IDRIS DANJUMA v. KANO STATE
(2018)LCN/12441(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of May, 2018
CA/K/348/C/2015
RATIO
CRIMINAL LAW: INGREDIENTS OF ARMED ROBBERY
“In a charge of 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 mensrea, 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;
See Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) 157; Upahor 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.” PER PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT OF AN ACCUSED
“The law is trite, a statement made by an accused person is admissible in evidence notwithstanding its denial by the accused person. In Akpan v. The State (2002) NWLR (Pt. 682) P. 607, when considering whether to admit in evidence a statement made by an accused person but retracted, the Court held that:
‘Where an accused person makes an extra judicial statement of admitting the commission of the offence with which he is charge, that statement will still be considered or taken into account in the determination of his guilt not withstanding that in his evidence in Court, he lie, resile from the statement or gave evidence contradictory to the statement.’ In determining whether to attach any weight to the statement made by an accused person which has been retracted or not, the Courts, through a litany of decisions have laid down the tests to be applied or followed. For instance, in the case of Dawa vs. State (1980) 8-11 SC page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267 – 268: ‘On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. vs. Sykes (1913)8 Cr. App. R.233 and approved by the West African Court of Appeal in Kanu vs. The King (1952/55) 14 WACA 30 and I regard them as sound and golden.’ The questions a judge must ask himself are:
(1). Is there anything outside the confession to show that it is true?
(2). Is it corroborated?
(3). Are the relevant statements made in it of facts, true as far as they can be tested?
(4). Was the prisoner one who had the opportunity of committing the murder?
(5). Is his confession possible?
(6). Is it consistent with other facts which have been ascertained and have been proved?” PER IBRAHIM SHATA BDLIYA, J.C.A.
Before Their Lordships
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
IDRIS DANJUMAAppellant(s)
AND
KANO STATERespondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
The appellant, Idris Danjuma, was arraigned on charge No. K/126/2014 before the Kano State High Court of Justice (the lower Court) for committing the offence of rape punishable under Section 283 of the Penal Code, Kano State. He pleaded not guilty to the allegation of committing the offence. At the trial before the lower Court, the prosecution called five(5) witnesses and tendered documents which were admitted in evidence to prove the charge against the appellant. The appellant testified on his behalf and called a witness who testified in his defence. The learned trial judge, after considering the evidence before him, found the appellant guilty, and convicted him accordingly, and sentenced him to 25 years imprisonment, fined him N50,000.00 ordered payment of N100,000.00 to the prosecutrix. The appellant was aggrieved by the conviction, sentence and the award of compensation, hence the appeal to this Court.
The appellant’s brief of argument was filed on the 11th of April, 2016, with 4 issues distilled out of the two grounds of appeal on page 4 thereof.
The respondent filed brief of argument on the 2nd of February, 2018 out of time which was deemed properly filed on the 8/2/18. On page thereof, 4 issues for determination contained in the appellant’s brief of argument were adopted with a slight modification in Issue No. 4. After a dispassionate examination of the issues for determination contained in the appellant’s and respondent’s briefs of argument, I am of the view that the underlisted issues, if resolved, would determine the appeal justly and fairly. The Issues for determination in the appeal are therefore these:
(1) Whether the lower Court was right when it admitted and relied on the medical report (Exhibit D) in convicting the appellant.
(2) Whether the lower Court was right when it admitted and relied upon the confessional statement of the appellant (Exhibit E1 & E2) in convicting the appellant.
(3) Whether the lower Court was right when it suo moto ordered the appellant to pay compensation of N100,000.00 (One Hundred thousand Naira Only) or in default to serve a term of 5years imprisonment without any application from the prosecution or nominal compliant.
(4) Whether the lower Court was right when it convicted the appellant for the offence of rape that has not been proved beyond reasonable doubt.
ISSUE 1
Whether the learned judge of the lower Court was right in admitting and relying on Exhibit ?D? the medical report, in convicting the appellant for committing the offence of rape.
