THE STATE v. MUHAMMED MUSA
(2018)LCN/12144(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of November, 2018
CA/J/151C/2018
RATIO
CRIMINAL LAW: WAYS TO PROVE COMMISSION OF A CRIME
“In a criminal trial there are four ways to prove the commission of the crime, viz: (a) By evidence of eye witness; or (b) By confessional statement; or (c) By circumstantial evidence where direct or confessional statements were lacking; and (d) Admission by conduct of the accused person – See Ogogovie Vs. State (2016)12 NWLR (Pt. 1527)468 at 472; Moses Vs. state (2006)11 NWLR (Pt. 992)458 and Emeka Vs. State (2001)14 NWLR (Pt. 734) 666.” PER TANI YUSUF HASSAN, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
THE STATE Appellant(s)
AND
MUHAMMED MUSA Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Bauchi State High Court delivered on the 15th of December, 2017 in Suit No.BA/23C/2014 by Honourable Justice M.A. Sambo, wherein the respondent was discharged and acquitted for the offence of rape contrary to Section 282 and punishable under Section 283 of the Penal Code Law of Bauchi State. Being dissatisfied with the decision, the appellant appealed to this Court on two grounds of appeal.
The grounds of appeal shorn of their particulars are:
GROUND 1
“The learned trial judge erred in law when he failed to consider the testimony of PW2, the star witness, thereby occasioned a miscarriage of justice.”
GROUND 2
“The learned trial judge erred in law when he failed to give weight to the corroborated and admitted confessional Statement of the accused person.”
The charge reads:
“That you, Muhammad Musa ‘M’ of Gwallaga ward Bauchi LGA of Bauchi State, on about the 22nd day of August, 2013 at Gwallaga ward, Bauchi within the jurisdiction of this Hon. Court did had carnal knowledge on one Khadija Hussain ‘F’ of 13 years old of same address and as a result she sustained injury on her vagina thereby committed an offence contrary to Section 282 and punishable under Section 283 Penal Code and triable by this court.”
The case of the prosecution is that the respondent and the prosecuterix’s mother are husband and wife. The prosecutrix is the daughter of the former husband of the respondent’s wife, the respondent being the prosecuterix’s step-father.
The prosecuterix has been living with the respondent as her step father since when she was two years old, when her mother married the respondent.
On 22nd August, 2013, the respondent was said to have gone to his shop with the prosecuterix to assist him with the sale of firewood, which assistance she has been giving to him. On that 22/8/2013, the respondent was said to have forcefully had carnal knowledge of the prosecuterix without her consent. It was three days later the mother of the prosecuterix discovered what her husband did to her daughter. When he was taken to the police station, the respondent made a confessional statement describing the events of that fateful day.
The brief of the appellant dated 24th of April, 2018 and filed on 25th day of April, 2018, settled by Hussaini Ishaq Magaji Esq., (Chief State Counsel) Ministry of Justice, Bauchi State, identified two issues for determination to be:-
“1. Whether the appellant herein has proved the guilt of the respondent beyond reasonable doubt, with cogent, credible and compelling evidence as required by law. (Grd 1)
2. Whether the trial Court was right to disregard the corroborated confessional statement of the accused person. (Grd 2).”
The respondent’s brief settled by the I.M. Abdullahi Esq., was dated and filed on the 11th day of June, 2018. The respondent’s counsel adopted issue No. I formulated by the appellant with some few additions thereto. The reframed issue reads:
“Whether on the totality of the evidence adduced by the prosecution, the trial Court was right, in holding that the prosecution did not prove beyond reasonable doubt all the ingredients of the offence of rape against the respondent contrary to Section 282 and punishable under Section 283 of the Penal Code Law of Bauchi State” (Grds 1 & 2).
The appellant’s reply brief dated 21st day of June, 2018 was filed on the 22nd day of June, 2018. I shall utilize the respondent’s sole issue in resolving this appeal.
