ABDULLAHI v. A.G. FEDERATION
(2022)LCN/15944(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Wednesday, May 04, 2022
CA/K/124/C/2018
Before Our Lordships:
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
SALISU ABDULLAHI APPELANT(S)
And
ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)
RATIO
THE OFFENCE OF PROCUREMENT UNDER SECTION 16(1) OF TRAFFICKING IN PERSONS ACT
“For a clearer understanding of the charge, it is important to define the term ‘procure’ as used in the charge.
Section 16(1) of Trafficking in Persons Act, 2015 provides-
‘Any person who procures or recruits any person under the age of 18 years to be subjected to prostitution or other forms of sexual exploitation with himself, any person or persons, either in Nigeria or anywhere else, commits an offence and it liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less that N1,000,000.00 (One Million Naira only).
“The word ‘procure’ according to the Oxford Advanced Learners Dictionary, 8th Edition, means:
‘To obtain something” and an example of the meaning of the word procure is given in the same Oxford Advanced Learner’s Dictionary, 8th Edition and I quote “He was accused of procuring underaged girls.”
“I hold that the purpose of Section 16(1) of Trafficking in Persons Act, 2015 inter-alia is to protect a female child against sexual exploitation.
“The word” either in Nigeria or anywhere else” as used in Section 16(1) of Trafficking in Persons Act, 2015 shows that the provision is not solely applicable to matters relating to traffic in person but also protection of a child under age 18.
“PW1 and Pw3 testified as to how the defendant came to buy sachet water and insisted that PW1 (Victim) brings the water to his house. It is important that the defendant did not deny this fact. I hold that the prosecution has established that the defendant procured or lured the Victim to his house and that the first ingredient of this offence is proved. PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the 14th October, 2016 judgment of the Federal High Court, Kano Division, delivered by J.K. Omotosho J. in Charge No: FHC/K/CS/173/2016 convicting appellant of procuring an eight-year-old girl for sexual exploitation, an offence punishable with imprisonment of a term of not less than seven (7) years imprisonment and fine of not less than ₦1,000,000.00 under Section 16 (1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015. The charge laid against appellant by the prosecution in that Court alleged that appellant did procure for himself the said under-aged girl of 8 years, a certain Miss H (I do not wish to disclose her full identity) of Kawu Bubugaje Kumbotso Local Government Area of Kano State and had carnal knowledge of her.
The case of the prosecution was presented by Miss H herself as the prosecution’s first witness (P.w.1) and supported by her mother as P.W.2; her brother, Ahmed Hamisu as P.W.3; the medical doctor who examined her testified as P.W.4, and finally the NAPTIP Officer that investigated the complaint, as P.W.5.
Miss H, the victim, had the following gory story to tell of her ordeal with appellant:
“I am (her name). I am 8 years old. I am in primary two, Zawariya Primary School, Kano. I know the defendant. The defendant lives near our house. He normally tells me to call him water hawker for him to buy. He at times instructs me to take the water to his house, he also sends me to buy pure water. My mother sells local perfume. Any time he sends me to take pure water to his wife, the wife was not always around. Every time I get into the house and did not meet the wife at house, the Defendant carries me and takes me into the room. In the room the Defendant would remove his trousers; he undresses me i.e. remove the entire cloth and sleep me after removing my cloth. He the Defendant would insert his penis in my virginal (sic). While he is inserting his penis in my vagina, I used to feel great pains. He did that to me and inserted his penis into my vagina eight times and my anus too. The eight incidents happened on different days. I did not tell anybody even my parents as the defendant said if tell anybody (sic: both the trial judge in his judgment and her mother said the threat was that appellant would kill her). My mother when I was urinating and my mother saw that I was urinary with pains. She asked me what was wrong and that there must be something wrong with me as she observed that I was experiencing great pains while urinating. My mother then put me in her room noticed something after checking my private part and I told her that it was Salisu (Defendant) that did it. My mother asked and I told her that Salisu did it whenever he asked me to give water to the wife and the wife was not at home then. That he used to give me sweet and chewing gum after doing it. My mother warned me not to go there again. That when my mother went out, myself and my brother were at home, the Defendant came again. I initially run for (sic) him. He bought water and when there was no change he asked me to come and collect money. I went with him. When I got to his house the wife was not at house. He forced my pant, removed and inserted his penis into my vagina. I lied (sic:) and told my brother. My brother took me to our mother.”