On this issue, Magashi Esq, of learned counsel, referred to Sections 241 and 249(3)(b) of the Criminal Procedure Code, and submitted that same were not complied with, therefore, the medical report, Exhibit ‘D’ was not properly admitted in evidence to be relied on in convicting the appellant for committing the offence of rape. Learned counsel referred to page 20 of the record of proceedings of the lower Court to buttress his submissions supra. That the failure to comply with Sections 241 and 249(3)(b) of the Criminal Procedure Code is a violation of the appellant?s right to fair hearing as enunciated in the case of Tsokwa Motors (Nig) Ltd v. UBA Plc (2008) ALL FWLR (Pt. 403) P. 1255.
It is counsel’s further contention that Exhibit ‘D’ was improperly admitted in evidence having not been tendered through the maker as provided by Section 83(1) of the Evidence Act, 2011, nor were reasons given as to why the maker was not called as a witness, before same was tendered and admitted in evidence. In view of the foregoing adumbration, counsel did submit that Exhibit ‘D’ is of no evidential value to be relied on to convict the appellant of committing the offence of rape. The cases of Talba v. Talba (2010) ALL FWLR (Pt. 22) P. 128, Iniama v. Akpakpabio (2008) 17 NWLR (Pt. 1116) P. 225, amongst others were cited and relied on to reinforce the submissions supra.
Yargaya Esq., did not agree with the submissions of learned counsel to the appellant that Exhibit D was wrongly admitted in evidence. Counsel referred to the proceedings of the lower Court recorded on page 6 of the record of proceedings, and did submit that the proceedings were translated by an interpreter from English to Hausa language. Furthermore, counsel contended that the appellant was represented at the trial by counsel. That since there was no objection to the conduct of the proceedings on the said day, it cannot be contended on appeal that the provisions of Section 241 and 249 (3)(b) of the Criminal Procedure Code were not complied with. That the appellant is deemed to have waived his right as to the requirement of an interpreter since he alleged he could not understand the language of the Courts being English language. The principles of law espoused in the case of Onyia v. The State (2009) ALL FWLR (Pt. 450) P. 625 was cited in reinforcement of the submissions supra.
Learned counsel further cited and relied on the principles of law expounded in the cases of Nwachukwu v. State (2007) ALL FWLR (Pt. 1372) and Ibrahim v. The State (2010) ALL FWLR to buttress the submissions that where there was no complaint or objection raised by an accused person or his counsel on the need for an interpretation of the proceedings of the Court, same cannot be raised at a later date, on appeal. It is counsel’s contention that since neither the appellant nor his counsel raised an objection to the proceedings being conducted, they cannot raise same on appeal.
On the provisions of Section 83(1) of the Evidence Act, 2011, counsel did submit that same was not breached when the medical report, Exhibit ‘D’ was admitted in evidence. That by virtue of Section 55 of the Evidence Act, 2011, and Section 249 of the Criminal Procedure Code, Exhibit ‘D’ was properly admitted in evidence.
Section 249(1) (2) (3)(a) (b) (c) of the Criminal Procedure Code, provides thus:
249(1) The evidence of any medical officer or registered medical practitioner taken on oath before a Court in the presence of the accused may be read in evidence in any inquiry, trial or other proceeding under this Criminal Procedure Code although he is not called as a witness.
(2) The Court may if it thinks fit summon such medical officer or registered medical practitioner to appear before it as a witness.
(3)(a) A written report by any medical officer or registered medical practitioner after he has examined any person or the body of any person may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by such person or where such person has died, the nature of the injuries received by such person and, where possible, the physical cause of his death.
(b) On the admission of such report, the same shall be read over to the accused and he shall be asked whether he disagree with nay statement therein any such disagreement shall be recorded by the Court.
(c) If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person the Court shall summon such medical officer or registered medical practitioner to appear as a witness.