ISSUE ONE
Whether on the totality of the evidence adduced by the prosecution, the trial Court was right, in holding that the prosecution did not prove beyond reasonable doubt all the ingredients of the offence of rape against the respondent contrary to Section 282 and punishable under Section 283 of the Penal Code Law of Bauchi State.
The learned counsel for the appellant in referring to the case of Posu & Anor. Vs. The State on the ingredients of rape that must be proved to sustain a conviction, submitted that the testimony of PW2, the prosecutrix satisfied the requirement of law for the trial Court to give weight to her testimony. Also referred on this position is the case of Gambo Idi Vs. State (2015) SC 363.
It is also his submission that the condition stipulated in Section 209(1) 6(3) of the Evidence Act, 2011 has been complied with by the prosecution in this case, by the opening statement of PW2 while responding to questions put to her by the learned trial judge of the Court below. That the evidence of PW2 was overwhelming and sufficient to be given recognition and probative value.
In contending that the confessional statement of the accused person was admitted as Exhibit ‘A’ and duly corroborated by the unchallenged testimony of PW2, the trial Court disregarded the confession and considered no value to the content of the confessional statement of the respondent. Relying on the cases of Sunday Vs. State (2017) LPELR 42259 (SC); Emeka Vs. State (2001)32 WRN 37 at 51; Auta Vs. State (1975)1 ALL NLR 163 at 169 and Kim Vs. State (1991)2 NWLR (Pt. 175)622 at 635, it is submitted that even if the respondent denied his confessional statement, the Court can still convict once it is corroborated and admitted into evidence.
That the confession of the respondent only sufficed for his conviction. He referred to Gira Vs. State (1996) 4 NWLR (Pt. 443) 375 and Dibie Vs. State (2007)9 NWLR (Pt. 1038). We are urged to allow the appeal, set aside the judgment of the lower Court convict and sentence the respondent as charged.
In his response, learned counsel for the respondent argued that issue one formulated from one of the notice of appeal has no connection with the said ground and therefore deemed abandoned and the argument canvassed thereto goes to no issue and urged us to so hold. That if the Court finds the issue competent, his submission is that the trial Court was right in holding that the prosecution has failed to prove its case beyond reasonable doubt to warrant a verdict of conviction on the respondent punishable under Section 283 of the Penal Code.
Learned Counsel referred to Sections 282 and 283 of the Penal Code and the cases of Musa Vs. State (2013) 9 NWLR (Pt. 1359)21; Adonike Vs. State (2015)7 NWLR (Pt. 1458) and Isa Vs. State (2016) on the requirements of the ingredients to be established for the offence of rape to sustain a conviction and the punishment thereto. That the burden is on the prosecution to prove the guilt of the accused.
In referring to the evidence of PW1, the mother of the prosecutrix, it is argued on behalf of the respondent, that PW1 made a contradictory statement on the date of incidence. That while the charge reads that the offence was committed on 22nd August, 2013 which was a Thursday, PW1 said the offence was committed on Friday, 23rd August, 2013. Also that PW1 said the prosecutrix was taken to the hospital on 28th August, 2013 but the police investigating officer said she was taken to the hospital on 25th August, 2013. The learned counsel also argued that while PW2 said she was taken to the hospital from the Emir’s palace, PW3 testified that he took the victim to the hospital from the police station. That PW1, during cross-examination said all she told the Court was what she was told by her daughter, the prosecutrix. But under cross-examination PW2, the prosecutrix contradicted the evidence of PW1 when she said, she did not tell her mother of what happened even after the beating.
He referred to the evidence of PW1 in chief when she said she was informed of the incidence by her sister, but PW2 contradicted this evidence and said it was the son of her mother’s sister that told her mother, the PW1. It is submitted that the evidence of the prosecution witnesses could not be relied upon on these contradictions and was rightly disregarded by the trial Court.
He relied on the case of Ezeugo Vs. State (2013)9 NWLR (Pt. 1360) 508. That where testimonies of witnesses are contradictory, the evidence will be deemed unreliable as the Court is not at liberty to pick and choose which to believe. He referred to Ikpeazu Vs. Otti (2016)2 NWLR (Pt. 1513) 38 at 89.
