SAMINU IDI v. THE STATE
(2016)LCN/8458(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of March, 2016
CA/K/4/C/2014
RATIO
APPEAL: ISSUES FORMULATED; DUTY OF THE COURT IN RELATION TO ISSUES FORMULATED
In resolving the issues formulated in the briefs of argument which would determine the appeal, the Court can either adopt same or reframe or even formulate new issues, in the determination of the appeal. This is the law as enunciated in the case of FRN v. OBEGOLU (2006) 18 NWLR (Pt. 1010) P. 188 at 225 where it was held that after examining the issues for determination by the parties to an appeal, it is the duty of the Appellate Court to either adopt those in the briefs of argument or formulate new ones which it believes would determine the real complaint or grievance in the appeal. See also ADAKU V. ADIEH (1994) 5 NWLR (Pt. 346) P. 582 and IKEKWUHA V. OHAWUCHIN (1996) 3 NWLR (Pt. 435) P. 146. PER IBRAHIM SHATA BDLIYA, J.C.A.
CRIMINAL LAW: OFFENCE OF RAPE; ELEMENTS OF PROVING RAPE
Section 282(1) of the Penal Code, Kano State provides thus:
“282(1) A man is said to commit rape who, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstance –
(a) Against her will;
(b) Without her consent;
(c) With her consent, when her consent has been obtained by putting her in fear of death or of hurt;
(d) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(e) With or without her consent, when she is under fourteen years of age or of unsound mind. PER IBRAHIM SHATA BDLIYA, J.C.A.
CRIMINAL LAW: RAPE; MEANING AND NATURE OF THE OFFENCE OF RAPE
The offence of rape has been defined in the case of Posu v. State (2011) 2 NWLR (Pt. 1234) P. 392 @ 414 -416 as an unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man to have sexual intercourse forcibly and against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent. In legal parlance, means an 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 threat or intimidation of any kind or by fear or 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. In a charge for committing the offence of rape the prosecution must adduce cogent evidence establishing the following:
(a) That the accused had sexual intercourse with the prosecutrix;
(b) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation;
(c) That the prosecutrix was not the wife of the accused;
(d) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not;
(e) That there was Penetration Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) 157; Upahar v. State (2003) 6 NWLR (Pt. 816) 230; State v. Ojo (1980) 2 NCR 391; Okoyomon v. State (1973) 1 SC 21; State v. Anolue (1983) 1 NCR 71; Iko v. State (2001) 14 NWLR (Pt. 732) 221. See Ezigbo v. State (2012) All FWLR (Pt. 639) P. 847; Ahmed v. Nigerian Army (2011) 1 NWLR (Pt. 1227) P.89 @ 111; Upahar v. State (2003) 6 NWLR (Pt. 816) P. 230; Iko v. State 2011 FWLR (Pt. 68) P. 1161; Jegede v. State (2001) 14 NWLR (Pt. 733) P. 264 and Posu v. State (2011) 2 NWLR (Pt. 1234) P. 393 @ 416. PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: WHAT IS CORROBORATIVE EVIDENCE
What is corroborative evidence? In Posu V. The State (2011) 2 NWLR (Pt. 1234) P. 393 @ 419, corroborative evidence has been defined to be evidence which confirms the evidence of a prosecutrix in case of rape. In Ahmed v. Nigerian Army (2011) 1 NWLR (Pt. 1227) P. 89 @ 112 this Court held that corroborative evidence is no more than evidence tending to confirm, support and strengthen other evidence sought to be corroborated.
Evidence of corroboration must be an independent testimony, direct or circumstantial which confirm in some material particular not only that an offence has been committed, but that the accused person has committed it. Corroboration needs not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respect material to the charge. See Ogunbayo v. State supra P. 178. PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: CORROBORATIVE EVIDENCE; REQUIREMENTS BEFORE THE COURT CAN RELY ON CORROBORATIVE EVIDENCE
Before a Court of law can rely on and convict in a case of rape, evidence adduced to corroborate that of the prosecutrix must be:
(a) Cogent, compelling and unequivocal as to show without more that the accused committed the offence charged; and
(b) An independent evidence which connects the accused with the offence charged; and
(c) Evidence that implicates the accused in the commission of the offence charged.
(Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) 157; Sambo v. State (1993) 6 NWLR (Pt. 300) 399; Upahar v. State (2003) 6 NWLR (Pt. 816) 230; Ifejirika v. State (1999) 3 NWLR (Pt. 593) 59. Obadina, J.C.A put it more succinct in Upahar v. State (2003) 6 NWLR (Pt. 816) P. 200 @ 256 – 257, when he adumbrated that:
“It is now trite law that the proof required to establish offence of rape is not based on the solitary evidence of the prosecutrix. There must be an independent credible corroborative evidence. The nature and content of the corroborative evidence must not only corroborate and support the prosecutrix’s claim that the accused had raped her by penetrating into her vagina, it must also unequivocally implicate the accused person. It is immaterial that the same evidence corroborates some other portions of the prosecutrix’s evidence –
See R. v. Ekelagu (1960) SCNLR 458, (1960) FSC 217; R.V. Goldstein (1914) 11 CAR 27 at 29.
It is the bounden duty of the prosecution when leading evidence in proof of rape, to adduce independent evidence to corroborate the complaint made by the prosecutrix. See the combined provisions of Section 179(5) of the Evidence Act, and Sections 218, 221 and 223 of the Criminal Code. Corroborative evidence with respect to the offence of rape is evidence which shows or tends to show that the story of the prosecutrix that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused. See R.V. Baskerville (1916) 2 K.B. 658; See also Isaac Sambo V. The State (1993) 7 SCNJ 128 at 135; (1993) 6 NWLR (PT. 300) 399.” PER IBRAHIM SHATA BDLIYA, J.C.A.
CRIMINAL LAW: RAPE; WHAT IS THE MOST ESSENTIAL INGREDIENT OF THE OFFENCE OF RAPE
I agree with learned counsel that the most significant ingredient of rape is the penetration of the prosecutrix’s vagina. This position of the law has been enunciated in a plethora of decides cases by the Courts. For instance in Posu v. State (2011) 2 NWLR (Pt. 1234) P. 393 @ 414 the Supreme Court held that the most essential ingredient of the offence of rape is penetration, however slight. The slightest penetration will be sufficient to constitute the act of sexual intercourse. Iko v. State (2001) 14 NWLR (Pt. 732) 221; Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) 157. The most important and essential ingredient of the offence of rape is penetration. The Court will deem that sexual intercourse is complete upon proof of penetration of the penis into the vagina. Any or even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Emission or the rupture of the hymen is unnecessary to establish the offence of rape. See also State v. Ojo (1980) 2 NCR P. 39; Jegede V. State (2001) 4 NWLR (Pt. 733) P. 264 and Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) P. 157. PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
SAMINU IDI Appellant(s)
AND
THE STATE Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): The appellant was arraigned on a one count charge before the Kano State High Court (the lower Court) for committing the offence of rape under Section 282(1) of the Penal Code. The prosecution called 6 witnesses and tendered 2 exhibits to prove the charge as the appellant. The appellant testified in his defence, but called no other witness. The prosecution and the defence filled written addresses which were adopted by learned counsel accordingly. The lower Court delivered its judgment on the 25th of October 2013, wherein the appellant was found guilty, convicted and sentenced to a term of 12 years imprisonment with hard labour under Section 283 of the Penal Code. Dissatisfied with the conviction and sentence, the appellant filed Notice and grounds of appeal on the 9th of December, 2013, to this Court.
The appellant?s brief of argument was filed on the 12th of February, 2014. The respondent’s brief of argument was deemed filed on the 6th of July, 2015. The appeal was argued on the 14th of March, 2016. The appellant formulated 4 issues for determination on page 5 of his brief of argument.
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The respondent formulated 2 issues on page 3 of its brief of argument. In resolving the issues formulated in the briefs of argument which would determine the appeal, the Court can either adopt same or reframe or even formulate new issues, in the determination of the appeal. This is the law as enunciated in the case of FRN v. OBEGOLU (2006) 18 NWLR (Pt. 1010) P. 188 at 225 where it was held that after examining the issues for determination by the parties to an appeal, it is the duty of the Appellate Court to either adopt those in the briefs of argument or formulate new ones which it believes would determine the real complaint or grievance in the appeal. See also ADAKU V. ADIEH (1994) 5 NWLR (Pt. 346) P. 582 and IKEKWUHA V. OHAWUCHIN (1996) 3 NWLR (Pt. 435) P. 146.
