ABDULLAHI SAIDU v. THE STATE
(2019)LCN/12647(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of February, 2019
CA/K/213/C/2018
RATIO
CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF RAPE
“To establish an offence of rape, the prosecution is required by law to prove the following ingredients beyond reasonable doubts:
That a man had sexual intercourse with a woman:
i. Against her will;
ii. Without her consent;
iii. With her consent, when the consent was obtained by putting her in fear of death or hurt;
iv. With her consent, when the man knows that he is not her husband and her consent was given because she believes that the man is her husband; and
v. With or without her consent, when she is under fourteen years of age or of unsound mind.
See Section 282 (1) of the Penal Code, Cap. 3, Laws of Jigawa State, 2012 and the cases of SAMBO VS THE STATE (1993) 6 NWLR (PT. 300) 399; ISA VS. THE STATE (2016) LPELR 40011 (SC) and IDI VS. THE STATE (2017) LPELR 42587 (SC).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
CORROBORATION: WHETHER THE COURT REQUIRES CORROBORATION FOR THE EVIDENCE OF THE PROSECUTION
“It is noteworthy, that there is no statutory provision which makes it mandatory for the respondent to corroborate the testimony of the prosecutrix with regard to her narration of the rape incident. The requirement for corroboration evolved and was mainly developed by the Court in order to appropriately guide it while making its decision. Thus, a Court can validly convict an accused person for the offence of rape based on uncorroborated evidence of the prosecutrix or that of a credible eye witness, upon the giving of due regard to the evidence led by the parties and after warning itself; it is found that the guilt of the accused person has been established by the sole testimony of the prosecutrix or an eye witness. See the cases of LUCKY VS. THE STATE (2016) LPELR 40541 (SC); YAHAYA VS. THE STATE (2015) LPELR 40856 (CA) and SAMBO VS. THE STATE (Supra).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
ABDULLAHI SAIDU Appellant(s)
AND
THE STATE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Jigawa State High Court, sitting at Birnin Kudu (hereinafter referred to as the lower Court.) The judgment in question was delivered on the 23rd day of November, 2016 by Hon. Justice A. M. Abubakar, J. The accused person/appellant (hereinafter referred to as the appellant) was arraigned on a one count charge which reads thus:
That you Abdullahi Saidu ‘M’ of Farin Dutse Gwaram Local Government Area of Jigawa State on or about the 7th day of August 2015 at Farin Dutse village Gwaram Local Government Area of Jigawa State within Jigawa Judicial Division committed an illegal act to wit; you forcefully had sexual intercourse with one Kaltume Habibu 10 year old without her consent and thereby committed an offence of rape contrary to Section 282 (1) (e) of the Penal Code Cap. P3 Laws of Jigawa State 2012 and punishable under Section 283 of Jigawa State 2012.
The appellant was alleged to have forcefully and unlawfully had carnal knowledge of a 10 year old girl called Kaltume Habibu (PW3) in an uncompleted building. The appellant was alleged to have lured the girl by pretending to buy Pap called ‘Kunu’ in local dialect. The appellant was allegedly caught in the act by one Bala Garba, who testified as PW1. The said Bala testified that he was alerted by the brother of the appellant who mentioned, that he suspected that the appellant was with a minor girl in an uncompleted building and when he went there to confirm the suspicion, he saw the appellant having sexual intercourse with PW3. The said PW1, Bala Garba stated, that he confronted the appellant on the heinous crime and the appellant laid the blame on the devil and he profusely begged for mercy. And when he refused to hearken to his pleas, the appellant took to his heels, and jumped over the fence. PW1 stated that he ?took away his trouser and shoes and the girl’s wrapper and her slippers. However, the appellant was later arrested by the victim’s parent.
The prosecution/respondent (hereinafter referred to as the respondent) in its bid to prove the appellant’s guilt, tendered the medical report from Gwaram Primary Health Care Centre which showed that sperm was found on the victim’s laps but the hymen was intact, together with the hospital card as Exhibits P2 & P1, respectively.