Learned counsel for the respondent in referring to Section 37 of the Evidence Act 2011 and the case of Njoku Vs. State (2013) 2 NWLR (Pt. 1339) 548 and Odogwu Vs. State (2013)14 NWLR (Pt. 1373) 74, it is submitted that the evidence of PW1 as regards to the commission of the offence is hearsay and therefore inadmissible. The Court is urged to discountenance her evidence, as done by the trial Court.
With regard, the evidence of a child/minor, it is submitted that apart from the evidence of PW3 that he took the prosecutrix to the hospital and recorded the statement of the respondent, he did not carry out any investigation which was put forward before the Court to corroborate the evidence of PW2, a minor. The Court was referred to Adonike Vs. State (2015)7 NWLR (Pt. 1458) 237 at 285.
It is also the contention of the respondent counsel that all the prosecution witnesses testified on the medical examination carried on the prosecutrix but there was no medical report tendered to corroborate the evidence of PW2, a minor, which is fatal to the case of the prosecution and it is caught by the provision of Section 167 (d) of the Evidence Act. He referred to Aliyu Vs. State (2013) 12 NWLR (Pt. 1368) 403 and Sale Vs. State (2016)3 NWLR (Pt. 1499) 392.
On the confessional statement of the accused/respondent, Learned counsel referred to Section 28 of the Evidence Act and the case of Uwa Vs. State (2015)4 NWLR (Pt. 1450) 438 at 462, that before a confessional statement is acted and relied upon by a Court for conviction, certain conditions must be satisfied. He said PW3 in his testimony at pages 28-20 of the record stated that the respondent offered his confessional statement voluntarily. That before a confessional statement is admitted and relied upon by the Court, it must have been free and voluntarily. Where it is not, the Court will not act on it – Uwa Vs. State (supra) at 466 and Aliyu Vs. State (supra) at 94.
It is also the contention of the respondent’s counsel that Exhibit ‘A’, the confessional statement of the respondent was not given freely and voluntarily based on the evidence of PW2 the prosecutrix who said the police threatened to kill the respondent if he fails to say the truth. That it is also her evidence that the respondent did not admit to the commission of the offence before the Mai Anguwan Gwallaga and did not also admit at the police station until he was threatened to be killed, to which PW1, his wife and the prosecutrix mother pleaded on his behalf. It is finally submitted that there is no any fact outside the confessional statement which can be said to corroborate the confessional statement.
We are urged to disregard the confessional statement Exhibit ‘A’ as done by the trial Court and affirm the judgment of the trial Court.
Learned counsel for the appellant in his reply brief responded to the argument of the respondent’s counsel on the competency of issue one distilled from ground one of the notice of appeal, that the contention of the respondent is foul and shall not be given any consideration for failure to comply with Order 10 Rule 1 (a) of the Court of Appeal Rules, 2016, which provides for the objection to come by way of motion on notice. He submitted that the arguments are incompetent and of no effect. He relied on Biyi Poroye & ors Vs. Senator A.M. Makarfi & Ors (2017) SC 130, that the issue has not contravened any Rules of this Court.
On the issue of contradiction. It is submitted that minor contradiction that do not affect the credibility of witnesses may not be fatal. For contradiction to be fatal, it must be substantial. He referred to Uche Vs. State (supra).
With regard to the medical report, the appellants counsel said the production of medical report is not fundamental in this case having regard to the confessional statement of the accused/respondent.
Finally, on the admissibility of the Exhibit ‘A’, it is submitted that Exhibit ‘A’ was tendered without objection and it was not retracted or denied at trial and the argument therefore should be disregarded.