Under cross-examination by appellant’s counsel, she confirmed to the Court that it was appellant alone that used to send her to buy sachet (pure) water and it is he alone who used to violate her; that she was not tutored by her mother, rather, it was she who told her mother what appellant had been doing to her.
On their part, the victim’s mother (P.W.2) and elder brother (P.W.3), a 13-year-old, also confirmed what Miss H said she told them, their own observations and their responses to the complaint. Both of them also confirmed that on the final occasion, when appellant again lured Miss H into his house and had carnal knowledge of her, she came back crying. The mother added that, after they finally reported the incident to NAPTIP, relatives of appellant, including his uncle, came to them pleading on behalf of appellant.
On his part, the medical doctor, Dr. Ismaila Oricha, who examined Miss H, testified as follows:
“I remember R…. H…. (Miss H) on 27th May, 2016 was brought to me by NAPTIP officials. She was brought for a case of sexual assault which has been repeated severally over on or before the past two months. She said she cannot count the number of sexual assault. She said it was penne Oral and pen Vagina and also renal insertion. She also complained of loin pain and painful insertion which we call dysurya. I then scanned her and found that she was depressed young girl who was warm to teach with loin and supra cubic tenderness. There was brownish virginal discharge and the hymen was completely broken. I requested for ancillary laboratory investigation, vagina, urine, culture and sensitivity. The investigation revealed some pathogenic bacteria were isolated (i.e. were seen in her vagina). I prescribed some antibiotic for her. I issued a medical report. The medical paper is on medical headed paper. This is the medical report.”
The prosecution closed its case with the testimony of the officer of NAPTIP that investigated the case.
Appellant testified in his defence and therein denied the charge. He also denied volunteering any statement to the NAPTIP officials upon his arrest. He said he told the NAPTIP officials that he did not commit the offence, but they forced him to thumb impress an already written statement after getting his details from him. Appellant, thereafter, called three character witnesses to testify to his good character and closed his defence.
In his final judgment of 14/12/2016, after taking final addresses from counsel to parties, the trial judge rejected appellant’s denials, held the prosecution to have proved its case against him beyond reasonable doubt, convicted him as charged and sentenced him to 14 years imprisonment and a fine of two million Naira.
Dissatisfied, appellant has lodged in this Court the instant four-ground appeal against that judgment and framed the following four issues from his grounds of appeal for determination:
1. Whether from the facts and evidence of the case, it could be said that the Federal High Court was clothed with jurisdiction to try him under the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015 instead of an offence under the Penal Code Law. (Culled from grounds 1 and 2 of the amended notice of appeal).
2. Assuming but without conceding that he was properly charged and tried under the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015, whether it can be rightly said that respondent discharged the evidential burden of proof on it to warrant his conviction by the trial Court. (Culled from ground 3 of the amended notice of appeal).
3. Whether the sentence of 14-years imprisonment and fine of ₦2,000,000.00 (Two Million Naira) imposed on him by the trial Court was justified in law (culled from ground 4 of the amended notice of appeal.)
4. Whether from the facts of this case and the evidence led at the trial, the appellant was supposed to have been charged and tried under NAPTIP Act as against the Penal Code Law of Kano State High Court. (No indication as to the ground to which it is tied).
The last issue which is was not tied to any ground, and could not have been tied to any ground given that his four grounds had already been tied by him to issues one to three, must be and is hereby struck out, thus leaving him with his issues 1-3. Incidentally, he also only argued issues one to three in his brief of argument.
