ABAH v. C.O.P
(2022)LCN/15935(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 22, 2022
CA/ABJ/CR/116/2021
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
DANIEL ABAH APPELANT(S)
And
COMMISSIONER OF POLICE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE CRIMINAL OFFENCE OF RAPE
What is rape is well known in our laws. The law is well settled on the ingredients which the prosecution has to establish beyond reasonable doubt in order to secure a conviction for rape, which is the offence for which the appellant was tried and convicted in count one of the charge. In stating the essential ingredients to be proved in a charge of rape under the Penal Code, Galumje, JSC, stated as follows in Idam v. FRN (2020) LPELR (49564) 1 at 5 – 6: “Section 282 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 circumstances: (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. (2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty’ For the prosecution to prove the offence of rape, it must establish the following ingredients: – 1. That the accused had sexual intercourse with the woman in question. 2. That the act was done in circumstances following under any one of the five paragraphs in Section 282 (1) of the Penal Code. 3. That the woman was not the wife of the accused; or if she was his wife that she had not attained puberty. 4. That there was penetration of the vagina of the victim no matter how slight by the accused’s penis”. Put simply, ingredients of the offence of rape are: 1. That there was unlawful carnal knowledge (involving actual penetration of the vagina) of a woman or girl. 2. That the unlawful carnal knowledge was without the consent of the woman or girl. 3. That the consent was obtained by force or threat. See Lucky v. The State (2016) 13 NWLR (Pt. 1528) 128 at 169, The State v. Masiga (2018) 8 NWLR (Pt. 1622) 383 at 419. PER ADAH, J.C.A.
THE REQIREMENT OF THE LAW IN PROVING AN ALLEGATION OF THE COMMISSION OF A CRIME
My Lords, the requirement of the law is that an allegation of the commission of a crime must be proved beyond reasonable doubt by the Respondent, as the Prosecution by credible, cogent, competent and admissible evidence in order to secure the conviction of an accused person so charged. To succeed therefore, the Respondent must lead credible as well as admissible and competent evidence establishing the essential ingredients of the offence charged. In doing so, the Respondent need not call a horde of witnesses since in law, the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. However, where corroboration is required, then corroborative evidence must be led before the conviction of an accused person charged with such an offence requiring by law corroboration can be secured, failing which he is entitled to be discharged and acquitted. See Sections 135 of the Evidence Act 2011. See also Benjamin Uzoma V. Commissioner of Police (2021) LPELR – 55919(CA) per Sir Biobele Abraham Georgewill JCA, The State V. Ajayi (2016) 14 NWLR (Pt.1532) 196 at p. 235. PER GEORGEWILL, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja, hereinafter referred to as “trial Court”, coram judice, A.O. Otaluka J., delivered on the 18th November, 2019, in Charge No: FCT/HC/CR/150/2017, convicting the defendant/accused now appellant, (Daniel Abah) for the offences bothering on having unlawful sexual intercourse with an 8years old which is punishable under Section 31 (2) & 32 (1) of the Child Rights Act, Cap 50 Laws of the Federation of Nigeria, 2003. The trial Court found the appellant guilty and he was sentenced to 14 years imprisonment for both counts.
The two counts charge upon which the appellant was charged reads as follows:
COUNT 1:
That you Abbah Daniel “M” aged 35 years, on or about 26th January, 2017 at about 1300hrs respectively (sic) at Shine-light International School, Jikwoyi Phase 1, Abuja within the Abuja Judicial Division did sexually abuse one Blessing Mbatoon, female, aged 8 years, by having unlawful carnal intercourse with her inside the School toilet at the above named address, 31 (1) and punishable under Section 31 (2) of the Child Rights Act, Cap 50 Laws of the Federation of Nigeria, 2003.
COUNT 2:
That you Abbah Daniel “M” aged 35 years, on or about 27th January, 2017 at about 1300hrs, at Captain Street, Jikwoyi Phase 1 Extension, Abuja within the Abuja Judicial Division did sexually abuse one Blessing Mbatoon, female, aged 8 years, by having carnal intercourse with her in her parents’ house in the sitting room at the above named address, and you thereby committed an offence contrary to Section 32 (1) and punishable under Section 32 (2) of the Child Rights Act, Cap 50 Laws of the Federation of Nigeria, 2003.”