In Onyia v. The State (2009) ALL FWLR (Pt. 450) P. 625, where an accused person was represented by counsel and no objection was raised to the proceedings being conducted without an interpreter, it was held that:
“There is clear evidence that he was represented by a counsel in the two lower Courts. Neither the appellant nor his counsel complained to the trial Court about any difficulty in understanding the proceeding.”
On the right of an accused person to be entitled to an interpreter, learned counsel to the respondent correctly stated the position of the law as enunciated in the case of Amanchukwu v. FRN (2007) FWLR (Pt. 380) P. 157, that: “…where a person has a right enuring to his benefit intentionally gives up his right, he would be deemed to have waived his right and cannot complained that he was not permitted to the exercise of his right.”
As to the admission of the medical report, Exhibit D through the Police Officer instead of the maker, the medical doctor, the provisions of Section 249 of the Criminal Procedure code, and Section 55 of the Evidence Act, would apply to render the said report admissible in evidence. I am in agreement with the submission of the learned counsel to the respondent, when it was submitted that the medical report Exhibit ‘D’ was properly and validly admitted in evidence though not tendered and admitted through the maker of the said document by virtue of Section 249 of the Criminal Procedure Code and Section 55 of the Evidence Act, 2011. In view of the foregoing adumbrated, I resolve Issue 1 against the appellant.
ISSUE 2
Whether the lower Court was right in relying on Exhibit E1. E2, the statement of the appellant, to convict the appellant for committing the offence of rape?
Magashi Esq., did contend that the lower Court was in error when it relied on Exhibit E1, E2 in convicting the appellant of the offence of rape. That Exhibit E1 was recorded in Hausa Language and was translated to English Language as E2 but the person who translated the statement in to English language did not testify, therefore Exhibit E1 and E2 cannot be relied on to convict an accused person. It is counsel’s contention that Exhibit E2 is hearsay evidence since the interpreter was not called as a witness at the trial of the appellant. The cases of Nwaeze v. The State (1996) 2 NWLR (Pt. 428) P. 1 @ 20 and JAMB v. Orji (2008) 2 NWLR (Pt. 1072) P. 552 were cited and relied on to buttress the contention that since Exhibit E1 was written in Hausa language and translated in to English language, which is Exhibit E2, the interpreter having not been called to testify at the trial, same is hearsay evidence which cannot be relied on to convict the appellant of the offence of rape. The cases of FRN v. Yaro & Anor (2012) 5 SCM P. 77 @ 96 and Nwaeze v. The State (1996) 2 NWLR (Pt. 478) P. 1020 and JAMB v. Orji (2008) 2 NWLR (Pt. 1072) P. 552 were cited and relied on to buttress the submissions supra.
Yargaya Esq., of learned counsel, did submit that the lower Court properly admitted and relied on Exhibit E1 and E2 when it convicted the appellant for committing the offence of rape. That the mere denial of making the statement by the accused person would not render the statement inadmissible in evidence. The case of Akpan v. State (2007) NWLR (Pt. 689) P. 607 @ 622 cited to buttress the submission that even were an accused person denied making a statement to the police, the same is admissible in evidence by the Court.
On the admission of Exhibit E1 and E2 in evidence counsel further contended that same were admissible by virtue of Section 83 and of the Evidence Act, and Section 127 (1) (2) of the Criminal Procedure Code. On the reliance on Exhibit E1, E2 to convict the appellant, it has been submitted that, confessional statement is the best evidence to be relied on to convict an accused person charged with the commission of an offence. The cases of Nsofor v. The State (2002) 8 NWLR (Pt. 220) p. 664; Sule v. The State (2009) ALL NWLR (Pt. 481; and Yusuf v. The State (2011) ALL FWLR (Pt. 411) P. 1486 were cited and relied on to buttress the submissions supra.