His argument on issue 1 is that the evidence led by the prosecution at the trial Court disclosed the offence of rape, an offence which he said has been sufficiently taken care of in Sections 275 and 283 of the Kano State Penal Code and confers jurisdiction only on the Kano State High Court and so not capable of being tried under a federal legislation by the Federal High Court.
The very crisp response of the Respondent is that the facts laid before the Court by it also constitute an offence under Section 16 of the Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015, that where a set of facts shown constitutes an offence under two subsisting legislations as in this case, the suspect does not have the discretion to choose which of them he should be tried on. It cited this Court’s decision of Mohammed Adeyemi Oke v. Federal Republic of Nigeria (2016) LPELR-41362 (CA) in support of that argument.
Resolution of issue
I agree with the Respondent. The fact that the same facts adduced by the prosecution in support of its charge would also support a charge for rape, which is a State offence, is not by any means good or sufficient reason for the Federal High Court to divest itself of the undoubted jurisdiction vested on it by Section 16(1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015 creating the offence of procurement or recruitment of persons under 18 years for prostitution or other forms of sexual exploitation. See Mohammed Adeyemi Oke v. Federal Republic of Nigeria (2016) LPELR-41362 (CA). This issue is accordingly resolved against appellant.
Issue 2: On issue 2, appellant first submitted that the ingredients of the offence of sexual exploitation under Section 16(1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015 are namely (a) recruitment/traffic of the victim outside Nigeria or to any part of Nigeria, (b) use of threat, (c) to exploit, and (d) that the victim is under 18 years. He said these ingredients must be proved conjunctively. He submitted that if the prosecution proved that he only defiled Miss H, his neighbour’s daughter living in the same neighborhood and so did not transport her, the requisite standard of proof to secure conviction was not attained so he ought not to have been convicted. He also faulted the trial judge’s resort to the Oxford Advanced Learners’ Dictionary meaning of the word ‘procure’ in Section 16(1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015.
He said the Court ought to have adopted the meaning of the same word as used by Fatayi Williams, CJN, in State v. Mukoro Mowoe (1973) 8 NSCC 171 @ 182 where his Lordship said “The word ‘procure’ should be given its ordinary meaning, which import effort, care, management or contrivance towards the obtaining of a desired end.” Appellant concluded by submitting that all the ingredients of the offence under Section 16(1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015 were not proved conjunctively let alone beyond reasonable doubt by Respondent so his conviction was wrongful.
Respondent supported the trial judge’s resort to the dictionary definition of ‘procure’ and submitted that given the ‘unshaken’ evidence of the prosecution witnesses that appellant used to come to P.W.1’s house to deceive her in the name of buying sachet water and repeatedly abused her sexually, the facts of her procurement by appellant for sexual exploitation was proved along with every other element of the offence created by section of Section 16(1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015 so his conviction was in order.
Resolution of issue
Now, Section 16(1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015 reads thus:
16(1) Any person who procures or recruits any person under the age of 18 years to be subjected to prostitution or other forms of sexual exploitation with himself, any person or persons, either in Nigeria or anywhere else, commits an offence and is liable on conviction to imprisonment for a term of not less than 7years and a fine of not less than ₦1,000,000.00.
Whereas the word ‘procure’ is not defined by the statute, the phrase ‘Sexual exploitation’ is defined in Section 82 of the same statute thus:
“Sexual exploitation” means the participation by a person in prostitution, sexual servitude, or the production of pornographic materials as a result of being subjected to a threat, coercion, abduction, force, abuse of authority, debt bondage or fraud.”
This is the way the learned trial judge treated the issue in his judgment:
“From the provision of Section 16(1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015, the ingredients of the offence created under the section are:
“1. The defendant must have procured the victim.
2. The victim must have be less than 18years Old
3. That the victim is procured for sexual exploitation in Nigeria or anywhere else.
“For a clearer understanding of the charge, it is important to define the term ‘procure’ as used in the charge.
