidence therefore needed corroboration and the learned trial Judge must warn himself before relying on such evidence, evidence of PW3 must be corroborated, and since evidence of PW3 is unsworn it cannot be relied upon to ground conviction. He also referred to the evidence of PW4 which he said is also unsworn evidence of a minor which cannot be relied upon as sufficient corroboration of testimony of PW3, he referred the Court to R. VS JOHN EKALAGU (1960) 5 FSC 217 learned counsel said at page 14 of Appellants brief that:
“At least, there is nothing in the entire record of appeal that tends to show by any thred of imagination, that both PW3 and PW4, gave sworn testimonies, or that they were even put through the test of knowledge. The law is that an unsworn testimony cannot be used to corroborate another unsworn another unsworn testimony.”
Learned counsel relied on IGBINE VS STATE (1997) 9 NWLR (PART 519). He said the court did not caution its self before relying on the testimony of the children (PW3 & PW4).
Learned counsel said, before relying on evidence of PW4, the court must warn its self of the danger in relying on evidence of a relative of victim, he relied on AHMED VS NIGERIAN ARMY (2011) 1 NWLR (PART 1227).
On the evidence of PW4,learned counsel said the evidence cannot hold water, counsel said, PW4 did not say she saw the Appellant committing the offence, this therefore created doubt and uncertainty of the actual commission of the offence. He said the ingredient of rape which involves having sexual intercourse and penile penetration were not established by PW4 whose testimony counsel said, was unsworn, counsel said unsworn testimony of a child cannot corroborate another unsworn testimony of another child.
On the testimony of PW5,as to medical examination of PW3,conducted about 48 hours after the incident, counsel said the evidence of PW5 is inconclusive, doubtful, and obscure, and that there is no connection between the evidence of PW4 and the actual commission of the offence by the Appellant, he said it cannot be proved that the penetration if any was as a result of the act of the accused person. He urged the Court to apply the principles in IGBINE (supra) ‘ he said the evidence of PW5 created graveyard hole on the case of the prosecution’ the doubt created must therefore be resolved in favour of the Appellant, he relied on AFOLALU VS STATE, (2009) 2 NWLR (PART 1127). He urged this Court to so resolve.
Learned counsel for the Respondent said the evidence of PW1, PW2, PW4 and PW5 and the contents of Exhibits P1 and P2 sufficiently corroborate the evidence of PW3, and therefore sufficient to ground conviction of the Appellant. Learned Attorney General for the Respondent made extracts from the judgment of the trial court at pages 51 and 52 of the record of appeal, and said, the conclusion reached by the learned trial Judge is infallible, counsel said the evidence of PW3 having been sufficiently corroborated, the learned trial Judge had no duty to warn himself before convicting the Appellant; learned counsel said, the purpose of corroboration is to support or strengthen the assertion of the prosecution, it is not to give validity or refuse credence to evidence which is deficient suspect or incredible; he relied on GABRIEL VS. THE STATE, (2010) 6 NWLR PART (1190) 280 at 290.
Counsel for the Respondent said from the record of what transpired at the trial court, the learned judge sufficiently acknowledged and appreciated the need to corroborate evidence of PW3; that the learned trial Judge found direct, cogent and compelling evidence of PW2, PW4, PW5 and Exhibits P1 or P2 as sufficient corroboration.
Mr. Ajibade said the evidence of PW4 disclosed that the Appellant grabbed PW3 and had sexual intercourse with her by force. PW2 saw the victim in pathetic condition and took her to PW1, and PW1 took her to the Hospital. He also said the mere fact that PW2 and PW4 are relatives of the victim does not make their evidence inadmissible;he relied on AKALONU VS THE STATE (2002) 12 MJSC 128 and said blood relationship of witness and the victim cannot alone make the evidence of the witness tainted,he relied on AKALONU VS STATE (2002) 12 MJSC 128 and urged this Court to discountenance Appellants submissions on this issue.
Learned counsel said PW3 and PW4, knew the Appellant well before the commission of the crime. Immediately after the incident PW3 went home crying and reported, to her parents who immediately took her to police with blood stain on her uniforms. The police led her to Aboto Hospital where Exhibit P1 was issued, and later PW5 examined her at Afon and issued out Exhibit P2. Learned counsel said,there was no break in the events as to allow any element of doubt in the case of the prosecution. Learned counsel therefore urged this Court to resolve this issue in favour of the Respondent.