After the charge was read and explained, he pleaded not guilty to the two counts charge. Consequently, trial in the case commenced. The prosecution called a total of four (4) witnesses, and tendered documents. In defense, the appellant testified for himself as DW1 and called two other witnesses and closed his case.
At the close of trial, learned counsel at the trial Court adopted their respective final written addresses filed on behalf of the parties. In a reserved judgment delivered by the trial Court on the 18th of November, 2019, the appellant was found guilty of both counts one and two and consequently sentenced to 14 years on each count to run consecutively with no option of fine.
Upset by the findings, conviction and sentence of the trial Court, the appellant appealed to this Court vide a Twelve Ground Notice of Appeal dated 17th December, 2020 and filed on the same day. The Record of Appeal was transmitted to this Court on the 12th February, 2021.
In line with the rules and practice of this Court, parties filed their respective briefs of argument. Appellant’s brief was filed on 12th March, 2021, while the Respondent’s Brief was filed on the 25th October, 2021 but deemed properly filed and served on 28th March, 2022.
Counsel for the appellant, Adeolu Salako Esq., distilled two issues two issues for determination of this appeal. These issues are:
1. Considering the totality of evidence placed before the trial Court, vis-a-vis viva voce of the witnesses and documentary evidence, whether the prosecution established beyond reasonable doubt that the prosecutrix was raped and that it was in fact the Appellant that raped her, as required by law. (Distilled from Grounds 3, 4, 5, 8, 9 & 12).
2. Whether the learned trial judge properly considered and evaluated the totality of the evidence adduced by the parties at trial before convicting and sentencing the Appellant on the two count charge. (Distilled from Grounds 1, 2, 4, 6, 7, 10 & 11).
In response, S. I. Imoke Esq., counsel for the Respondent, adopted the two issues as submitted and argued by the appellant.
The two (2) issues are consequently adopted for the determination of this appeal, I shall consider and resolve the two issues together.
Issues One and Two:
These issues are – Considering the totality of evidence placed before the trial Court, vis-a-vis viva voce of the witnesses and documentary evidence, whether the prosecution established beyond reasonable doubt that the prosecutrix was raped and that it was in fact the appellant that raped her, as required by law; and
– Whether the learned trial judge properly considered and evaluated the totality of the evidence adduced by the parties at trial before convicting and sentencing the Appellant on the two count charge.
Counsel for the appellant while arguing these issues relied on Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria. He argued that every person who is charged with a criminal offence shall be presumed to be innocent until proven guilty. This presumption of innocence therefore places the burden of rebutting that presumption by proving the guilt of an accused person. He cited Section 135 of the Evidence Act, 2011. See Shaibu v. State (2017) 7 NWLR (Pt. 1564) 171 at 186 F-H, Chukwuma v. FRN (2011) 13 NWLR (Pt. 1264) 391 at 408, Paras. D-F and submitted that the prosecution has the onus of proving the commission of the crime as depicted in the particulars of offence beyond reasonable doubt. He referred the Court to Ankpegher v. State (2018) LPELR-43906 (SC). Counsel stated that the burden of proof does not shift if the prosecution must secure conviction. This is because there is presumption of innocence in favor of the Defendant and he has no obligation in law to prove his innocence.
Learned counsel for the appellant further submitted that when a person denies the charge of rape, the evidence of corroboration of the testimony of the prosecutrix is essential. Counsel relied on Posu v. State (supra), Idi v. State (2018) 4 NWLR (Pt. 1610) 359 at 381, Iweka v. State (2016) 13 NWLR (Pt. 1528) 128 at 170, Upahar v. State (2003) 6 NWLR (pt. 816) 230, Okereke v. State (1998) 3 NWLR (Pt. 540), Aruna v. State (1990) 6 NWLR (Pt. 155) 125, Chibuike v. State (2011) All FWLR (Pt. 559), Igbekwe v. Emordi (NWLR) (Pt. 1204), Chinekwe v. Chinekwe (Pt. 1208), Zubairu v. State (Pt. 1486), Okebata v. State (2013) LPELR-22474 (CA), Jegede v. State (2001) 14 NWLR (Pt. 733) 264, Ihejirika v. State (1993) 13 NWLR (Pt. 593) 59, Ahmed v. Nigerian Army (2011) 1 NWLR (Pt. 1227) 89 at 113, Section 37 of the Evidence Act, 2011, Section 209 (1) & (3) of the Evidence Act; Section 167 (d) of the Evidence Act, 2011.