The appellant in his defence only testified for himself and called no other witness or tendered any documentary exhibit. At the close of hearing, the learned counsel for the parties waived their rights to address the lower Court and the matter adjourned to a date for the delivery of judgment. The learned trial judge in a reserved judgment and after the review of all the pieces of evidence adduced by the parties, found the appellant guilty as charged and sentenced him to 10 years imprisonment.
The appellant was thoroughly dissatisfied with the decision of the lower Court and has thereby appealed against it by filing his notice of appeal on the 21st day of March, 2018. The appellant’s complaints against the judgment of the lower Court were detailed in his three grounds of appeal. The grounds of appeal without their particulars are reproduced below as follows:
GROUND ONE
The learned trial judge erred in law by holding that the prosecution has proved each of the ingredients of the offence of rape against the appellant beyond reasonable doubt and thereby occasioned miscarriage of justice to the appellant.
GROUND TWO
The learned trial judge erred in law when he attached weight and strongly relied on Exhibits P1 and P2 thereby occasioned miscarriage of justice to the appellant.
GROUND THREE
The learned trial judge erred in law when he dismissed the defence of alibi raised by the appellant and thereby occasioned miscarriage of justice.
In prosecution of this appeal, the parties filed and exchanged their briefs of argument. The appellant’s brief of argument was prepared by Muritala Abdul-Rasheed Esq. The said appellant’s brief was dated the 1st day of May, 2018 and filed on the 10th day of May, 2018. For the determination of this appeal, the appellant distilled two issues out of the three grounds of appeal for resolution. The issues are reproduced below as follows:
1. Whether the learned trial judge was right when he held that prosecution has proved its case beyond reasonable doubt. (Distilled from Ground One (1) of the Notice of Appeal).
2. Whether the trial Court was right to find that the testimony of the PW1, PW2 and other evidence adduced by the prosecution were sufficient to corroborate the evidence of the PW4 (sic) to ground a conviction. (Distilled from Ground (2) and (3) of the Notice of Appeal.
The respondent’s brief of argument on the other hand was settled by Musa M. Imam Esq., the Director Public Prosecutions, Ministry of Justice, Dutse, Jigawa State. It was filed on the 7th day of June, 2018. On his own part, the learned counsel for the respondent donated a sole issue for resolution. The issue is reproduced below as follows:
‘Whether the prosecution has proved its case beyond reasonable doubt against the convict.’
The set of issues donated by the learned counsel for the parties are materially the same except for the difference in drafting styles. The issue donated by learned counsel for the respondent is however more apt and the same is adopted by me for resolution and in the determination of this appeal.
LEGAL ARGUMENT ON ISSUE.
The learned counsel for the appellant commenced with the submission, that the burden of proving all the ingredients of the offence with which the appellant was charged, rest squarely on the shoulders of the respondent. He submitted further, that the respondent is also required by law to prove the ingredients of the offence beyond reasonable doubts, and the appellant has no burden whatsoever to prove his innocence, except where he intend to rely on some statutory defences. He referred us to the cases of JUA VS. THE STATE (2008) ALL FWLR (PT. 410) 7660; ABDURAUF VS. THE STATE (2008) ALL FWLR (PT. 410) 709 and Section 135 (1) of the Evidence Act, 2011.
The learned counsel for the appellant submitted, that in order to establish the offence of rape, the respondent is required by law to establish the following ingredients beyond reasonable doubts:
i. That the defendant had sexual intercourse with a woman against her will.
ii. That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force or by putting her in fear of death or of hurt.
iii. With her consent, when the man knows that he is not her husband and her consent was given because she believes that he is another man to whom she is or believes to be lawfully married.
iv. With or without her consent, when she is under fourteen (14) years of age or of unsound mind.
v. That mere penetration constitutes the offence of rape.
He referred us to Section 282 (1) (e) of the Penal Code Cap. P3, Laws of Jigawa State, 2012 (as amended); and the cases of MUSA NATSAHA VS THE STATE (2017) 18 NWLR (PT. 1596) 38 and IKO VS. THE STATE (2001) 14 NWLR (PT. 732) 221.