It has been firmly established that in criminal trials, the burden of proving the allegation beyond reasonable doubt against the accused person is always on the prosecution. It is a burden that never shifts and so credible evidence has to be led, in order to discharge that burden – Okoh Vs. State (2014)8 NWLR (Pt. 1410) 502 and Section 138 of the Evidence Act, 2011. The prosecution must establish the material ingredients of the alleged offence by adducing credible evidence in support of the charge – Micheal Vs. State (2008)13 NWLR (Pt. 1104) 361 and Aigbadion Vs. State (2000)7 NWLR (Pt. 666) 686.
In a charge of rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove the following:
(a) That the accused had sexual intercourse with the victim.
(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 victim was not the wife of the accused.
(d) That the accused had the mensrea; the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not.
(e) That there was penetration – See Idi Vs. State (2018)4 NWLR (Pt. 1610) 359 at 368-369.
The charge against the respondent is for the offence of rape which was defined by his Lordship Ogbuagu JSC in Ogunbayo Vs. State (2007) SC (Pt. 11) 1at 16 thus:
“Rape in legal parlance means a forcible sexual intercourse with a girl or woman without her giving consent to it. The most important and essential ingredient of the offence is penetration.”
It is submitted by the appellant’s counsel that the evidence of PW2 the prosecutrix was overwhelming and sufficient to be given recognition and probative value but the trial Court disregarded same. On the other hand, the respondent’s counsel argued that PW3, apart from taking the prosecutrix to the hospital and recording the statement of the accused/respondent, nothing was produced before the Court to corroborate the evidence of PW2, a minor, and the medical report was also not tendered. In Ogunbayo Vs. State (supra);
“It has been held that although it is desirable as a rule of practice that offence of sexual character that the evidence of the complainant should be strengthened by other evidence implicating the accused, there is nothing in law that prevents the Court from convicting on the uncorroborated evidence of the complainant; also that the evidence that will amount to corroboration does not have to be direct evidence of commission of the offence by the accused person provided it corroborates the evidence in material respect.”
At page 23 of the record is the testimony of PW2 the prosecutrix, thus:
“I know the accused person, he is my father. I was fetching him, firewood in his shop, it was raining, the accused closed my mouth inside shop and put his penis inside me inside my private part, he put inside my private part some white liquid, he clean it with wrapper and told me if I tell anybody at home he will slaughter me so I did not say it until after 3 days when PW1 (Mommy) was to make my hair, she told me to stand but I was not able to stand up as order by my mommy, she then beat me, but her sister said to her you stupid, you prefer your husband than your daughter, a son of my mommy’s elder sister informed her what had happened.”
Under cross-examination at page 14-15 of the record PW2 said:
“The accused is not my biological father. I have been with the accused since I was 2 years. My mother had 5 children with the accused person. Yes I saw the accused penis when he inserted it into my vagina. I saw his penis when he removed me trying to dress up. I don’t know the white something the accused put into my vagina.”
Considering the above testimony of PW2 she was very consistent that it was the appellant who raped her. She did not mention any other person. Under cross-examination she remained stable and consistent. There is no conflict, discrepancy or contradiction that are material so as to discredit the evidence of PW2, by creating any doubt in the mind of the Court. See Ibrahim Vs. State (1991)4 NWLR (Pt.186) 399.
PW1, mother of the prosecutrix in her evidence in chief at Pp. 20-23 of the record said:
“I know the accused person, he is my husband when the accused was about to got to his shop, he invited Khadija to sell firewood for him at his shop because he was going to his working place. She was there selling the firewood for the accused. After 3 days when she would not even work, her body paining her, I did not notice that, when she was to sit, she cried but declined to tell me what happened to her, I ordered her to stand, she refused to stand up, I then beat up and my elder sister came to her aid and told me I did not look at her movement. The accused then came back into our house and told me some people have beaten him, I don’t know them. He took himself to our ward head who know about the incidence. I was invited and the daughter. I went together with the girl to Mai Anguwan Gwallaga who called the accused but the accused did not admit committing the offence, he then took us to the police station.”
The accused/respondent who testified as DW1 reflected at page 52 of the record confirmed that PW1 is his wife and PW2 the prosecutrix is her daughter who regarded him as her father and has been assisting him in the sale of firewood in his shop. But denied the allegation of raping PW2, against hm.