On issue number three,learned counsel for the Appellant said for any evidence to corroborate the testimony of PW3,it must be evidence that directly links the accused person to the commission of the offence, that, it is not sufficient for the prosecution to prove that, rape was committed; it must go further to prove that,the Appellant and no other person raped PW3. Learned counsel relied on OGUNBAYO VS STATE, and said any piece of evidence offered as corroboration for the offence of rape must be cogent, compelling and unequivocal as to show that the accused committed the offence charged.
Learned counsel Yusuf said,the claim of the prosecution that the Appellant usually buys cigarette from PW3 and PW4 was emphatically denied by the Appellant and the prosecution failed to lead credible evidence to establish this fact; counsel said evidence of PW5 and the report in Exhibit P2 did not attribute penile penetration to the Appellant.
On the evidence of PW1, counsel said it did not implicate the Appellant as the culprit who committed the offence; that PW1 only acted on the report of PW2 and Pw4. That the evidence of PW1 stopped at medical examination of PW3; and that Appellant was arrested based on the identification of the Appellant by PW4. Learned counsel Yusuf urged this Court to resolve this issue in favour of the Appellant.
Learned Attorney general Ajibade conceded that evidence of PW5 alone did not identify the Appellant as the person responsible for the offence, but said the evidence established an essential ingredient of the offence, end same evidence corroborated the evidence led by the prosecution to sustain the charge against the Appellant.
Learned counsel for the Respondent referred the Court to page 30 of the record of appeal where PW1 the investigating police officer testified on oath, he said he took the Appellant to the scene of crime, and when PW3 saw him, she pointed at him as the person who raped her. He also referred the Court to page 33 of the record of appeal where PW3 testified, and said she knew the Appellant because he used to buy cigarette from them; Mr Ajibade said, the Appellant did not challenge this piece of evidence, instead he admitted at page 40 of the records of appeal that he is well known in the area; and that he was identified before his arrest where several other people sat with him; he also admitted that he went out to rear cattle on the day of the incident. Mr Ajibade said the evidence available at the trial was cogent, direct and compelling, he therefore urged this Court to so hold.
Learned counsel for the Respondent said, when PW3, reported the incident to PW2, he observed that she was weeping. He followed PW3 to the scene of crime where the offence took place, he saw and attempted to arrest the Appellant who attempted to attack him with matched, counsel said all these facts corroborated the evidence of PW3. He finally said the evidence of PW2 and PW4 were direct, cogent and unequivocal to sufficiently corroborate the evidence of PW3 victim of the offence. He urged this court to resolve this issue in favour of the Respondent.
Upon taking the three issues for determination, the principal areas of locus arising therefrom are:
1. Whether there was rape.
2. Whether the Appellant is connected to the offence.
3. Whether there was sufficient corroboration to justify conviction.
Learned counsel Yusuf said the Court was wrong in relying on the evidence of PW5 and Exhibits P1 and P2 in convicting the Appellant, on the other hand, learned counsel Ajibade said the evidence and the exhibits successfully established an ingredient of the offence of rape and corroborated other evidence.
To determine the relevance of the evidence of PW5, let me reproduce part of the evidence he gave before the trial court on 16th April 2012.
“SSC. The case is for continuation of hearing we have one witness in Court we are ready. PW5 Muslim, sworn on the Holy Qur’an, speaks English Language. I am Dr. Alao Abdulkareem, I live at No. 65, Agba-Dam Road Ilorin. I work at Sobi Specialist Hospital Ilorin. I live at General Hospital Afon, from May 2008 to January 2011. I hold Bachelor at Medic Ire Bachelor of Surgery MBBS in 2005, from University of Ilorin.
As a medical officer, I see patients listen to their complaints, do necessary investigations where necessary-provide adequate treatment. I also write reports in deserving causes.
I do not know the accused before the incident. I know Cpl Bolaji Aribiyi PWF in this case. I also know one Suliat Ibrahim PW3 in this case. I remember that I carried out medical examination on 13/5/2010 on PW3. On 13/5/2010, PW1 come to the general Hospital Afon, with a girl named Ibrahim Suliat, PW3, on the allegation that the girl was raped by A Bororo man, and that, the DPO requested me to examine the girl. I examined PW3, and wrote a report of my findings and the girl to the DPO. This is the written report of my findings (Exhibit P2. Identified by witness). My conclusion in Exhibit P2 was there was forceful penile penetration of the verging of PW3, and that, a case of rape could not be ruled out.”