Learned counsel for the appellant argued that where rape is denied by the accused, the sort of corroboration, the Court must look for is medical evidence showing injury to the private part of the complainant, injury to the parts of the body which may have been occasioned in a struggle, seminal stains on her clothes or the clothes of the accused or on the place the offence was committed. Counsel relied on Iko v. State (2001) 14 NWLR (Pt. 732) 221, Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) 157 at 188, Sambo v. State (1993) 6 NWLR (Pt. 300) 399, Okoyomon v. State (1973) 1 NMLR 292 at 297, State v. Amolue (1983) 1 NCR 71 at 79, Danladi v. State (2017) LPELR-43627 (CA).
Learned counsel for the appellant submitted that upon receipt of the printed record of appeal, we have painstakingly examined and scrutinized the said record over and over again and came to the conclusion that the exercise of evaluation carried out by the trial Court was not properly done and in fact in clear-cut defiance of the law. That the improper evaluation of evidence which gave birth to the findings of the trial Court occasioned miscarriage of justice on the part of the appellant. He therefore urged the Court to do judicial survey of the findings of the trial Court which is to be done with the aid of the law in order to correct the anomaly occasioned by the perverse judgment of the trial Court. Counsel relied on the cases of Obot v. State (2018) LPELR-45185 (CA), Alabura v. Maina (2015) LPELR-41653 (CA), Zang & Anor v. Ituma (2014) LPELR- 23521 (CA), Tometim v. State (supra), Okpanaya v. State (1969) 1 All NLR 420, Metuh v. FRN (2018) 3 NWLR (Pt. 1605) 1 at 87, Mbele v. State (2006) 1 SC (Pt. 11) 1 at 18, Nwakoala v. State (2005) 12 NWLR (Pt. 940) 634 at 679, Igbine v. State (1997) 9 NWLR (Pt. 519) 101 at 108.
Learned counsel argued that it is trite in criminal trial, the trial Court must also consider points in favor of the accused in the process of reaching its findings. Courts are also forbidden from descending into the arena of contest and conducting cases for any of the parties. Counsel relied on the cases of Ibrahim v. State (2014) LPELR-22306 (CA), Godwin Josiah v. State (1985) 1 SC 406 at 443, David Uso v. COP (1972) 11 SC 37 at 46-47, Tanko v. State (2008) 16 NWLR (Pt. 1114) 597 at 621, Suleimon v. State (2015) LPELR-25726 (CA), Balogun v. State (2013) LPELR-21119 (CA), Ihejirika v. State (1999) 3 NWLR (Pt. 593) 59, Okeke v. State (1995) 4 NWLR (Pt. 392) 676, Peter v. State (1994) 5 NWLR (Pt. 342) 45. Counsel urged the Court to set aside the judgment of the trial Court, discharge and acquit the appellant.
In response, learned counsel for the respondent while relying on Section 36 (5) of the Constitution of the Federal Republic of Nigeria; Section 135 of the Evidence Act. Asanya v. The State (1991) 3 NWLR (Pt. 180) 442, Ani v. The State (2003) 11 NWLR (pt. 830) 142, Ikaria v. State (2014) 1 NWLR (Pt. 1389) 639 at 645-655, Igabele v. State (2006) 6 NWLR (Pt. 975) 100, argued that a person charged with a criminal offence (like the appellant at hand) is presumed to be innocent until proven guilty, and that it is the duty of the prosecution, once the commission of crime is thrown up as an issue in any proceeding to prove same beyond reasonable doubt.