The learned appellant’s counsel then contended, that the respondent has failed to adduce credible evidence to prove the above highlighted ingredients of the offence of rape. He insisted, that the evidence of the respondent?s witnesses are materially contradictory and inconsistent. The learned counsel submitted, that ?the prosecution could not establish that the appellant did have an unlawful carnal knowledge of the prosecutrix in the sense that there had been forceful penetration of the penis into her vagina.
The learned counsel did a brief highlight of the testimonies of the appellant, PW2 and PW3 at pages 4 – 8 of the record of appeal; to buttress his point. Furthermore, the learned counsel for the appellant submitted, that ?the evidence led by the prosecution could not prove even the slightest penetration of the prosecutrix by the appellant. Their evidence could not implicate the appellant in that, the act of the appellant constitutes the offence of rape and having regards to the evidence before the trial Court, it cannot safely be concluded that the appellant did have an unlawful carnal knowledge of the prosecutrix as circumstances stated by the prosecutrix does not amount to rape thereby leaving the aforementioned element of the offence as having not been established beyond reasonable doubt by the prosecution and the appellant ought to be discharged and acquitted.
Also, the learned counsel for the appellant argued, that it cannot be said with certainty that the substance allegedly found on the prosecutrix private part was sperm or vaginal discharge because PW2 who allegedly conducted the test on the prosecutrix, stated that he used his intuition to determine that the substance was sperm and not that any scientific or laboratory test was conducted on the substance. He then submitted, that ?having regards to the accounts of the PW2 it cannot be safely concluded that the appellant did have an unlawful carnal knowledge of the prosecutrix thereby leaving the above ingredient of the offence as not having been established beyond reasonable doubt and the appellant ought to be discharged and acquitted.
In addition, the learned counsel for the appellant submitted, that the Supreme Court has enjoined the Courts to always seek for independent evidence to corroborate the evidence of the prosecutrix in a charge of rape. He referred us to the decisions in the cases of MUSA NATSAHA VS. THE STATE (Supra) and POSU VS THE STATE (2011) 3 NWLR (PT. 1234) 393. Once again, the learned counsel for the appellant did a brief synopsis and comparison of the evidence elicited from PW1, PW2 and PW3 and thereafter submitted, that the evidence of PW1 and PW2 did not materially corroborate the evidence of PW3. The learned counsel went on to submit, that the nature of corroborative evidence required by law in respect of the evidence of the prosecutrix in a charge for rape are:
‘a. Medical evidence showing injury to the private part or other parts of the prosecutrix body which may have been occasioned in a struggle; or
b. Semen stains on her clothes or the clothes of the accused person or on the place where the offence is alleged to have been committed.’
He referred us to the case of MUSA NATSAHA VS. THE STATE (Supra).
The learned counsel for the appellant also submitted, that ?none of the conditions stated above can be traced to the appellant in the circumstance of this case because evidence led at the trial Court did not implicate the appellant as to link him with the alleged offence. More so, the evidence of the PW3 was unsworn and the learned trial judge did not warn itself before relying on the unsworn evidence of the PW3 (Prosecutrix).? He referred us to the case of ISMAILA KIWO VS. THE STATE (2015) 3 NWLR (PT. 1446) 207. Thus, he submitted that all the pieces of evidence relied upon by the learned trial judge to convict and sentence the appellant for the offence of rape are not sufficient to establish all the ingredients of the offence with which the appellant was charged, and he urged us to so hold.
In reply, the learned counsel for the respondent submitted, that the respondent is required by law to prove the guilt of the appellant beyond reasonable doubts and not beyond all iota of doubts. He called in aid the decision in the case of JUNAIDU VS. THE STATE (2016) ALL FWLR (PT. 850) 1045. He further submitted, that the respondent had adduced adequate and credible evidence to establish or prove the ingredients of the offence with which the appellant was charged. The learned respondent’s counsel contended, that the respondent adduced circumstantial evidence and eye witness account to establish its case against the appellant. He pointed out, that the respondent called PW1 who caught the appellant in the act; PW2 who confirmed that sperm was found on the laps of the prosecutrix, and the prosecutrix herself who testified as PW3 and gave a graphic and vividly harrowing account of how the whole rape incident happened. Also, the learned counsel for the respondent submitted, that ‘penetration with or without emission is sufficient even where the hymen is not ruptured. The slightest penetration has served as sufficient to constitute the act of sexual intercourse.’