After a dispassionate analysis of the issues for determination as contained in the respective brief of argument of the appellant and the respondent, same are compressed hereunder thus:
“WHETHER THE PROSECUTION ADDUCED CREDIBLE EVIDENCE PROVING THE COMMISSION OF THE OFFENCE OF RAPE BY THE APPELLANT UNDER SECTION 282(1) OF THE PENAL CODE BEYOND REASONABLE DOUBT AS REQUIRED BY LAW.?<br< p=””
</br<
2
Section 282(1) of the Penal Code (amended) provides as follows:
“282(1) A man is said to commit rape who, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstance –
(a) Against her will;
(b) Without her consent;
(c) With her consent, when her consent has been obtained by putting her in fear of death or of hurt;
(d) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(e) With or without her consent, when she is under fourteen years of age or of unsound mind.?
Did the prosecution adduce credible evidence at the lower Court proving the commission of the offence of rape by the appellant as required by law? Akinola Esq. who settled the appellant’s brief of argument submitted that the onus of proof is on the prosecution to adduce credible evidence to prove the guilt of the appellant. The cases of ldemudia v. State (1999) 7 NWLR (Pt. 610) P. 202 @ 225; Egwim v. State (1993) 13 NWLR (Pt. 635) P. 338 @ 351; and Section
3
135 of the Evidence Act 2011 as well as Section 36(5) of the 1999 Constitution (amended) to buttress the submission supra. As to what is meant by beyond reasonable doubt, counsel adumbrated that the evidence adduced by the prosecution must satisfy the Court as to prove that an accused person committed the offence alleged to have been committed by him. That the evidence must prove or establish every ingredient of the charge. The cases of Alonge v. Police (1959) 4 FSC P. 203; Bakare v. State (1987) 18 NSCC P. 267 and Amadi v. State (1993) 8 NWLR (Pt. 314) P. 664 cited to reinforce the adumbration supra.
?
In order to prove that the offence of rape has been committed, learned counsel submitted that the prosecution must adduce evidence that:
(a) That the accused had sexual intercourse with the woman in question
(b) That the act was done in the following circumstances:
i. Against her will
ii. Without her consent
iii. With her consent when her consent has been obtained by putting her in fear of death or hurt;
iv. With her consent when the man knows that he is not her husband and that her consent is given because she believes that he
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is another man to whom she is or believes to be lawfully married;
v. With her consent when she is under fourteen years of age or of unsound mind.
As to whether the prosecution adduced credible evidence proving penetration of the prosecutrix vagina, counsel contended that the evidence of PW2, 3 and 6 cannot be relied on in that there is doubt whether the bruises and the blood seen on the prosecutrix was before or after the day the alleged offence was committed. It has been argued by learned counsel that where there is doubt as to whether an accused person committed an offence, such doubt is to be resolved in favour of the accused person. The cases of Garba v. State (2011) 14 NWLR (Pt. 1266) P. 98 Tanko v. State (2009) All FWLR (Pt. 456) P. 1977 and Okoro v. State (1989) 12 SCNJ P. 191 cited to buttress the submission supra.
Learned counsel contended that the evidence of the prosecution witnesses relied on to convict the appellant are not reliable for inconsistency and contradictions interse and intra se. That where the evidence relied on are contradictory or inconsistent, a conviction cannot be sustained. The case of Fatoba v. Ogundahunsi
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(2003) 14 NWLR (Pt. 840) P. 323 @ 347 cited to buttress the contention supra. In conclusion, learned counsel did urge that the appeal be allowed in that the prosecution failed to adduce credible evidence proving the commission of the offence of rape against the appellant beyond reasonable doubt.
Sule Esq., of learned counsel to the respondent, did submit that the prosecution had proved the commission of the offence of rape against the appellant as required by law, That where all the ingredients of an offence have been established, the prosecution has proved the commission of an offence beyond reasonable doubt. The case of Bakare v. State (1987) 1 NSCC P. 272 cited in aid. Learned counsel referred to the ingredients of the offence of rape as enunciated under Section 282(1) of Penal Code (amended) and submitted that the evidence of PW1-6 proved the commission of the offence of rape by the appellant. It has been submitted that, the law only requires that the offence be proved beyond reasonable doubt, not beyond all doubt. The case of Bakare v. State supra relied on to buttress the submissions supra. As to the identity of the appellant as the person who
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raped the prosecutrix, learned counsel relied on the evidence of PW1, 2,3,4, 5 and Exhibit ‘A’ which the lower Court relied on in convicting the appellant.