Learned counsel submitted that in discharging the burden of proof beyond reasonable doubt, the prosecution does not require a magic wand in order to attain its proof beyond reasonable doubt. All the prosecution is required to do simply is to put forward to the Court evidence which is strong, compelling and convincing against the accused that it leaves no reasonable man in doubt as to the possibility of the accused committing the offence. Counsel relied on the cases of Chukwuma v. FRN (2011) 7 NWLR (Pt. 1354) 597, Edamine v. State (1996) 3 NWLR (Pt. 438) 530 at 538 Para. A, Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 at 609 F-A, Posu & Anor v. State (2011)3 NWLR (Pt. 1234)393 at 416-417, Ogunbayo v. The State (2007) 1 NWLR (Pt. 1035) 157, Upahar v. The State (2003) 10 NWLR (Pt. 816)290, State v. Ogo (1980) 2 NCLR 391, Okeyhmor v. State (2005) 1 NCC 499.
Learned counsel further argued that evidence that is neither challenged or debunked remains good and credible evidence which should be relied upon by a trial judge who will in turn ascribe probative value to it. Counsel relied on Ebeinwe v. State (2011) 7 NWLR (pt. 1246) at 416 Paras. D-E, Babalola v. State (1989) NWLR (Pt. 115) 264 @ 281 Paras. D-E lko v. State (2002) 14 NWLR (Pt. 732) 221, Rutherford v. Richardson (1923) A.C. 1, Omoteloye v. The State (1989) LLRN 142.
Learned counsel for the respondent maintained that the law imposes a bounding duty on a party not merely to allege improper evaluation without more but with clinical precision to specifically delineate the error he quarrels with as well as demonstrate to the Court that but for the said error(s) the decision would have gone otherwise. Counsel relied on the cases of Oluyede v. Access Bank Plc (2015) 17 NWLR (Pt. 1489) 596, Enang v. Adu (1981) 11-12 SC 25, Okonkwo v. Onovo (1999) 4 NWLR (Pt. 597) 110; State v. Ajie (2000) 11 NWLR (Pt. 678) 434, Mogaji v. Odofin (1978) 4 SC 91, 1 Military Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 291); Theophilus v. State (1996) 1 NWLR (Pt. 432) 139; Akande v. Adisa (2012) 15 NWLR (Pt. 1284) 169. Counsel urged the Court to hold that the instant appeal is unmeritorious and unsustainable and accordingly uphold and validate the judgment of the trial Court.
The allegations against the appellant are allegations under Sections 31 and 32 of the Child Rights Act, 2003. This law provides as follows:
31. (1) No person shall have sexual intercourse with a child.
(2) A person who contravenes the provision of Subsection (1) of this Section commits an offence of rape and is liable on conviction to imprisonment for life.
(3) Where a person is charged with an offence under this section, it is immaterial that –
(a) the offender believed the person to be of or above the age of eighteen years; or
(b) the sexual intercourse was with the consent of the child.
32. (1) A person who sexually abuses or sexually exploits a child in any manner not already mentioned under this part of this Act commits an offence.
(2) A person who commits an offence under Subsection (1) of this Section is liable on conviction to imprisonment for a term of fourteen years.
The appellant was charged with the offence in Section 31 under count 1, while he was charged with the offence in Section 32 of the Act in count 2.
The offence in count 1 deals with unlawful sexual intercourse with a child which in Section 31 (2) is said to be an offence of rape. Count 2 deals with sexual abuse and exploitation of a child. The penalties differ. The offence of count 1 carries a term of Life Imprisonment while the offence in count 2 carries a term of 14 years imprisonment. The ingredients of these offences are very easy to assemble. They are:
(a) That the victim or prosecutrix is a child.
(b) That there was unlawful sexual intercourse with the child.
(c) That the accused had mens rea.
(d) That there was penetration.
It has been held that the most important ingredient of the offence of rape is penetration. However, penetration with or without emission is sufficient even where the hymen was not ruptured. The slightest penetration will be sufficient to constitute the act of sexual intercourse. See Iko v. The State (2001) 14 NWLR (Pt. 732) 221, Ogunbayo v. The State (2007) 5 SCM 154 Rutherford v. Richardson (1923) A.C. 1.
