ALI v. STATE
(2022)LCN/16187(CA)
In the Court of Appeal
(GOMBE JUDICIAL DIVISION)
On Friday, April 01, 2022
CA/G/15C/2021
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
IDRISA AL IAPPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE DUTY OF THE COURT IS TO DO JUSTICE AND NOT BE INFLUENCED BY SENTIMENT
The Appellant was charged, convicted and sentenced over two very serious offences which are not only illegal and unlawful but also immoral. The offences are terrible offences and even detested by any normal and reasonable human being even if it is a movie scene. It is a taboo in all religions and indeed cultures in the world for a man to have sexual intercourse with his own children. I cannot think of any religion or culture that allows such an act. It is a NO, NO and not acceptable. This is not only illegal, immoral but also demonic. No right meaning person should be allowed to exist in a decent society with such animalistic and demonic behavior. Rape itself is bad enough but to go further to rape one’s own child is terrible. I lack any English word to describe how distasteful such a conduct could be. Let me quickly enter a caveat, the above are general comment to show how distasteful such an action is. This is not to be seen as if the appeal is determined already. Far from it as I will have to look at the judgment of the Lower Court to determine whether the judgment corresponds with the evidence before it and the law. The point I am trying to make is that in view of the serious nature of the offence and stigma that goes with a conviction for such offence, no Court should allow sentiment to take a better part of it in coming to a decision. The duty of the Court is to do justice according to law and not influenced by sentiment. See State vs John (2013) LPELR-20590 (SC); PML (Nig) Ltd vs FRN (2018) 7 NWLR (pt 1619) 448. PER TOBI, J.C.A.
WHETHER OR NOT SUSPICION CAN TAKE THE PLACE OF EVIDENCE TO BE THE BASIS FOR THE CONVICTION OF AN ACCUSED PERSON
Another legal principle that a Court must hold dearly in deciding criminal matters is that suspicion no matter how grave cannot take the place of evidence to be the bases for the conviction of an accused person. The decision of Court is based on hard evidence and not suppose to reflect public opinion. See Alhaji Atiku Abubakar GCON & Ors vs Alhaji Umar Musa Yar’Dua & Ors ( 2008) 12 SC (pt ii) 1; Udor vs State (2014) 5-6 SC (pt II) 177.
The required standard of prove for the Appellant to be convicted is beyond reasonable doubt and not on grave and serious suspicion. See Michael Alor vs The State (1997) 4 NWLR (pt 501) 511. In Ahmed vs. State (2001) LPELR-262 (SC), the Apex Court put it succinctly thus:
“It is now trite that suspicion, however strong, will not amount to proof. In Onyenankeya v. The State (1964) 1NMLR 34, this Court cited with approval the case of R. v. Oledinma 6 WACA 202 where it was held that: “… to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did” and went further to add: “The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution.” The principle of these two cases applies to the present case. Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.” PER TOBI, J.C.A.
THE STANDARD OF PROOF REQUIRED TO CONVICT AN ACCUSED PERSON FOR ANY CRIMINAL OFFENCE
Before I look at the evidence before the lower Court that informed the decision it will not be out of place to state that the law is trite and settled that for an accused person to be convicted for any criminal offence, the required prove is beyond reasonable and not necessarily beyond all shadow of doubt. As to what will amount to beyond reasonable doubt, the apex Court has in a cloud of cases stated the position of the law. I will mention just one or two of such cases. In Maba vs The State (2020) LPELR-52017 (SC), the Apex Court held in this wise:
“The burden placed on the prosecution in a criminal charge is a heavy one. It must establish the guilt of the accused beyond reasonable doubt. See
Section 135 of the Evidence Act, 2011. It was held in Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170 at 193 D-E, (2011) LPELR-SC 197/2010 that:
Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability.
At 186 E-G (supra):
It is not proof beyond all iota of doubt. One thing is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution…the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.
In Afolalu v. State (2010) All FWLR (Pt. 538) 812, (2010) 16 NWLR (Pt. 1220) 584, (2010) 5 – 7 SC (Pt. II) 93, (2010) 6- 7 MJSC 187, it was held that:
Prove beyond reasonable doubt means prove to moral certainty, such prove as satisfies the judgment and conscience of a judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible.