Section 16(1) of Trafficking in Persons Act, 2015 provides-
‘Any person who procures or recruits any person under the age of 18 years to be subjected to prostitution or other forms of sexual exploitation with himself, any person or persons, either in Nigeria or anywhere else, commits an offence and it liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less that N1,000,000.00 (One Million Naira only).
“The word ‘procure’ according to the Oxford Advanced Learners Dictionary, 8th Edition, means:
‘To obtain something” and an example of the meaning of the word procure is given in the same Oxford Advanced Learner’s Dictionary, 8th Edition and I quote “He was accused of procuring underaged girls.”
“I hold that the purpose of Section 16(1) of Trafficking in Persons Act, 2015 inter-alia is to protect a female child against sexual exploitation.
“The word” either in Nigeria or anywhere else” as used in Section 16(1) of Trafficking in Persons Act, 2015 shows that the provision is not solely applicable to matters relating to traffic in person but also protection of a child under age 18.
“PW1 and Pw3 testified as to how the defendant came to buy sachet water and insisted that PW1 (Victim) brings the water to his house. It is important that the defendant did not deny this fact. I hold that the prosecution has established that the defendant procured or lured the Victim to his house and that the first ingredient of this offence is proved.
“The victim, PW1, testified as to how old she is. She is eight years old which is obvious from her physique and speech. PW3 is her elder brother who is thirteen years old. The Court would be safe to conclude that the victim is Eight years old. I therefore hold further that it has been proved that the The victim is eight years old and less than eighteen years, with this the second ingredient is proved beyond reasonable doubt on the last ingredient that the victim was procured for sexual exploitation, it is necessary to consider the act of the defendant after procuring or luring the victim into his house. The victim herself told this Court how the Defendant had carnal knowledge of her by removing her clothes and penetrating her with his penis. The testimony of PW1 is quite detailed and touching on how she was defiled and sexually exploited by the Defendant.
“Furthermore, the victim’s mother, PW2 testified of how she found out that her daughter has been penetrated when she, the victim complained to her of feeling pains in her private parts. She discovered that the hymen was broken which prompted her to take the victim for medical examination. Prior to taking the victim for medical examination, she made some investigations to confirm what the victim told her about the Defendant.
“PW1 in her testimony in chief stated that the Defendant threatened to slaughter her if she ever told anybody about the defilement and exploitation. “PW1 testified that the act happened 8 consecutive times. It was revealed that it took a while for the act to be discovered by her mother because she was frightened and was of the belief that the Defendant would carry out his threat of slaughtering her if she told anybody about it. In my mind, I have no doubt that PW1 was afraid of the threat of the Defendant. A girl of eight years would no doubt be terrified of the threat posed by a man of 31 years who is not her father. PW1 was forced to tell her mother when the pain became unbearable for her. The medical report Exhibit A corroborates the fact that the victim was sexually exploited. I must say that the prosecution has established not only the third ingredient that the purpose of procuring or luring the victim was sexual exploitation but has gone further to prove that the victim was sexually abused, defiled and exploited. I observed witnesses and I do not have doubt in respect of the evidence to this effect.”
I am unable to fault this judgment, for whether we go by the Advanced Learner’s Dictionary definition of the word ‘procure’ where it is defined as ‘to obtain something” with it’s the uncanny example of “He was accused of procuring under aged girls,” or we adopt the definition in State v. Mukoro Mowoe (1973) 8 NSCC 171 @ 182 where it was said “The word ‘procure’ should be given its ordinary meaning, which import ‘effort, care, management or contrivance towards the obtaining of a desired end,” the fact is that the evidence of the prosecution, especially from the 8-year-old victim herself, showed beyond reasonable doubt that appellant carefully and with effort managed (I may use the words of Fatayi Williams, CJN, preferred by appellant) his 8-year-old victim towards his desired end of sexually exploiting her and did actually exploit her sexually.