On whether the prosecution adduced evidence on penetration of the prosecutrix, vagina, which is vital to conviction for committing rape, counsel contended that evidence of mere penetration, no matter how slight suffices to establish rape as enunciated in the cases of Iko v. State (2001) NWLR (Pt 732); Ogunbayo v. State (2002) 3 NWLR (Pt. 15) P. 80 and Rabiu v. State (2005) 1 NCC P. 578. On whether the evidence of the prosecutrix has been corroborated by independent witnesses, counsel submitted that, the entire evidence must be examined, and if the evidence of PW1, 2, 3, 4 and 5 are entirely examined, it cannot be doubted, the evidence of PW1, the prosecutrix has been corroborated by the evidence of PW2, 3, 4 and 5. The cases of Ahmed v. Nigerian Army (2001) 1 NWLR (Pt. 1277) P. 87 and Dangaya v. State (2006) 9 NWLR (Pt. 980) P. 647 cited to reinforce the submission supra.
Learned counsel drew the attention of the Court to Exhibit ‘A’ the statement of the appellant, which is confessional in nature,
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and submitted, that it is a credible and reliable evidence on which a conviction can be sustained. The case of Dia Pera Gira v. State (1996) 4 NWLR (Pt. 375) P. 388 and Yusuf v. State (1990) FWLR (Pt. 641) P. 1486 cited and relied on. In conclusion, counsel urged the Court to dismiss the appeal for lacking in merit, and affirm the judgment of the lower Court.
The appellant was arraigned before the lower Court on a one count charge for committing the offence of rape against Zainab Abubakar, a girl of 12 years under Section 282(1) of the Penal Code (amended) Kano State. He was tried convicted and sentenced to a term of 12 years imprisonment with hard labour. Dissatisfied with his conviction and sentence he appealed to this Court vide a Notice and grounds of appeal. The gist of the appellant’s complaint or grouse against his conviction for committing the offence of rape under Section 282(1) of the Penal Code, Kano State, is that the prosecution did not adduce cogent and credible evidence proving the commission of the offence of rape as required by law, that is, beyond reasonable doubt. Specifically, that the evidence of the prosecutrix, PW1, has not been
8
corroborated by the evidence of PW2-PW6, nor was he identified as the person who committed the offence. That penetration of the vagina has not been proved being an essential element of rape.
Section 282(1) of the Penal Code, Kano State provides thus:
“282(1) A man is said to commit rape who, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstance –
(a) Against her will;
(b) Without her consent;
(c) With her consent, when her consent has been obtained by putting her in fear of death or of hurt;
(d) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(e) With or without her consent, when she is under fourteen years of age or of unsound mind.?
The offence of rape has been defined in the case of Posu v. State (2011) 2 NWLR (Pt. 1234) P. 392 @ 414 -416 as an unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man to have sexual intercourse forcibly and
9
against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent. In legal parlance, means an 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 threat or intimidation of any kind or by fear or 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. In a charge for committing the offence of rape the prosecution must adduce cogent evidence establishing the following:
(a) That the accused had sexual intercourse with the prosecutrix;
(b) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation;
(c) That the prosecutrix was not the wife of the accused;
(d) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not;
(e) That there was Penetration
Ogunbayo v.
10
State (2007) 8 NWLR (Pt. 1035) 157; Upahar v. State (2003) 6 NWLR (Pt. 816) 230; State v. Ojo (1980) 2 NCR 391; Okoyomon v. State (1973) 1 SC 21; State v. Anolue (1983) 1 NCR 71; Iko v. State (2001) 14 NWLR (Pt. 732) 221. See Ezigbo v. State (2012) All FWLR (Pt. 639) P. 847; Ahmed v. Nigerian Army (2011) 1 NWLR (Pt. 1227) P.89 @ 111; Upahar v. State (2003) 6 NWLR (Pt. 816) P. 230; Iko v. State 2011 FWLR (Pt. 68) P. 1161; Jegede v. State (2001) 14 NWLR (Pt. 733) P. 264 and Posu v. State (2011) 2 NWLR (Pt. 1234) P. 393 @ 416.
Learned counsel to the appellant did submit that the lower Court erred in law when it convicted him when:
(i). The evidence of the prosecutrix (victim of the offence) has not been corroborated by the evidence of independent witnesses
(ii). No evidence adduced proving penetration of the vagina of the prosecutrix, which is an essential ingredient of the offence of rape.