PW5 was cross examined by learned counsel for the accused Adeseko; page 35 record of appeal.
“Question: As a medical officer at what soul do you say a victim was raped.
Answer: As a medical officer I can only talk of evidence of penetration, I cannot say there was rape.”
The learned trial Judge in this judgment relied on the evidence of PW5 exhibits P1 and P2; the learned trial Judge said at page 50 of the record of appeal as follows:
“……. The report of the examination which was admitted as Exhibit P1 reads in part as follows:
“On vagina examination the private part is very wet and full of sperm and slight bleedings”
PW1 further referred PW3 to Afon (General Hospital) where PW5 examined her and issued exhibit P2 as the result of his examination. Both in Exhibit P2, and in his sworn testimony in court PW5 said there was evidence of forceful penile penetration of the vagina of PW3, and that a case of rape could not be ruled out…”
From the above extract from the record of appeal. It is proper to conclude that there was forceful penetration into the vagina of PW3.
The next question is who did the forceful penetration? This takes me to the evidence of PW3 and PW4.
PW3 gave evidence at page 31 of the record of appeal. Part of her evidence is reproduced as follows:
“PW3: Muslim, sworn on Holy Qur’an, speaks Yoruba.
William (Registrar of Court) sworn to interpret from English to Yoruba and vice-versa.
I am Ibrahim Suliat, I live at Daji Aboto Oja Kwara State, I School at Foko Oja Grammar School Kwara State, I am 13 years of age, I am in JSS 2. I know the accused person.
“On 11th May 2010, myself and Nike Ibrahim were coming from the School and passed where the accused lay ambush. He came out of the bush, and used something to powder his face.
He held the two at us and threatened to cut us with cutlass if we ran. The accused took two of us to the bush. He released Nike Ibrahim. He ordered me to lie-down and remove my pant. He asked me not to shout, or he would cut me. He forcefully sexual intercourse with me. I wanted to shout, but the accused held me by the throat. After having sexual intercourse with me by force, the accused took another road and ran away. By the time I got up, I saw blood on my school uniform.
Myself and Nike Ibrahim started crying and went home. When I reached home, I narrated what happened to my father, I was taken to the Hospital while a report was made to the police. My friend Nike Ibrahim and the police went to arrest the accused because Nike Ibrahim knows the accused very well, my blood stained uniform is with the police, my scarf is also with the police. I was taken to the General Hospital Afon, where I was tested and given drugs treatment and told to go away.”
Under cross examination PW3 said.
“I know the accused before he raped me. He used to come and buy cigarettes from us.”
Nike Ibrahim referred to by the victim is PW4, she also gave evidence at the trial; her evidence is found at page 32 of the record of appeal, part of her evidence reads as follows:
“PW4: Muslim, sworn, on Holy Qur’an, speaks Yoruba language. I am Adenike Ibrahim, I live at Daji. I know PW3 Suliat Ibrahim. We are living together. We also attend the same school.
I know the accused before the Court.
On 11th May 2010 at about 2.00 in afternoon, we were coming from the School going back home, where the accused came out from the bush and threatened to cut us with cutlass, and we shouted. The accused took PW3 to the bush and raped her. He left her and ran away. We started weeping and cried home. We told our parents who reported to the police. PW3 was taken to the Hospital. The accused was later arrested.
Under cross examination PW4 was asked what role she played in the arrest of the accused she said.
“Answer: The police took me to identify the accused person because I knew him…
I knew the accused before the incident because he used to come and buy cigarette from us.”
PW4 was asked who older between her and PW4, she said PW4 was older. Evidence of age of PW4 is not on record, and there is only one PW4, before the trial court.
Learned counsel Yusuf said the offence could not be traced to the Appellant because the evidence led was not sufficient to establish his identify more so, the evidence of both PW3 and PW4 was unsworn and the learned trial Judge did not warn himself before relying on the unsworn evidence of the two minors.
The record of appeal shows clearly that both PW3 and PW4 were sworn on the Holy Qur’an, before they gave evidence at the trial, contrary to the submission by learned counsel for the Appellant.