See also Dairo v. The State (2017) 9-12 SC 119; Ikpo v. State (2016) All FWLR (Pt. 837) 619, (2016) 10 NWLR (Pt.1521) 50, (2016) 2-3 SC (Pt. III) 88; Bakare v. State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, (1987) 3 SCNJ 1.” PER TOBI, J.C.A.
THE DUTY OF THE LEGAL COUNSEL AS A MINISTER IN THE TEMPLE OF JUSTICE
Before I however do so, there is a housekeeping matter I feel very seriously about. This has to do with the duty of Counsel as a minister in the temple of justice. All lawyers who appear in Court must know that they as ministers in the temple of justice they are to assist the Court to ensure justice is done even if it is at the expense of their client’s case. This Court in Agbo & Anor vs Ugwuja & Ors (2021) LPELR – 54618(CA) had this to say when it held thus:
“What is more, a counsel must always remember that as a minister in the temple of justice, he owes a duty not only to his client, but he owes a duty to the Court, the legal profession and most importantly a duty to the greater cause of justice. The first responsibility is to the legal profession, the Court before his client in that order.”
The Apex Court had earlier in Umar vs FRN (2020) LPELR-52449 (SC) had decided on a similar issue in these words:
“The duty, at all times, of every counsel appearing in this Court, as a minister in the temple of justice, to honestly disclose all facts, favourable or unfavourable, as doing so immensely assists and/or guides the Court in the judicious discharge of its judicial functions. The point cannot be over-emphasized. As much as the judex cannot speculate; so also must the Bar not put the Bench in a state of factual uncertainties of material facts.” PER TOBI, J.C.A.
WHETHER OR NOT DENIAL OF FAIR HEARING CAN NULLIFY THE WHOLE COURT PROCEEDING
As if that is not enough, Counsel to the Appellant also submitted that trial within a trial was not conducted and therefore his client was denied fair hearing. If this is the case, it is serious because the denial of fair hearing is fundamental and can nullify the whole proceeding. The proceeding and judgment will be a nullity. See Maduri v. Hon. Commissioner for Land and Survey, Yobe State & Anor (2021) LPELR-55424 (CA); Ovunwo & Anor vs Woko & Ors (2011) LPELR-2841 (SC). This may just be the time to address the 2nd issue formulated for determination by the Appellant’s Counsel which was adopted by the Respondent’s Counsel. I will reproduce same here for ease of reference:
“Whether the failure to conduct trial within trial in the circumstance of this case does not violate the right to fair hearing of the Appellant thereby liable to render the decision a nullity? (Distilled from Ground three).” PER TOBI, J.C.A.
WHETHER OR NOT A CONFESSIONAL STATEMENT IS THE BEST EVIDENCE OF THE COMMISSION OF A CRIME
The law is also settled that a confessional statement is often the best evidence of the commission of a crime for it states, in the accused person’s own words, the role he played and constitutes an acknowledgement of guilt. In the instant case, the Appellant made the confessional statement, Exhibit A& A1, narrating how he committed the offence – Yahaya V State (2018) 16 NWLR (Pt. 1644) 96, 110 (SC), Afolabi V State (2016) 11 NWLR (Pt. 1524) 497, Asimi V State (2016) 12 NWLR (Pt. 1527) 414, Fabiyi V State (2015) 18 NWLR (Pt. 1490) 80, Musa V State (2013) 9 NWLR (Pt. 1359) 214.