The law is trite, a statement made by an accused person is admissible in evidence notwithstanding its denial by the accused person. In Akpan v. The State (2002) NWLR (Pt. 682) P. 607, when considering whether to admit in evidence a statement made by an accused person but retracted, the Court held that:
‘Where an accused person makes an extra judicial statement of admitting the commission of the offence with which he is charge, that statement will still be considered or taken into account in the determination of his guilt not withstanding that in his evidence in Court, he lie, resile from the statement or gave evidence contradictory to the statement.’
In determining whether to attach any weight to the statement made by an accused person which has been retracted or not, the Courts, through a litany of decisions have laid down the tests to be applied or followed. For instance, in the case of Dawa vs. State (1980) 8-11 SC page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267 – 268:
‘On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. vs. Sykes (1913)8 Cr. App. R.233 and approved by the West African Court of Appeal in Kanu vs. The King (1952/55) 14 WACA 30 and I regard them as sound and golden. The questions a judge must ask himself are:
(1). Is there anything outside the confession to show that it is true?
(2). Is it corroborated?
(3). Are the relevant statements made in it of facts, true as far as they can be tested?
(4). Was the prisoner one who had the opportunity of committing the murder?
(5). Is his confession possible?
(6). Is it consistent with other facts which have been ascertained and have been proved?
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.
Since Kanu vs. The King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above. Among the long line of authorities may be mentioned: (1) The Queen vs. Obiasa (1962) 1 All NLR (2) Edet Obosi vs. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. Vs. The Republic (1996) NMLR 307 (4) Obue vs. The State (1976) 2 SC 141 (5) Jimoh Yesufu vs. The State (1976) 6 SC 167 (6) Ebhomien & Ors. vs. The Queen (1963) 1 All NR 365.
The law is trite, a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict. Where there are facts and circumstances outside the confession which make it probable that the confession is true, the Court can convict upon the confession and those additional facts and circumstances.
See Olabode vs. State (2009) 11 NWLR (Pt. 1152) page 254 at 273; Ogoala vs. State (1991) 2 NWLR (Pt. 175) page 509; Obiasa vs. Queen (1962) 2 SCNLR page 402 and Okabichi vs. State (1975) 1 All NLR page 71.
In Akpa vs. State (2008) 14 NWLR (Pt. 1106) page 72 at 92, Niki Tobi, JSC said:
In law, where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. See Milla vs. The State (1985) 3 NWLR (Pt. 11) 190 at page 95 paragraph C-D, the Supreme Court per Tobi, JSC stated the law thus:
‘Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused person. What better evidence than that? He knows or know what he did and he says or said it in Court. Is there need for any further proof’ I think not. ?
Tabai, JSC expressed same view in the case of Olabode Vs. State (2009) 11 NWLR (Pt.1152) page 254 at 273 thus:
‘It is settled law that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict.’
In Yusuf v. The State (2011) ALL FWLR (Pt. 318) P. 1486, the Apex Court held that:
‘Confession in criminal procedure is the strongest evidence of guilt on the part of the accused person. It is stronger that the evidence if eye witnesses 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 need for any further proof.’
On whether Exhibit E1 and E2 were legally admitted in evidence though the interpreter was not called to testify of the view that the provisions of Section 83 of the Evidence Act, 2011 and Section 127(1) and (2) of the Criminal Procedure Code would apply to render the Exhibits E1 and E2 admissible in evidence notwithstanding the translator having not been called as a witness to testify. The lower Court was therefore right in admitting and relying on Exhibit E1 and E2 in convicting the appellant. I resolve Issue 2 against the appellant.
ISSUE 4
Whether the learned judge of the lower Court was right when he convicted the appellant for the commission of the offence of rape that has been proven beyond reasonable doubt?
Magashi Esq., did submit that the prosecution did not adduce evidence proving all the essential elements of the offence of rape when he was convicted by the lower Court. Counsel referred to the essential elements of the offence of rape under Section 282(1) of the Penal Code and the principles of law enunciated in the case of Ezigbo v. The State (2012) 8 SCM P. 94 @ 101, to reinforce the submissions supra.