PW3. Page 31 of the record of appeal:
“PW3: Muslim, sworn on the Holy Qur’an speaks Yoruba language.”
PW4: Muslim sworn on Holy Qur’an speaks Yoruba Language.”
The law is settled that record of proceeding or appeal binds parties and the Appellate court, until it is proved to the satisfaction of the Court that the records are wrong, so far there is no attempt on record to persuade us to depart from the records before us. I therefore take it, that the submission by learned counsel for the Appellant that both testimonies are unsworn is completely misconceived; the records ought to be genuine, authentic and binding on this Court. See AUDU VS. FRN (2013) 5 NWLR (PART 1348) 397 at 402; perhaps learned counsel for the Appellant did not examine the records as expected.
From the evidence of PW3 and PW4, identification of the accused was spontaneous and natural, the evidence of identity of the accused by PW3 and PW4 was extemporaneous and unrehearsed, both witnesses knew the accused before the incident and PW4 picked him among several other people when she accompanied the police to arrest him. She pointed at him because she knew him, and the accused in his own testimony said he is well known. In such an extemporaneous identification of an accused person, the court would not be wrong in relying on the evidence of PW4. See ILODIGIWE VS STATE (2012) 18 NWLR (PART 1331) page 9. Certainly it will not be improper to put the allegation of rape at the door step of the accused.
Appellant raised issue of corroboration in rape cases relying an UPAHA VS STATE (supra). Learned counsel said PW4 who corroborated the evidence of PW3 is victims relative, and that in such circumstance the evidence of PW4 may be tainted.
The supreme court in the recent decision in AKINDIPE VS. STATE (2012) 47 WRN 1 – 179 drew attention to the growing tendency to ascribe the category “tainted” to witnesses, that the expression is assuming some alarming dimension with potential capacity to unleash substantial confusion in the area of evidence. Learned counsel Yusuf said:
“The Court must be careful in considering the uncorroborated testimony of the relation of victim” found in appellants brief.
I must say with respect that the decision in AHMED VS NIGERIAN ARMY cited cannot apply in the instant case, by tradition and modern events people keep company within certain defined circles of friends or relations, like the instant case, both PW3 and PW4 attended same school and tragedy struck on their way home, the law must not insist that a stranger totally unrelated to the victim and PW4 must be available to offer corroboration, what is necessary for the Court to do in the circumstance is to satisfy its self that the evidence is credible and therefore reliable.
It is not enough for an Appellant or accused seeking to discredit the evidence of a witness just to flash the issue of being a tainted witness just because a witness is related to the victim without any concrete support to such assertion. See ILODIGIWE VS STAIE (supra).
PW5 and exhibits P1 and P2 established penile penetration, PW3 and PW4 traced the penile penetration to the Appellant, the evidence of PW5 and PW4 established sufficient and unequivocal corroboration as to commission of the offence and unrehearsed identification of the Appellant as the owner of the offence. For the above reasons, therefore, issues, 1, 2 and 3 are resolved in favour of the Respondent.
ISSUE 4;
Whether, the prosecution has a duty not to withhold evidence germane to the case of the Appellant, and whether the Court can rightly convict an accused where accused statement has been with held.”
Learned counsel for the Appellant said, the accused was taken to two police stations after his arrest, this fact was admitted by the prosecution, the Appellant also testified in Court, that he made two written statements at the police stations this testimony was not challenged. He referred to Section 167 of the Evidence Act 2011 and urged this court to presume that the statements if produced would be against the prosecution, that the Court is permitted to draw adverse inference from the conduct of the prosecution, he also relied on NIGERIA AIRFORCE VS. OBIOSA (2003) 4 NWLR PART 810, and OKEREKE VS STATE, (1998) 3 NWLR PART 540; that the prosecution must tender the statement to avoid the invocation of Section 169 of the Evidence Act.
Learned counsel for the Appellant said failure to produce the statement in court has created doubt which must be resolved in favour of the Appellant, he so urged this Court.
Learned Attorney General for the Respondent said there was nothing before the trial Court to suggest that statement was withheld, he also referred the court to pages 52 – 53 of the record of appeal the findings by the learned trial Judge;
Mr Ajibade said it is wrong in law to presume that an accused must make statement to the police where such fact is neither admitted by the police nor led in evidence in court, he said, the statement was not shown to exist, not exhibited in the proof of evidence, and there is no indication if the statement differs from his testimony in Court, learned counsel Ajibade said none of the prosecution witnesses admitted taking statement from the accused person, he said withholding evidence does not therefore arise. He urged the Court to resolve this issue in favour of the Respondent.