See Posu & Anor v. State (2011) LPELR – (1969) (SC), per Fabiyi, JSC.
In the instant case, it is well established that the prosecutrix is a child being 8 years old which is less than 14 years. The evidence before the Court is that the appellant is the official teacher of the prosecutrix. He was also hired to teach the prosecutrix at home after school. The agreement of the parties to teach the prosecutrix at home would be from 4pm and beyond but the truth is that the appellant on the fateful date admitted he came for the private lesson to the house of the prosecutrix at 2:pm instead of 4:pm agreed by the terms of his engagement. That 2:pm is a time when the mother and the brother of the prosecutrix are yet to arrive home from their own places of engagement leaving the prosecutrix to be home alone. The appellant from the circumstances of the case came to the house of the prosecutrix earlier than expected in order to take advantage of the prosecutrix, a child of 8 years old.
The prosecutrix was so clear and coherent in her story that he tried to escape through the back door but the appellant over powered her and called her to come and do her homework. The prosecutrix emphatically asserted that the appellant pulled down her pants and inserted his penis into her vagina. The episode at home is said to be different from the one at school.
What is rape is well known in our laws. The law is well settled on the ingredients which the prosecution has to establish beyond reasonable doubt in order to secure a conviction for rape, which is the offence for which the appellant was tried and convicted in count one of the charge. In stating the essential ingredients to be proved in a charge of rape under the Penal Code, Galumje, JSC, stated as follows in Idam v. FRN (2020) LPELR (49564) 1 at 5 – 6: “Section 282 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 circumstances: (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. (2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty’ For the prosecution to prove the offence of rape, it must establish the following ingredients: – 1. That the accused had sexual intercourse with the woman in question. 2. That the act was done in circumstances following under any one of the five paragraphs in Section 282 (1) of the Penal Code. 3. That the woman was not the wife of the accused; or if she was his wife that she had not attained puberty. 4. That there was penetration of the vagina of the victim no matter how slight by the accused’s penis”. Put simply, ingredients of the offence of rape are: 1. That there was unlawful carnal knowledge (involving actual penetration of the vagina) of a woman or girl. 2. That the unlawful carnal knowledge was without the consent of the woman or girl. 3. That the consent was obtained by force or threat. See Lucky v. The State (2016) 13 NWLR (Pt. 1528) 128 at 169, The State v. Masiga (2018) 8 NWLR (Pt. 1622) 383 at 419.
In the instant case, the evidence before the Court is that the prosecutrix was in the school and the appellant was her teacher. She said they were having combined classes in another class and that she excused herself from there to go to the toilet. The appellant she said, followed her surreptitiously into the toilet and that the appellant turned the bucket in the toilet upside down and made her (the prosecutrix) to sit on the bucket. That in the toilet there the appellant inserted his penis into her vagina and had intercourse with her. That the appellant threatened to kill her if she informed anybody of the evil. There is confirmed to be a bucket in the toilet. This story of the child found corroboration in the other pieces of evidence which circumstantially implicated the appellant. The fact that injuries and bruises were not noticed in the vagina region of the prosecutrix does not obviate the fact that the appellant had sexual intercourse with the prosecutrix or that he raped the prosecutrix. The medical report shows that the hymen was broken on observation of her vagina. The presumption of rape is more credible in the circumstance. The appellant, it must be noted is the class teacher of the prosecutrix. The appellant is also the after school lesson teacher recruited for the prosecutrix. There is no mistake in the identity of the appellant. The prosecutrix was examined and it was discovered that her hymen was broken.
There are enough circumstantial evidence establishing the facts that the prosecutrix was raped and that the rapist is no other than the appellant. The trial Court meticulously evaluated the evidence and found the two counts of the charge proved beyond reasonable doubt. This judgment is unassailable.