The point here is that, even though the accused/respondent denied the commission of the offence against him, the evidence of PW1 has corroborated the evidence of PW2 to some material fact, when she said the prosecutirix cried when she was to sit down, and could not also stand due to pain. She was not cross-examined on this evidence. It is also her evidence that the ward head who is aware of the incidence invited her, the prosecutrix and the accused/respondent. Upon denial of the allegation by the accused/respondent, he took them to the police station. She was also not cross-examined on this evidence. She also testified that when the accused came back to the house, he told her he was beaten by some people. She was not cross-examined on whether the accused told her why he was beaten. She was also not cross-examined on why they were invited by the ward head, since her evidence is that the ward head (Mai Anguwan Gwallaga) was aware of the incidence.
The Supreme Court in Ighalo Vs. State (2016)17 NWLR (Pt. 1540)17 NWLR 1 at 4 held thus:
“Where an adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence.”
See also Oforlete Vs. State (2000)12 NWLR (Pt. 681) 415; Abogede Vs. State (1996) 5 NWLR (Pt. 448) 270 and Esene Vs. State (2017)8 NWLR (Pt. 1568) 337 at 345. In the instant case, the respondent was represented by a counsel all through the trial and who had the opportunity but never deemed it important to cross-examine PW1 on these material facts.
The respondent was deemed to have admitted that he had carnal knowledge of the prosecutrix without her consent. The account of incidence of rape given by PW2 established the ingredients of the offence.
By virtue of Section 39(c) and 282 (1)(e) of the Penal Code, a child under the age of 14 years is incapable of giving consent to sexual intercourse. More so the evidence of PW2 a minor, was given in compliance with Section 209(1) ,6(3) of the Evidence Act 2011 as evidenced on record. Thus once it is proved that the accused had sexual intercourse with a child under the age of 14 years, he is guilty of rape – Isa Vs. State (2016) 6 NWLR (Pt.1508)243.
Learned counsel for the respondent in his brief of argument argued on the contradictory statement of PW1 with regard to the date of incidence, the date the victim was taken to the hospital and from where she was taken to the hospital. It is also his argument that while PW1 under cross-examination said all she told the Court was what her daughter the prosecutrix told her, but that the prosecutrix PW2 contradicted her when she said she did not tell her mother what happened even after the beating.
Another contradiction raised by the respondent’s counsel was when PW1 in her evidence in chief said it was her sister who informed her of the incidence, PW2 said it was the son of her mother?s sister who told her mother of the incidence.
It is trite that it is not all contradictions in the testimony of the prosecution witnesses that is fatal. For any of such to be detrimental, it must be substantial and fundamental – Idi Vs. State (supra) and State Vs. Babuga (1996)7 NWLR (Pt. 406) 279.
In the instant case, the contradictions argued by the respondent’s counsel are not substantial to the detriment of the case of the prosecution. The contradictions therein are not material to discredit the evidence of PW1 and PW2, more particularly when the evidence of PW2 was consistent that it was the respondent who raped her. Also whether the incident happened on 23rd or 25th and whether the prosecutrix was taken to the hospital from the ward head’s palace or police station; whether it was the sister of PW1 or the son of the sister told PW1 of the incidence, do not go to the merit as they do not touch on the substance of the case against the accused/respondent.
Such contradictions are mere and usual which are usually and materially found in testimonies of witnesses due to human error or due to long period between the date the event happened and the date the witnesses testify which usually result in the witnesses forgetting. Thus, where contradictions are not on material points, they cannot be fatal to the prosecution’s case. Galadima Vs. State (2017) 12 NWLR (Pt. 1580) 339 at 346.
To my mind, even if there had been contradiction in the testimonies of prosecution witnesses they were not material contradictions as could cast a doubt in the mind of the trial Court.