What I will add to that is that, to secure a conviction under Section 16(1) of Trafficking in Persons Act 2015 for procuring a girl below 18 years for sexual exploitation, the prosecution need not even prove that the victim was moved from her place of residence to another. No. That is not in the wording of Section 16(1) as regards procurement of a minor for sexual exploitation. In fact, by the wordings of that section, the procurement and exploitation could well take place under the very roof of the house the less than 18-year-old girl lives, just as the person sexually exploiting her could also be a co-resident of that same house. The procurer/exploiter could also well be her own father, step-father or any other person involved in procuring her for sexual exploitation as defined by Section 82 of the Act earlier reproduced.
In this case, it was not in issue and appellant did not suggest to the contrary at any point, that the victim, little Miss H, was anything but an eight-year-old girl in Primary 2. Even her elder brother, P.W.3, by his unchallenged evidence, is just a 13-year-old hence both he and his sister the victim were subjected to the test of understanding the effect of taking oath and affirmation before they were allowed to testify by affirmation.
There was also ample evidence on record of the procurement and sexual exploitation of Miss H by appellant which the trial who saw and heard witnesses believed.
In the circumstance, I fail to see anything untoward in the verdict of the lower Court convicting appellant. In the event, I hereby also resolve issue 2 against appellant. Issue 3: Appellant’s argument in his issue 3 was against the sentence of 14 years imprisonment and fine of ₦2,000,000.00 imposed on him by the lower Court upon his conviction. He submitted that the 14 years sentence imposed on him by the Court was excessive and is in fact a multiplication of the minimum 7 years, the Parliament scaled down from the 10 years punishment in the repealed version of the same statute. He however acknowledged that the sentence imposed for an offence must reflect its gravity even as he also argued that he was a first offender so that should have been taken into account by the trial Court in sentencing him.
Respondent in reply submitted that the sentence passed on appellant was in order in the circumstances of the case and the prevalence of such offences in the jurisdiction of the lower Court. It also argued that the sentence to be imposed by a Court on a convict is a matter within the discretion of that Court, which it is not even bound to give reasons for exercising one way or the other – for which it referred us to the decision of this Court in the case of Arabi v. State (2001) 5 NWLR (PT 706) 256 @ 277.
Resolution of issue
In sentencing appellant to 14 years imprisonment and ₦2,000,000.00 fine upon his conviction, the learned trial judge had this say:
“I have listened to the allocutus on the part of the counsel to the defendant. I have taken judicial notice of the offence of having sexual intercourse with a child in this jurisdiction. It is prevalent and highly on increase. Instances of having intercourse even with a child of 3 years, 4 years up to 10 years is increasing on daily basis. Because of the prevalent (sic) of the nature of offence, the defendant is sentenced to both 14 years imprisonment and ₦2m as fine.”
Having regard to the evidence adduced in this case by the victim herself, her mother, brother and the medical doctor who examined her as earlier reproduced in this judgment, I do not see how it can be seriously said that appellant deserved anything less than the sentence the trial judge imposed on him. And coming to his Lordship’s observation of the prevalence in this jurisdiction of the offence of adults sexually assaulting minors for which stiff punishment ought to be imposed as a deterrent, confirmation can be found even in this Court’s judgment of just days ago on 26/4/2020 in CA/K/343/2016: Hassan Ahmed v. Kano State. That case was rape of a 10-year-old girl by her married 40-year old uncle on similar pretexts. At any rate, as appellant also correctly pointed out in his brief of argument, the punishment imposed by a Court upon conviction of a suspect must reflect the gravity of his offence. In the event, this issue is also resolved against appellant.
In conclusion, this appeal lacks merit and is hereby dismissed.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree
ABUBAKAR MU’AZU LAMIDO, J.C.A.: My learned brother, BOLOUKUROMO MOSES UGO, JCA obliged me a copy of his judgment. I have gone through same and agree with the reasoning and conclusion that there is no merit in the appeal. I adopt same as mine and have nothing more to add. For the same reasons, I also dismiss the appeal and abide by the order as to cost.
Appearances:
Mrs. Fausat Omowunmi Abdulsalam For Appellant(s)
Abdullahi Babale Shuaibu, Esq., Chief Legal Officer, NAPTIP For Respondent(s)