He support his submission with the cases of OGUNBAYO VS. THE STATE (2007) ALL FWLR (PT. 365) 408 AT 182 – 193; IKO VS. THE STATE (2001) ALL FWLR (PT. 68) 1161 and JEGEDE VS. THE STATE (2001) 14 NWLR (PT. 733) 264.
The learned counsel for the respondent further submitted, that contrary to the contention of the learned appellant?s counsel, the evidence of PW1 materially and directly corroborated the evidence of the prosecutrix (PW3) on the fact that the appellant had sexual intercourse with her. He therefore urged us to hold that the appellant was rightly convicted and sentenced to a 10 year term of imprisonment by the learned trial judge and resolved this issue in favour of the respondent.
It is apposite to point out at the onset that, the duty and/or responsibility of admitting evidence and ascribing probative value to the evidence duly admitted lies with the learned trial judge. Thus, where a learned trial judge has effectively discharged this function, an appellate Court has no business in disturbing or meddling with the finding(s) or decision of the learned trial judge, unless and except where the appellate Court can demonstrably show, that the decision of the learned trial judge is perverse, that is, it cannot be sustained having regard to the pieces of evidence admitted on record, or that the decision is against an established and subsisting position of the law.
To establish an offence of rape, the prosecution is required by law to prove the following ingredients beyond reasonable doubts:
That a man had sexual intercourse with a woman:
i. Against her will;
ii. Without her consent;
iii. With her consent, when the consent was obtained by putting her in fear of death or hurt;
iv. With her consent, when the man knows that he is not her husband and her consent was given because she believes that the man is her husband; and
v. With or without her consent, when she is under fourteen years of age or of unsound mind.
See Section 282 (1) of the Penal Code, Cap. 3, Laws of Jigawa State, 2012 and the cases of SAMBO VS THE STATE (1993) 6 NWLR (PT. 300) 399; ISA VS. THE STATE (2016) LPELR ? 40011 (SC) and IDI VS. THE STATE (2017) LPELR 42587 (SC).
It is noteworthy, that there is no statutory provision which makes it mandatory for the respondent to corroborate the testimony of the prosecutrix with regard to her narration of the rape incident. The requirement for corroboration evolved and was mainly developed by the Court in order to appropriately guide it while making its decision. Thus, a Court can validly convict an accused person for the offence of rape based on uncorroborated evidence of the prosecutrix or that of a credible eye witness, upon the giving of due regard to the evidence led by the parties and after warning itself; it is found that the guilt of the accused person has been established by the sole testimony of the prosecutrix or an eye witness. See the cases of LUCKY VS. THE STATE (2016) LPELR 40541 (SC); YAHAYA VS. THE STATE (2015) LPELR 40856 (CA) and SAMBO VS. THE STATE (Supra).
In the instant case, the respondent in its bid to prove the guilt of the appellant, called three witnesses and tendered documentary evidence. PW1, testified to the fact that he saw the appellant having sexual intercourse with the prosecutrix. The prosecutrix also stated that she was 13 years old at the time when she testified and or gave evidence and that the appellant lured her into an uncompleted building and forcefully and repeatedly stuck his penis into her vagina.
The prosecutrix who testified as PW3 gave a graphic account of her sordid experience at the hands of the appellant. She narrated how the appellant without remorse forced himself on her and adamantly insisted on defiling her even when he knew that she was going through pains and in tears. It is pertinent to observe herein that the narrations of the rape incident as given by both PW1 and PW3 were not controverted or shaken in any form or shape by the appellant while both of them were under cross-examination. In fact, the appellant did not cross-examine the PW3 at all and he also did not cross-examine the PW1 on any material aspect of his testimony.