On confessional statement, learned counsel for the appellant submitted that it was admitted as Exhibit ‘A’ and it duly corroborated the unchallenged testimony of PW2. The contention of the respondent’s counsel on the confessional statement of the accused/respondent is that Exhibit ‘A’ the confessional statement was not made freely and voluntarily by the accused/respondent. On the hand, the appellant’s counsel in response said Exhibit ‘A’ was admitted without objection and it was not retracted or denied at trial.
It is a cardinal rule of evidence and practice in civil and criminal cases that an objection to the admissibility of a document sought to be tendered in evidence is immediately taken when document is offered in evidence. It is a part of the inviolate rule that where objection has not been raised by the opposing party to the reception in evidence of a document, the document would be admitted and the opposing party would not afterwards be heard, except where the law specifically renders the document inadmissible – John Vs. State (2017) 16 NWLR (Pt.1591) 304 at 315. See also Afolalu Vs. State (2010) 3 NWLR (Pt. 1278) 589 and Eke Vs. State (2011)3 NWLR (Pt.1278) 589.
Learned counsel for the respondent cannot be taken seriously in his argument when he relied on the testimony of PW2 that the accused/respondent was threatened to be killed by the police if he did not say the truth. The accused/respondent did not say he was threatened by the police to make a statement. Counsel for the respondent did not object to the admissibility of the statement at trial when it was sought to be tendered. The argument of the respondent’s counsel on the involuntariness of the statement of accused/respondent is belated and it is discountenanced.
However I have an observation on the statement of the accused/respondent. When an accused person volunteers to make a statement, he should be cautioned. Thereafter, what he says is recorded in the language he understands and at the end, it is read over to him, to understand and sign if it is what he had said. It is only then, that the statement, if it was recorded in foreign language it will be translated into English which is the language of the Court. At trial both statements will be tendered for the Court itself to ascertain its authenticity and that it carries and conveys what the accused stated.
The evidence of PW3 Corporal Bilyaminu Yunusa of the State CID Bauchi who recorded the statement of the accused/respondent at page 42 of the record states:
“On 25th August, 2013, I was at the substantive crime office at Township Police station Bauchi, when the accused was brought before me by a team of vigilante together with the victim, I quickly took the victim to Hospital for treatment and then came back to the station and interviewed the accused, recorded his statement voluntarily. He made a confessional statement in our office, I recorded the statement in English language but translated it into Hausa. I then gave it to superior officer for endorsement. The accused signed and I countersigned.”
From the above there is nothing to show that when PW3 recorded the statement in English language, he read it over to the accused in Hausa language. Page 52 of the record where the accused/respondent testified as DW1 clearly shows that the accused/respondent speaks Hausa and not English. It was only under cross-examination at page 43 of the record that PW3 said the accused/respondent is an illiterate and he gave his statement in Hausa.
Exhibit ‘A’ is the English version of the confessional statement. The Hausa translated version is not tendered. Again PW3 said, the accused/respondent signed on Exhibit ‘A’ and he countersigned. But the only signature shown on Exhibit ?A? is the thumb impression of the accused person.
The Supreme Court in Yahaya Vs. Damkwambo (2016) 7 NWLR (Pt. 1511)282 at 292 held that:
“The language of Court is English language. Where a statement or deposition is made in another language and later translated to the language of the Court, the English language version must be tendered in evidence along with the version in the other language. In other words, where a witness as an illiterate has made his statement in a foreign language as in this case in Hausa language, both the statement in the foreign language and the English translation thereof have to be tendered together.”
In the instant case, the statement of the accused/respondent made in Hausa language was not tendered. Only the English language version was tendered without Jurat. See also Gunduri Vs. Nyako (2014) 2 NWLR (Pt. 1391) 211 and Asuquo Vs. State (2016)14 NWLR (Pt. 1532) 309 at 316. I therefore attach no weight to Exhibit ‘A’.
In a criminal trial there are four ways to prove the commission of the crime, viz:
(a) By evidence of eye witness; or
(b) By confessional statement; or
(c) By circumstantial evidence where direct or confessional statements were lacking; and
(d) Admission by conduct of the accused person – See Ogogovie Vs. State (2016)12 NWLR (Pt. 1527)468 at 472; Moses Vs. state (2006)11 NWLR (Pt. 992)458 and Emeka Vs. State (2001)14 NWLR (Pt. 734) 666.