(iii). In view of (i) and (ii) supra, the commission of the offence has not been established or proved beyond reasonable doubt at required by Section 138(1) of the Evidence Act, 2011.
?
Zainab Abubakar, the prosecutrix, gave evidence as PW1 before the
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lower Court. The relevant and material evidence could be found on page 6 of the printed record of appeal; she testified that:
“So he said that I should please come and buy tea for him so I was told to go but to come back quickly, when I went to buy the tea the man selling the tea was not there so I took the accused’s money back to him he then said I should go and buy him egg as I was going he followed me I heard someone running behind me I too started running as I was running the accused made me fall. I shouted the accused said if anything happens to me I am the cause.
As I was thinking to run he held me and said he will see how I will run. He then kept dragging me and throw me over the wall of an uncompleted building and I fell down on my shoulder. He removed my skirt, he removed my trouser and took it by the side. He lay on top of me I was telling him to get up he held my mouth and wanted to put sand in it. He then raped me by putting his penis in my vagina. He ran away and I ran to our house and told my mum. I showed her my trouser and skirt. The matter was reported to the Ward head who said the accused should be taken to Gwale Police Station.”<br< p=””
</br<
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PW2 is the grandmother of Zainab Abubakar, the prosecutrix. She testified on how the appellant went to their house. That the appellant invited the prosecutrix to buy tea for him. The prosecutrix later returned to the house. She went to bed. The following morning she complained to her that the appellant knocked her down and raped her. They went to the shop of the appellant and confronted him. PW3, Jamila Ahmed is the mother of the prosecutrix. She told the lower Court how the appellant invited her daughter to go and buy tea for him. That later she returned to the house but was appearing differently. Later they discovered that the prosecutrix was raped by the appellant. That her daughter was bleeding from her private part, the vagina. The matter was reported to the Ward Head who advised them to report to the Police. PW3, Doreth James, a police Officer, investigated the matter. He recorded the statement of the appellant. The statement is Exhibit ‘A’ in evidence. PW Muazu Sani, a Police Officer. He testified that a case of rape was reported to the police. He was on the team that investigated the matter. The statement of the appellant was recorded by a member of
13
the team. That ASP Sylayman confirmed the statement was voluntarily made by the appellant. PW6 is Dr. Salisu Ahmed of the Kano State Ministry of Health. He stated his qualification thus “MBBS and masters in Human Physiology. Attached to Abdullahi Wase Hospital. This is what he told the Court:
“On 22/6/2010 I was at the A and E Ward of Abdullahi Wase Hospital when a policeman came with a girl of about 12 years and asked me to examine her in respect of a report they received that she was raped. She was thoroughly examined and found to be okay except for her private part.
At the front of the virginal wall there was a dry blood covering the opening and by the side of the virginal wall there were injuries, we call them bruises with little blood coming from them. Also there was no hymen membrane it was absent. All these findings indicated that there was penetration of the virginal canal. she was placed on outer biotic and analgesics and was told to be sitting in a warm water to help in healing the wound.”
Under cross-examination he said thus:
?I saw blood ouzing out not beating leading means the running is to much while ouzing means
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sporting. I also said the Hymen membrane was pushing which means she is not a virgin. These three things oozing of blood bruises and absence of hymen were the only things I found out from the girl?s private part. I cannot say that it was the accused that caused those hymens.?
The appellant gave evidence as DW1. He denied doing anything with Zainab Abubakar, the prosecutrix. He denied making a statement to the police voluntarily.
Did the prosecution adduce evidence corroborating the evidence of the prosecutrix, Tainab Abubakar? What is corroborative evidence? In Posu V. The State (2011) 2 NWLR (Pt. 1234) P. 393 @ 419, corroborative evidence has been defined to be evidence which confirms the evidence of a prosecutrix in case of rape. In Ahmed v. Nigerian Army (2011) 1 NWLR (Pt. 1227) P. 89 @ 112 this Court held that corroborative evidence is no more than evidence tending to confirm, support and strengthen other evidence sought to be corroborated.
Evidence of corroboration must be an independent testimony, direct or circumstantial which confirm in some material particular not only that an offence has been committed, but that the accused person has
15
committed it. Corroboration needs not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respect material to the charge. See Ogunbayo v. State supra P. 178.