In the case of Jibrin v. Nigerian Army (2021) LPELR-55398 (CA), this Court per Dongban-Mensem, JCA, considered the debt the society owes a child under the law and held as follows:
“A certain standard of care and responsibility is expected from the appellant by virtue of Section 2 of the Child Rights Act, 2003 which provides that; “(1) A child shall be given such protection and care as is necessary for the well-being of the child, taking into account the rights and duties of the Child’s parents, legal guardians, or other individuals, institutions, services, agencies, organizations or bodies legally responsible for the child. (2) Every person, institution, service, agency, organization and body responsible for the care or protection of children shall conform with the standards established by the appropriate authorities, particularly in the areas of safety, health, welfare, number and suitability of their staff and competent supervision”. Furthermore, Section 11(a) of the Child Rights Act stipulates thus: “Every child is entitled to respect for the dignity of his person and accordingly, no child shall be: (a) subjected to physical, mental or emotional injury abuse, neglect or maltreatment, including sexual abuse.”
The appellant who was the teacher of the prosecutrix both in the school and in the house had truly failed in observing the statutory rights of the prosecutrix. He has in an obnoxious manner abused the privilege given to him to be of assistance to the prosecutrix and has violated the sanctity of the person of the prosecutrix. From the facts before this Court, the trial Court was right in its findings and conviction of the appellant.
From these facts therefore, the two issues are resolved against the appellant. The appeal is lacking in merit. The appeal is hereby dismissed. The decision of the trial Court in Charge No: FCT/HC/CR/150/2017, delivered on 1 8/11/2019, is affirmed. The conviction and sentence of the appellant are hereby affirmed.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My noble Lord, Stephen Jonah Adah JCA, had availed me a copy of a draft of the leading Judgment just delivered and I agree with the reasoning and conclusion reached therein to the effect that the appeal lacks merit and is therefore, liable to be dismissed.
My Lords, the requirement of the law is that an allegation of the commission of a crime must be proved beyond reasonable doubt by the Respondent, as the Prosecution by credible, cogent, competent and admissible evidence in order to secure the conviction of an accused person so charged. To succeed therefore, the Respondent must lead credible as well as admissible and competent evidence establishing the essential ingredients of the offence charged. In doing so, the Respondent need not call a horde of witnesses since in law, the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. However, where corroboration is required, then corroborative evidence must be led before the conviction of an accused person charged with such an offence requiring by law corroboration can be secured, failing which he is entitled to be discharged and acquitted. See Sections 135 of the Evidence Act 2011. See also Benjamin Uzoma V. Commissioner of Police (2021) LPELR – 55919(CA) per Sir Biobele Abraham Georgewill JCA, The State V. Ajayi (2016) 14 NWLR (Pt.1532) 196 at p. 235.
The onerous duty to prove the guilt of the Appellant beyond reasonable doubt is that fixed by law on the Respondent, and the Appellant carries no duty to prove his innocent as he is by law constitutionally presumed to be innocent until the contrary is proved by the Respondent. In law, the essential ingredients of the offences with which the Appellant was charged seems fairly settled and happily the parties are ad idem as to these essential ingredients and the onerous duty on the Respondent to prove by credible evidence, whether direct or circumstantial or admissible confessional statement the guilt of the Appellant beyond reasonable doubt as required by law.
There were copious circumstances led in evidence as in the Record of Appeal from which it can be irresistibly inferred that it was the Appellant and no one else that raped the prosecutrix. In circumstantial evidence is the proof of circumstances from which, according to the ordinary course of human affairs, the existence of some fact may reasonably be presumed. It is that evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is as good as, sometimes even better than, any other form of evidence in the sense that it amounts to circumstances which are accepted as to make a complete and unbroken chain of evidence. Interestingly, circumstantial evidence is regarded, very often, as the best evidence. It is therefore not a derogation of evidence, as many defense lawyers are wont to think, to say that a piece or pieces of evidence is circumstantial.
See Mohammed V. State (2007) 11 NWLR (Pt. 1045) 303. See also Vivian Odogwu V. State (2013) LPELR – 42802 (SC) 23, Adesina V. State (2012) LPELR-9722(SC) 12, Udoh V. State (2019) LPELR – 47096(CA), Peter V. State (2015) LPELR – 25574(CA) at Pp. 30- 31, Michael Peter V State (1997) LPELR – 2912 (SC) at pp. 24 – 25.