Counsel specifically referred to the evidence of PW1, 2, 3 and 4 and Exhibits C, D, E1 and E2 and did submit that the evidence of these witnesses and Exhibits ‘C’, ‘D’ and E1, E2 were not sufficient to warrant the conviction of the appellant for committing the offence of rape under Section 282(1) of the Penal Code. As to the evidence of the prosecutrix, PW1, the victim of the rape, counsel pointed that being of the age of 6 years, she is a minor, whose evidence cannot be relied on to convict without corroboration. The case of Jos NA Police v. Allah Na Gani (1969) NLA P. 107 cited in aid. As to what is the nature of the evidence that can corroborate the evidence of a prosecutrix in proving the commission of the offence of rape, the principles of law espoused in the case of Ogunbayo v. State (2002) 15 NWLR (Pt. 289) P. 78 has been cited and relied on, which the prosecution did not satisfy before the lower Court.
Counsel referred to the evidence of PW2 and did contend that it is hearsay being a narration of the prosecutrix, not what she saw or heard herself. On whether there was evidence to proof of Penetration of the vagina as an essential element of rape, counsel pointed out that the prosecution failed to adduce credible evidence to prove same. That the learned trial judge erred in law when he personally examined Exhibits C, E1, E2 and arrived at a decision which were not supported by evidence adduced in Court by the witnesses. On the contention that a judge is not permitted to examine documents outside the Court and arrived at a decision which has not been based on evidence adduced in Court by witnesses, the principles of law espoused in Durumiya Iya v. Com. of Police (1996) 1 LRNN P. 70 and CAN v. Lamido (2012) ALL NWLR (Pt. 602) P. 1316 @ 1338 were cited to reinforce the submissions supra. In conclusion, counsel did urge that Issue 4 be resolved in favour of the appellant, there being no credible evidence to sustain the conviction of the appellant for committing the offence of rape.
Yargaya Esq., did contend that by the evidence of PW1, 2, 3 and as well as Exhibits C, D, E1, and E2 the prosecution did prove the commission of the offence of rape which warranted the conviction of the appellant by learned trial judge. That once the prosecution adduced cogent and reliable evidence proving all the essential elements of the offence of rape, the commission of the offence has been proved beyond reasonable doubt. As to what is meant by proof beyond reasonable doubt, counsel cited and relied on to principles of law enunciated in the case of Mufulau Ballale v. The State (1989) NSCC P. 26 @ 772, and did submit that the prosecution had satisfied same which warranted the conviction of the appellant by the lower Court.
On whether the essential element, penetration of the vagina, has been proved by the prosecution, counsel relied on the evidence of PW1, PW2 and Exhibit ?D?, E1 and E2 and submitted that there was penetration of the vagina.
Counsel cited and relied on the principles of law espoused in Iko v. State (2001) NWLR (Pt. 721) wherein it was held that the slightest penetration of the vagina suffices for the purpose of committing the offence of rape. That the evidence of PW1, the prosecutrix, has been corroborated by the evidence of PW2 and PW3 which have not been discredited by the appellant. Concluding, counsel did submit that the evidence of PW1, PW2, PW3, PW4 and PW5 considered together with Exhibits C, D, E1 and E2, have proved the commission of the offence of rape beyond reasonable doubt by the appellant. The Court had been urged to resolve this issue in favour of the respondent.
Section 282(1) of the Penal Code, Kano State, has spelt out what must be proved for the commission of the offence of rape to be proved. These are:
282(1) A man is said to commit rape 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 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 act of sexual intercourse with a woman is said to be committed if it has been carried out:
(i) Against her will,
(ii) Without her consent
(iii) With her consent which the consent has been obtained by putting her in fear of death or hurt.
(iv) With her consent when the man knows the woman is not his wife.
(v) With or without her consent when she is under 14 years of age or of unsound mind.
In a charge of 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 mensrea, 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;
See Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) 157; Upahor 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.