In this regard, a reproduction of certain aspects of the testimony given by PW1 ? Bala Garba will drive home the point. In his evidence-in-chief, he said and I quote:
?Even as at then, we have been suspecting the accused person of taking small girls into that house. So I went into that house and I met him together with one girl Kaltume Habibu (prosecutrix) inside a room on top of her. I said to him what is all this? But he said to me it was an act of the devil I should please not expose him.<br< p=””
I then said to him it is the Satan that made you to have sexual intercourse with some ones daughter. But he pleaded with me to shield him. But I said I must expose him. I then took away his trousers and shoes and the girl?s wrapper and her slippers. While the accused person Abdullahi jumped over the fence and ran away. When I met the accused on top of the girl I saw him having sexual intercourse with her. As I came out with the accused person?s trouser and the girl?s wrapper, I notice there was money in his trouser pocket so I had to show it to some people who were with me so as not to be suspected of removing his money. We counted it and the money was about five thousand naira (N5,000.)
Later, he came back after he put on another trouser and he asked me to give his trouser, but at first I refused, but the people around said I should give him and I gave him. He went away.
While under cross-examination, PW1 continued thus:
I know the accused from childhood ….
I gave back the N5,000 to the accused person. I put back the money inside the pocket of the accused person’s trouser and I gave him the trouser. I had to give him back the trouser because the people took note of the happening and were ready to be witness and so they instructed me to return the trouser to him. The wrapper was collected from me and given back to the girl.
(See pages 4 – 5 of the record of appeal.)
From the exposition made above, the appellant can be rightly described as having nailed his own coffin, reinforced and provided corroborative details to the testimony of PW1. Thus, the appellant is deemed in law to have admitted or conceded to the evidence of both PW1 and PW3. See the cases of IGHALO VS. THE STATE (2016) LPELR 40840 (SC); ESENE VS. THE STATE (2017) LPELR ? 41912 (SC) and EGWUMI VS. THE STATE (2013) 13 NWLR (PT. 1372) 525.
The appellant having been deemed in law to have accepted the evidence led by the PW1 and PW3, there is no further need for the respondent to adduce additional evidence to establish the guilt of the appellant, because the pieces of evidence adduced by the said witnesses have successfully proved and/or established all the ingredients of the offence of rape with which the appellant was charged and the said pieces of evidence materially corroborate each other.
The above notwithstanding, the respondent tendered two documentary evidences to support the testimonies of the witnesses. The documentary evidences consist of hospital card of where the prosecutrix was treated and tested after the rape incident and medical report which confirmed the presence of substance suspected to be sperm which was found on the prosecutrix’s private part. It is instructive to observe that the documentary evidence were tendered and admitted in evidence as Exhibits P1 and P2 without any objection from the appellant or his counsel. Also, the learned appellant’s counsel did not also raise any form of objection against the exhibits at the final stage of address. Thus, it is too late in the day for him to be seen or heard, attacking the exhibits in this Court. See the cases of OSENI VS. THE STATE (2012) LPELR 7833 (SC) and ARCHIBONG VS. THE STATE (2006) LPELR ? 537 (SC).
In sum, I have given due and adequate considerations coupled with thorough examination and analysis of all the pieces of evidence adduced by the respondent and I completely agree with the decision reached by the learned trial judge, that the respondent has established all the essential elements of the offence of rape against the appellant, beyond reasonable doubts and he was rightly convicted by the said learned trial judge. Therefore, this issue is resolved against the appellant.
Having resolved the issue adopted for resolution in the determination of this appeal in the manner stated above, this appeal is found by me to be unmeritorious and it is accordingly dismissed. The judgment delivered by the lower Court on the 23rd day of November, 2016 in Charge No. JDU/89C/2016, whereby the appellant was convicted for the offence of rape and sentenced to 10 years imprisonment are affirmed/confirmed by me.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read in draft the lead judgment delivered by my learned brother, Massoud Abdulrahman Oredola, JCA. I am in agreement with him that the appeal lacks merit, and is fated to be dismissed.
I also dismiss it and affirm the conviction and sentence of the lower Court.
Appearances:
Muritala Abdul-rasheed Esq.,with him, B. S. Kpenkpen Esq.For Appellant(s)
Musa M. Imam., D. P. P. Ministry of
Justice, Jigawa State with him, Usman
Adamu, Esq., Director Legal Drafting
Ministry of Justice, Jigawa State and
Yahaya Abdullahi Esq. Chief State
Counsel Ministry of Justice, Jigawa StateFor Respondent(s)