Before a Court of law can rely on and convict in a case of rape, evidence adduced to corroborate that of the prosecutrix must be:
(a) Cogent, compelling and unequivocal as to show without more that the accused committed the offence charged; and
(b) An independent evidence which connects the accused with the offence charged; and
(c) Evidence that implicates the accused in the commission of the offence charged.
(Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) 157; Sambo v. State (1993) 6 NWLR (Pt. 300) 399; Upahar v. State (2003) 6 NWLR (Pt. 816) 230; Ifejirika v. State (1999) 3 NWLR (Pt. 593) 59. Obadina, J.C.A put it more succinct in Upahar v. State (2003) 6 NWLR (Pt. 816) P. 200 @ 256 – 257, when he adumbrated that:
“It is now trite law that the proof required to establish offence of rape is not based on the solitary evidence of
16
the prosecutrix. There must be an independent credible corroborative evidence. The nature and content of the corroborative evidence must not only corroborate and support the prosecutrix’s claim that the accused had raped her by penetrating into her vagina, it must also unequivocally implicate the accused person. It is immaterial that the same evidence corroborates some other portions of the prosecutrix’s evidence –
See R. v. Ekelagu (1960) SCNLR 458, (1960) FSC 217; R.V. Goldstein (1914) 11 CAR 27 at 29.
It is the bounden duty of the prosecution when leading evidence in proof of rape, to adduce independent evidence to corroborate the complaint made by the prosecutrix. See the combined provisions of Section 179(5) of the Evidence Act, and Sections 218, 221 and 223 of the Criminal Code. Corroborative evidence with respect to the offence of rape is evidence which shows or tends to show that the story of the prosecutrix that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused. See R.V. Baskerville (1916) 2 K.B. 658; See also Isaac Sambo V. The State (1993) 7 SCNJ 128 at 135;
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(1993) 6 NWLR (PT. 300) 399.”
The evidence of PW2, PW3, PW4, PW5 and PW6 are corroborative of the evidence of the prosecutrix, Zainab Abubakar. Though it is desirable to corroborate the evidence of a prosecutrix in cases of rape, conviction can be sustained without the corroborative evidence of other independent witnesses. See Musa v. The State (2013) NWLR (Pt. 1359) P. 214 @ 221, where it was held that:
“It has to be restated that in offences of a sexual nature, it is very desirable that the evidence of the prosecutrix or complainant is buttressed by the 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 an uncorroborated evidence of the compliant in the use of corroborative evidence, however little or slight as it maybe, 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 similar privilege of hearing first hand, the witness, considering their demeanour including that of
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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.” Per Peter Odili JSC.
The learned Judge of the lower Court found the evidence of PW1, Zainab Abubakar (the prosecutrix) corroborated by the evidence of PW2, PW3, PW4, PW5 and PW6. Exhibit ‘A’, and ‘B’ are also corroborative of the evidence of the prosecutrix. I have no reason whatsoever to disagree or differ with the learned trial Judge. The evidence of the prosecution adduced to prove the commission of the offence of rape by the appellant are cogent and credible. so also is the finding of the learned trial judge. An appellate Court does not ordinarily interfere with findings and conclusions of a trial Court unless there are cogent and good reasons for doing so. see Ukaegbu v. Nwololo (2009) 3 NWLR (Pt. 1127) P. 194; and SPAN Ltd v. Adeniri (2008) 13 NWLR (Pt. 1159) P. 647 and NDCC Ltd v. BAP Ltd (2011) 11 NWLR (Pt. 1257) P.193.
?
Learned counsel to the appellant contended that the prosecution did not adduce cogent evidence establishing the
19
penetration of the prosecutrix?s vagina which is an essential ingredient of the offence of rape. I agree with learned counsel that the most significant ingredient of rape is the penetration of the prosecutrix’s vagina. This position of the law has been enunciated in a plethora of decides cases by the Courts. For instance in Posu v. State (2011) 2 NWLR (Pt. 1234) P. 393 @ 414 the Supreme Court held that the most essential ingredient of the offence of rape is penetration, however slight. The slightest penetration will be sufficient to constitute the act of sexual intercourse. Iko v. State (2001) 14 NWLR (Pt. 732) 221; Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) 157. The most important and essential ingredient of the offence of rape is penetration. The Court will deem that sexual intercourse is complete upon proof of penetration of the penis into the vagina. Any or even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Emission or the rupture of the hymen is unnecessary to establish the offence of rape. See also State v. Ojo (1980) 2 NCR P. 39; Jegede V. State (2001) 4 NWLR (Pt. 733) P. 264 and Ogunbayo v. State (2007)
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8 NWLR (Pt. 1035) P. 157.