The prosecutrix testified as PW1, she testified thus as record on page 11 of the printed record of proceedings of the lower Court:
“My names are Farida Nasiru. I am 7 years old. I live in Dausayi Kano Municipal Local Government Area. Yes I know the accused person. His name is Idi. Whenever we came back from school in the morning, he used to call me; he used to take me into his room or the frontage of the house of Baban Abba name Baba Shehu. Then when he took me to his room he would remove my trouser or skirt then he would put his penis into my vagina. Then he would say if I tell anyone he will slaughter me. I used to feel pain. Then he cleans the vagina with a rag.”
PW2, the mother of the prosecutrix testified thus as recorded on page 13 of the record of appeal.
I am 35 years old. I know the accused as he is my husband’s brother. He is before the Court for raping my daughter Farida Nasiru (PW1). The first time he was caught with her was in the morning. She went out at 10am playing about 1 year 3 months ago. Then she came in and I saw her in a strange behavior. She was squeezing her vagina. Then I asked what was it. She said it was the accused. Then she said he put her and covered her with a wrapper in a room at the Alhaji Shehu’s frontage house. Then I examined her and I saw her vagina was reddish and swollen.
PW3, Dan Dausiyi testified, whose evidence has been recorded on page 17 of the record of appeal testified thus:
“I know why he is before the Court. On one Friday at around 11am I came back from school as I was about to go into the house, I met the accused. He greeted me and then I entered my house. After about 10 minutes of my entering the house, I came out of the house. The entrance of my house then I faced the house, I saw the accused beside a wall backing me and he has a girl whom he pressed on the wall. The girl is nick name is Amfara but her father’s name is Nasiru Pw1. I saw the accused pressing the PW1 the victim on the wall. They were facing each other and the accused was leaning on her. His trouser was still on but I don?t know whether he unbutton it. The accused saw me. When he saw me he went out running and sweating. I asked one Muhammad where the accused went but he said he saw him running away sweating profusely.”
PW4, a police officer, testified as follows as recorded on page 19 of the record of appeal:
“I recorded the statement of the accused after words of caution. He signed and he confessed to me that he raped the girl Farida. Then I took him before my superior officer and he confessed before him. I recorded the statement in Hausa language and later I translated it into English language. I can recognize the statement by my signature and my handwriting. Yes this is the statement of the accused recorded by me in both Hausa and English language.? (Underlining mine)
The evidence of PW3 has corroborated the evidence of the prosecutrix, PW1. Corroborative evidence is no more than an independent testimony by a witness in addition to the evidence of the prosecutrix. See Ahmed v. Nigerian Army (2011) 1 NWLR (Pt. 1277) P. 89.
On the ingredient or element of penetration of the prosecutrix vagina, learned counsel to the appellant contended that the prosecution did not adduce cogent evidence establishing the 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. 391; Jegede v. State (2001) 4 NWLR (Pt. 733) P. 264 and Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) P. 157.
The prosecutrix testified as follows as to what the appellant did to her as recorded on page 11 of the record of appeal.
‘Then when he took me to his room he would remove my trouser or skirt then he would put his penis into my vagina. Then he would say if I tell anyone he will slaughter me. I used to feel pain. Then he cleans the vagina with a rag.’
The appellant in Exhibit E1, E2 stated as follows as contained therein:
‘I saw one Farida aged 6 years the daughter of my cousin Nasiru. I then called her into my room in our grandfather’s house at Dausayi Quarters. When she came into the room I asked her to remove her pant. I then removed my own trouser she remain standing while I bent down. I put my penis into her vagina but not all is only the head that entered and I released sperms in her body. But I cleaned her body.’