I read the evidence of PW1 Cpl Bolaji Ariyibi, he made no reference to any written statement offered at the police station, his testimony is found at page 29 to 30 of the record of appeal.
At page 38 of the record of appeal, Appellant said;
“When I was arrested at Aboto, market, the police took me to Offa police station where I spent three (3) days. At the head quarters Ilorin I spent one week.
The police took my written statement at both Offa police station and police headquarters Ilorin.”
PW1 was cross examined by Adeseko learned counsel for the Appellant, he did not raise the issue of Appellants statement to the police.
At page 52 of the record of appeal, the learned trial Judge made a finding on the statement, he said:
“On the submission by the learned counsel to the accused, that he should be discharged simply because the prosecution failed to tender in evidence written statements which the accused purported made to the police before trial, I wish to observe as follows:
1. No prosecution witness testified that the accused volunteered statement to the police, which was recorded down in writing.
2. The proof of evidence in this case did not contain a copy of the purported written statement of the accused,as it is the usual practice or indicate that any witness will give to that effect.
3. It was the accused himself who said he made statements to the police. He did not state whether what he said in that purported statement differs from his own evidence in court where he denied the alleged offence of rape.
4. Finally on this,the prosecution cannot he faulted for not tendering an evidence which has not been shown to be in existence.
I am satisfied and therefore hold that the prosecution has proved the charge of rape under Section 283 Penal Code against the accused beyond reasonable doubt and I accordingly convict him as charged.”
I am of similar opinion, that since Appellant gave his testimony in open court denying the allegation against him, his plea and testimony in court have over-taken his complain on failure by the prosecution to tender his statement, the existence of his statement is only known to him, no witness made reference to any statement offered by the Appellant, even where opportunity came for Mr Adeseko to cross-examine PW1 the investigating police officer, to reference was made to written statement of the accused.
I think in this circumstance, it is safe to hold that no such statement was made as found by the learned trial Judge.
Finally, it is trite law, that assessment of credibility of witnesses is within the province of the trial court, it is the only court that has the advantage of watching and observing the witness in court, OKOSI VS. STATE (1989) 1 NWLR PART 100.
The conclusion reached by the learned trial Judge on the purported statement of the accused Appellant cannot be faulted, this issue is also resolved in favour of the Respondent.
Having resolved all the issues in favour of the Respondent, it is clear this appeal is bereft of merit, it must fail, having failed, it is accordingly dismissed, the decision of the lower court is affirmed, for the avoidance of doubt I affirm conviction and sentence.
PAUL ADAMU GALINJE, J.C.A.: I have read before now the judgment just delivered by my learned brother Abubakar, J.C.A and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
PW3 gave her evidence on oath. The Record of this appeal shows at page 31 that PW3 was on oath when she gave evidence. Her evidence cannot by any stretch of imagination be said to be an unsworn testimony of a child.
Furthermore there is no evidence of the age of PW4 on record. PW4 under cross examination admitted that PW4 is older than her apart from herself, there is no other PW4. Her evidence has corroborated the evidence of PW3 and has strongly connected the Appellant to the commission of the crime, especially when the Appellant admitted under cross examination at page 40 of the record that he is well known in the area.
The prosecution’s failure to tender the extra judicial statement of the Appellant would have been fatal to its case if the Appellant did not give evidence in his defence. Since the Appellant gave evidence in court and the lower court’s judgment took into account such evidence in its judgment, the question bordering on such statement had been overtaken.
For these few remarks and the more detailed reasoning in the lead judgment of my learned brother, I too dismiss this appeal. The judgment of the lower court is hereby affirmed.
OBANDE FESTUS OGBUINYA, J.C.A.: I have had the opportunity to peruse, in advance, the judgment delivered by my learned brother, Tijjani Abubakar, JCA, and I agree, completely, with the reasons and conclusions encapsulated in it, T, also, abide by the consequential orders made therein.
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Appearances
Chief Olalekan Yusuf with him R. O. YusufFor Appellant
AND
Kamaldeen Ajibade Esq.For Respondent