In law an appellate Court has no business interfering with the correct finding of the lower Court. The judgment of the lower Court was correct on both the conviction and the sentence passed on the Appellant. It cannot therefore, be interfered with but rather it should be affirmed by this Court as ably demonstrated and held in the leading judgment. I hereby so affirm it. See Unanowo V. Union Bank (2018) LPELR – 47307 (CA) per Sir Biobele Abraham Georgewill JCA. See also Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 at P. 198.
It is for the above few comments of mine but for the fuller reasons set out in the leading judgment that I too hold that the appeal lacks merit and liable to be dismissed. Consequently, I too hereby dismiss the appeal and shall abide by the consequential orders made in the leading judgment.
ISAH BATURE GAFAI, J.C.A.: I have had the advantage of reading in advance the judgment delivered by my learned brother Adah, JCA. I agree entirely with the reasoning expressed therein and the conclusion thereby reached. I adopt those reasonings as mine. By way of emphasis only. I shall however add a few words.
The entire twelve Grounds of Appeal before us can be streamlined into two broad complaints; namely absence of or improper evaluation of evidence (see Grounds 1 – 7) and absence of reliable Medical Report on the victim in the trial (see Grounds 8 and 9). The respective arguments for both parties on these complaints have been abundantly detailed in the leading judgment and are thus unnecessary to re-present here. In a nutshell however, the Appellant’s arguments under the first limb of the complaints are all to the effect that the trial Court omitted to evaluate crucial evidence in the trial or evaluated evidence improperly; for example by the arguments under his second Issue for determination such as the absence of direct eye witness to the offence, absence of corroboration, evidence of the victim being hearsay and unreliable Medical Report. The second limb is contains arguments that are basically the same with those under the first limb. Altogether, it is argued for the Appellant that the Respondent had failed to prove the offences beyond reasonable doubt which therefore renders both the conviction and sentence in the trial unsustainable.
Firstly, it is to be noted that this Court is generally disinclined to interfere with a trial Court’s evaluation of evidence because evaluation of evidence is essentially a function of the trial Court which had the opportunity of watching and listening to the parties, witnesses and the demeanour of each in the trial. This Court will only interfere where there is proven absence of or improper evaluation of the evidence by the trial Court. See Muyideen Esq. vs. NBA & Anor (2021) 13 NWLR (Pt. 2794), 393 at 419 paras. F-G. Clearly, what the Appellant is struggling to establish from these complaints is that the Prosecution had failed to establish the offences charged beyond reasonable doubt owing to these alleged failures or lapses in the Prosecution’s case.
Secondly, the evidence of a direct eye witness to the commission of the offence of rape is not a condition to the proof of rape because unless where nemesis catches up with the offender, the offence is discreetly committed. The evidence of the Prosecutrix, if believed by the trial Court, particularly where there exist some other credible evidence corroborating hers, is sufficient to prove the offence of rape. To insist on eye witness evidence for the proof of rape will be an unrealistic, unreasonable demand. See Habibu Musa vs. The State (2013) LPELR -19932 (SC).
Furthermore, the alleged contradictions in the evidence of the Prosecution at the trial are neither material nor go to the specific ingredients of the charge because all the alleged contradictions, even if so, do not altogether raise reasonable doubt on the main evidence that the Appellant did rape Prosecuterix; within the context of the provisions of Sections 31 and 32 of the Child Right Act (supra). See Dibie & Ors vs. The State (2007) LPELR – 941 (SC).
Let me reiterate also that neither the provisions of Sections 31 and 32 of the CRA (supra) nor case law make a Medical Report a condition to the proof of the offence of rape. It is at best proof of injury, if any, suffered by a victim. See Muhammad Ali vs. The State (2021) NWLR (Pt 1798), 159 at 183 – 185, Isah vs. Kano State (2016) LPELR-40011(SC).
On the whole, I too find no merit in this appeal, which I hereby dismiss and affirm the conviction and sentence on the Appellant by the trial Court.
Appearances:
Adeolu Salako, Esq, with him, Akintunde Ajayi, Esq, For Appellant(s)
S.I. Imoke, Esq, with him, Omokhoje Ehiede, Esq, For Respondent(s)