The lower Court considered the oral evidence of PW6. The gist of the evidence of PW6 is that the prosecutrix’s hymen was recently ruptured. This piece of evidence corroborates the testimony of the prosecutrix that the appellant inserted his penis into her vagina. That she felt pain thereafter. She said she could hardly walk due to the pain in her vagina. It has been argued that the lower Court was not justified in relying on the evidence of PW6 when it held that there was penetration of the vagina of the prosecutrix. I do not subscribe to the argument of learned counsel to the appellant. Though the Medical Doctor (PW6) did not produce medical report, his oral evidence can be relied on in arriving at a decision whether there was penetration of the prosecutrix’s vagina or not in view of the finding that the hymen was recently ruptured. I am fortified in coming to this decision by the decision in a similar situation in the case of Ezigbo v. State (2012) 16 NWLR (Pt. 1326) P. 318 @ 328., where Ngwuta, J.S.C had this to say:
“The rupture of the hymen of PW2 as testified to by the Medical Report PW5 and as shown in the report
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Exhibit 2 which he tendered shows that the 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 the PW5 and Exhibit 2 fell short for corroborating the evidence of PW2 that she was raped by the appellant, the appellant himself provided the missing link between herself and the crime with which he was charged. He did so when he approached the parents of the PW2 and pleaded with them for forgiveness for what he had done to their daughter the PW2. In my view this plea amounted to a voluntary and unsolicited confession to the commission of the crime and corroborated the evidence of the PW2, BY his plea to the parents of the PW2 (his victim) appellant gave himself up to the law and became his own accuser.”
In the case at hand, the appellant admitted the act of sexual intercourse with the prosecutrix in his statement to the police. See Exhibit ‘A’ which is hereunder reproduced in part:
?Then on that fateful day 21/6/2010 at about 1900hrs I returned from my normal business then I went to the house of one Jamila Ahmed ‘f? of same address and called on the daughter
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one Zainab Abubakar ‘f? aged 12yrs old with a pretence of sending her to buy an egg for me. I gave her sum of one hundred naira N100.00 and as she left I followed her with her consent. As I got to a lonely area, I grabbed her and took her to the entrance ?Zaure’. I pulled her pants and inserted my manhood in her vagina and penetrated. I released in her vagina. I saw blood coming out from her vagina after I might have finish. The girl left and went to their house and informed her parents what happened. That?s why the mother came to me the following day with police men who arrested and brought me to Gwale Police Station on 22/6/2010. That’s all that transpired.”
Which is cogent and reliable justifying the findings and decision of the lower Court that the appellant had carnal knowledge of the prosecutrix.
The statement of the appellant, Exhibit ‘A’ is of great evidential value in proving the commission of the offence of rape. The Apex Court in the case of Yusuf v. State (2008) All FWLR (Pt. 641) P. 1486, held that:
“Confession in criminal procedure is the strongest evidence of guilt on the part of the accused person. It is stronger
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than the evidence of eye witness, because the evidence comes out of the mouth of the accused. He knows or knew what he did and he says or said it. There is no need for further Proof.?
Learned counsel to the appellant did urge this Court to hold that the prosecution did not prove the commission of the offence of rape beyond reasonable doubt. What is proof beyond reasonable doubt? In the case of Miller v. Minister of Pensions (1947) 2 All ER P. 372 which case has been relied on by the Courts in Nigeria for long, proof of beyond reasonable doubt means thus:
“It is not proof to the hilt.? It does not mean proof beyond the shadow of doubt. He observed “that the law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice.”
Muftau Bakare v. State (1987) 1 NSCC 26, at 272 where Oputa JSC stated:
“Proof beyond
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reasonable doubt stems out of a competing presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means what it says. It does not admit plausible and fanciful possibilities but, it does admit a high degree of cogency, consistent with an equally high degree of Probability.”