In the instant case, there was no evidence of eye witness, the confessional statement relied by the prosecution to have corroborated the evidence of PW2 is lacking. The only occasion is circumstantial evidence based on the evidence of PW1 and PW3. PW1 in her evidence told the Court that when the accused/respondent returned home, he told her he was beaten by some people. It is also her evidence that the ward head invited her, the prosecutrix, PW2, and the accused in connection with the commission of the offence. Upon denial by the accused before the ward head, they were taken to the police station. PW3, the police investigating police officer said the accused/respondent was brought to the police station by vigilante together with the victim. The accused himself did not deny being invited by the ward head and he did not also deny being taken to the police station in connection with the commission of the offence. The only inference to be drawn in the circumstance of this case in that it is the accused who had carnal knowledge of PW2, the prosecutrix.
The Supreme Court in Ogogovie Vs. State (supra) held that, for circumstantial evidence to ground conviction, such circumstances relied upon should point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that the accused committed the offence. See also Yongo Vs. C.O.P. (1992) 8 NWLR (Pt. 257) 36 and Abieke Vs. State (1975) 9-11 SC 97. In the instant case, the unchallenged evidence of PW2 was positive and unequivocal that it is the accused who raped her.
The trial Court at page 109 of the record held:
“I am mindful of the fact that it is not a law that in Rape cases corroboration is mandatory, but the Court have to warn itself the danger of conviction on uncorroborated evidence of the prosecutrix.”
The trial Court went further to say at page 110 of the record: ‘That the sole evidence of the prosecutrix without any corroborated evidence no matter how well or of light cannot ground conviction before the Court.’
The learned trial judge has a misconception of the law. This is because the evidence of a single witness can ground a conviction if it is accepted and believed by the Court.
What is important is the probative value of the evidence – Ighalo Vs. State (2016) 17 NWLR (Pt. 1540) 1 at 7. See also Esene Vs. State (2017)8 NWLR (Pt. 1568)337 at 345.
In the instant case, PW2 gave credible evidence that it was the accused who raped her. Being her step father, she lived with him in the same house. The circumstances would have been different from a situation where the accused is a stranger to the victim. In any event PW2 was unshaken as to the person who raped her. Therefore a trial Court can rely on the sole evidence of a single prosecution witness, which is credible and unchallenged. If the evidence of a single witness sufficiently proves the case against the accused person, the trial Court accepts the evidence, there is no rule of law or practice dissuading the Court from convicting on the evidence. Esene Vs. State (supra) and Abogede Vs. State (1996) 5 NWLR (Pt. 448) 270. I agree from the facts of this case, the accused/respondent was indeed the one who raped PW2. Appeal succeeds. It is allowed.
I set aside the judgment of the Court below discharging and acquitting the accused, delivered on the 15th of December, 2017.
I enter a verdict of guilt against the accused/respondent and sentenced him to seven years imprisonment without option of fine.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the Judgment of my learned brother, Hassan J.C.A just delivered. I entirely agree with the reasoning and conclusion arrived thereat that the appeal is meritorious and should be allowed. My learned brother had meticulously considered and resolved all the issues raised for determination in this appeal. I have nothing more to add. I also allow the appeal and abide by all the consequential orders contained in the lead Judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I read in advance the leading judgment of my learned brother Tani Yusuf Hassan, JCA, and I agree with his reasoning and conclusion that there is merit in the appeal; for the reasons contained in the lead judgment as I also agree that the respondent was wrongly acquitted. In the event, I also allow the appeal, set aside the verdict of the trial Judge acquitting the respondent and in its place enter a verdict of guilt against him and impose on him a sentence of seven years imprisonment without option of fine.
Appearances:
H.I. Magaji (CSC)For Appellant(s)
Rabiu LawalFor Respondent(s)