Learned counsel to the appellant did contend that the prosecution did not adduce credible and reliable evidence proving the commission of the offence of rape by the appellant beyond reasonable doubt as regard by Section 135 of the Evidence Act, 2011. What is proof beyond reasonable doubt? In Miller v. Minister of Pensions (1947) 2 All ER P. 372, which had been cited and relied on by the Courts in Nigeria over the years, proof beyond reasonable doubt, has been defined to be:
‘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 reasonable doubt stems out of a compelling 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 learned Judge of the lower Court relied on the evidence of the prosecutrix PW1, which has been corroborated by the evidence of PW2, 3 and 4 as well as Exhibits E1, E2. The law is settled, the commission of an offence is not to be proved beyond all 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 essential ingredients of the offence. In the case of Posu v. State (2011) 2 NWLR (Pt. 1234) P. 393 @ 410 -411, the Supreme Court per Galadima, JSC said:
‘By virtue of the provision of Section 138(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 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.’
In view of the evidence of PW1, 2, 3, 4 and Exhibits (C) (D) and E1 and E2, I entirely agree with the learned Judge of the lower Court when he found and held on page 95 of the printed record of appeal that:
‘I also find the prosecution has proved all the essential elements of rape against the accused person. The accused has not put up any or credible defence to the charge against him. In consequence thereof I find the accused guilty as charged. I therefore convict you Idris Danjuma of the offence of rape contrary to S. 282 and punishable under S.283 of the Penal Code as amended.’
I resolve issue 4 against the appellant.
ISSUE 3
Whether the lower Court was right when he suomotu ordered the appellant to pay compensation of N100,000.00 or in default to serve 5 years imprisonment when there was no application from the prosecutrix or any other person?
Learned counsel to the appellant did submit that the lower Court erred in law by ordering for the payment of compensation to the prosecutrix or to any other person whom same was not sought for. Counsel pointed out that a Court of law has no power or authority to award or grant what has not been sought for by the parties. The cases of Badmus v. Abegunde (1999) 71 LRCN P. 29, Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (Pt. 172) P. 150 and Obajimi v. A. G Western Nigeria (1967) 1 All NLR P. 31 @ 34 were relied on to buttress the submissions supra.
Yargaya Esq., for the respondent, did submit that the lower Court has the statutory or power to make an order for payment of compensation to the victim of the offence of rape, in addition to sentencing, if convicted. Counsel cited and relied on Section 33 of the Penal Code (Amendment No. 12) Law, 2014 contained in Kano State Gazette No. 12 vol. 46, 2014.
That the lower Court has the power to order for the payment of compensation to a victim of the offence of rape, cannot be disputed in view of the provisions of Section 33 of the Kano State Penal Code (Amendment No. 12) Law, 2014, contained in Kano State Gazette No. 12 vol. 46, 2014, which provides thus:
“Whoever commits rape, shall be punished with imprisonment for life or for any lesser term not below fourteen years and shall also be liable to a fine of Two Hundred Thousand Naira (N200,000.00) and in addition thereto be required by Court to pay compensation to the victim.”
The contention of learned counsel to the appellant that the order made as to payment of compensation to the prosecutrix, having not been sought, is unlawful, cannot be correct. Issue 3 is resolved against the appellant. In the result, having resolved the 4 issues against the appellant, the appeal fails for being unmeritorious. Same is dismissed. The judgment of the lower Court delivered on the 26th of June, 2015 is hereby affirmed.
UWANI MUSA ABBA AJI, J.C.A.: I was privilege to read in draft the erudite judgment of my learned brother, Ibrahim Shata Bdliya, JCA, just delivered and I agree with the reasoning and conclusions arrived at by my learned brother that the appeal is devoid of any merit.
It is for the reasons therein contained in the judgment which I adopt as mine, that I too dismiss this appeal as lacking in merit. The judgment of the lower Court delivered on the 26th June, 2015 is hereby affirmed.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother Ibrahim Shata Bdliya JCA, and am in agreement that this appeal lacks merit. I also dismiss it and affirm the judgment of the lower Court.
Appearances:
S. A. Magashi Esq.For Appellant(s)
Amina Yusuf Yargaya Esq.For Respondent(s)
Appearances
S. A. Magashi Esq.For Appellant
AND
Amina Yusuf Yargaya Esq.For Respondent