The lower Court relied on the evidence of the prosecutrix as PW2, which has been corroborated by the evidence of PW1, 3, 4, 5, 6, 7 ,8 and 9 as well as Exhibit ?6″. The law is settled, the commission of an offence is not to be proved beyond doubt. It is to be proved beyond reasonable doubt. In short, element of doubt can exist, but an offence can be said to have been committed if there is cogent evidence proving the ingredients of the offence. In the case of Posu v. State (2011) 2 NWLR (Pt. 1234) P. 393 @ 410 ? 411, the Supreme Court
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per Galadima, JSC said:
“By virtue of the provision of Section 135(1) of the Evidence Act, the prosecution must prove the ingredients of an offence beyond reasonable doubt to secure a conviction. Therefore, if on the entire evidence adduced before a trial Court, the Court is left with no doubt the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is the credible evidence of a single witness. On the other hand, where the Court considers the totality of the evidence and a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it, thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. (Afolalu v. State (2009) 3 NWLR (Pt. 1127) 160; Fatoyinbo v. A.G Western Nigeria (1966) 1 SCNLR 101; Alonge v. IGP (1959) SCNLR 516; State v. Danjuma (1997) 5 NWLR (Pt 506) 512.?
Mohammad JSC (as he then was) expressed same view in the case of Afolalu v. State (2010) All FWLR (Pt. 528) P. 812 when he said:
?The
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law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act. Therefore, if on the entire evidence adduced before the trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is on credible evidence of a single witness as happened in the case at hand on the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person benefit of the doubt resulting in his discharge and acquittal: Alonge ?v. Inspector-General of Police (1959) SCNLR 516; Fatoyinbo v. Attorney ? General, Western Nigeria- (166) WNLR 4 and State v. Danjuma (1997) 5 NWLR (506) 512.”
The evidence of PW1, 2, 3, 4, 5, and 6 taken together with Exhibit ?A” have established the following as found by the learned trial Judge of the lower Court.
(i) The
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appellant had carnal knowledge or illicit sexual intercourse with the prosecutrix, Zainab Abubakar of the age of 12years
(ii) There was penetration of the prosecutrix vagina causing the breakage of the hymen.
(iii) The evidence of the prosecutrix has been adequately corroborated by independent prosecution witnesses, PW1, 2,3,4, 5 and 6.
On pages 65 of the printed record of appeal, the learned trial Judge of the lower Court after evaluating the evidence adduced by the appellant and the respondent and ascribed probative value thereto arrived at a decision thus:
?The defence counsel contended that PW1 gave conflicting testimony which create doubt in the prosecution’s case but he stopped short of stating what aspect of PW1’s testimony is conflicting. I find no conflict in PW1?s testimony nor do I find any aspect of her evidence to be contradictory. Rather, it is the accused’s evidence that I find to be vague. As pointed out by the prosecution, the accused’s evidence is nothing, but a mere denial. There is nothing in the evidence of the accused which creates even a slight doubt in my mind that he committed the offence in question.
The
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prosecution has discharged the onus of proving the offence beyond reasonable doubt. Accordingly, I find the accused guilty as charged. He is convicted of the offence of rape punishable under Section 283 of the Penal Code.”
The decision arrived at by the learned trial judge of the lower Court in convicting the appellant for committing the offence of rape under Section 282(1) and punishable under Section 283, of the Penal code (amended), cannot be faulted. In the result, I resolve the lone issue against the appellant. The appeal therefore fails for lacking in merit. Same is hereby dismissed. The judgment of the lower Court delivered on the 25th of October, 2013 in charge No. K/35/2011, is hereby affirmed.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, IBRAHIM SHATA BDLIYA JCA gave me the privilege of reading before now the judgment just delivered. I agree with the reasoning of my learned brother and the conclusion that there is no merit in the appeal. I dismiss the appeal and affirm the judgment of the trial High Court of Kano State delivered on 25th September, 2013 convicting the Appellant and sentencing him to 12 years imprisonment with
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hard labour.
AMINA AUDI WAMBAI, J.C.A.: I have read the lead Judgment of my learned brother, IBRAHIM SHATA, BDLIYA, JCA. He has comprehensively resolved the sole issue in the appeal. I endorse his reasoning and conclusion that there is no merit in this appeal. I also dismiss the appeal as lacking in merit.
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Appearances
Chief Akingbola AkinolaFor Appellant
AND
Shu’aibu Sule, Esq. Director Civil Litigation with Amina Yusuf Yargaya, Esq. (DDPP) Ministry of justice (Audu Bako Secretariat) Kano StateFor Respondent