Furthermore, it is also the law that the confessional statement of an accused person alone is sufficient to ground a conviction. A confession alone, properly proved, is enough to ground a conviction, even without corroboration. Thus, an uncorroborated confessional statement of an accused person can be acted upon, without more. PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was the accused person in the lower Court. He was charged on a two count charge for the offences of incest and rape of his two daughters Zainab and Zara who are both 12 years old pursuant to Sections 390 and 283 of the Penal Code Law, Cap 102, Laws of Borno State of Nigeria, 1994. This act was done on 8/7/19 at 1500 hours as shown in the charge found at page 3 of the record. The Respondent as Prosecution in the lower Court called 5 witnesses and tendered 8 Exhibits. The lower Court in its judgment at pages 25-37 of the record found the Appellant guilty on both counts and sentenced him to 7 years for count 1 for incest punishable under Section 390 of the Penal Code and 10 years for count 2 for rape punishable under Section 283 of the Penal Code. Both terms are to run consecutively. This means he is to serve a total of 17 years in prison. The decision of the lower Court is based on the evidence of PW1-PW3, the confessional statement of the Appellant, which is Exhibit ST2, ST3, ST4, ST5, MR1 and MR2 which were all exhibits tendered by the Respondent either from the Bar or through witnesses. The lower Court at page 36-37 of the record held as follows:
“I convict the accused person as charged for the offence (sic) incest punishable under Section 390 of the Penal Code Law and of raping 12 years old Zara Adamu and 12 years old Zainab Idrisa an offence punishable under Section 283 of the Penal Code Law… It is very unfortunate in this case that the father who is the very person who is entrusted with duty to protect his children is the very person molesting them. On the 1st count charge of incest punishable under Section 390 of the Penal Code Law, I sentence the convict to 7 years imprisonment.
On the 2nd count of rape punishable under Section 283 of the Penal Code Law, I sentence the convict to 10 years imprisonment. The two terms are to run consecutively.”
The Appellant vexed by this judgment delivered on 12/11/19 by His Lordship A. M. Ali filed an appeal challenging the judgment. The Notice of Appeal filed on 9/7/21 has 3 grounds. The grounds of appeal without the particulars are as follows:
Ground 1
The learned trial Judge erred in law by disregarding the evidence on oath of the two purported victims of the offence charged i.e. PW4 and PW5 which evidence exonerated the Appellant of the offences charged.
Ground 2
The learned trial Judge erred in law by convicting the Appellant of the offences charged when there were two opposing and conflicting sets of evidence on the essential and material aspect of the Prosecutor’s case.
Ground 3
The learned trial Judge erred in law by admitting the purported statement of the Appellant at Biu Police Station Exhibit ST2 to convict the Appellant when same was obtained under duress.
The Appellant is represented in this appeal by A.B. Usman Esq., who settled the Appellant’s brief filed on 25/1/22 and deemed properly filed on 27/1/22, while the Respondent was represented by K. S. Lawan Esq., the Honourable Attorney General of Borno State. The main thrust of the grounds of appeal is that the lower Court should not have ignored the evidence of PW4 and PW5 who were the victims of the offences who in their evidence in Court testified to the effect that the Appellant did not have sexual intercourse with them. This evidence been at variance with Exhibits ST4 and ST5 their extended judicial statement should have made the Court not to convict the Appellant. What this appeal is about is therefore, to determine whether the Lower Court was right in convicting the Appellant despite the evidence of PW4 and PW5 who are the victims of the offences.
In my opinion, the decision of the Lower Court is based much more on the Confessional Statement of the Appellant which was admitted and marked Exhibit ST2 and the circumstantial evidence of PW3 whose statement is Exhibits ST3 before the lower Court. MR1 and MR2 also play a relevant part in the judgment of the Court. I do not think that the Judgment of the Lower Court was based solely on the evidence of PW4 and PW5. I will have course to look at that in greater details later in this judgment.
I will at this point look at the submission of counsel involved in this appeal. A. B. Usman Esq., Appellant’s Counsel on 3/3/2022 adopted the Appellant’s brief filed on 26/8/21 in urging Court to allow the appeal and set aside the judgment of the lower Court. Learned Counsel formulated two issues for determination viz:
1. Whether the trial High Court was not in grave fundamental error when in its judgment it convicted the Appellant on the discredited and unreliable evidence presented by the Prosecution? (distilled from Grounds one and two).
2. Whether the failure to conduct trial within trial in the circumstance of this case does not violate the right to fair hearing of the Appellant thereby liable to render the decision a nullity? (distilled from Ground three).
In addressing issue 1, counsel submitted that the lower Court was wrong in rejecting the testimonies of PW4 and PW5 who as prosecution witnesses in Court testified that the Appellant did not have sexual intercourse with them. The failure of the Prosecution to declare them hostile witness is fatal to the case of the Respondent, counsel submitted relying on a few cases including Onubogu & Anor vs The State (1974) LPLER-SC 180/1974 (This citation is wrong);Amaechi vs State (2016) LPELR-40977 (CA). The contradiction of their oral evidence with those of the other witnesses should create doubt in the mind of the Court which it should have resolved in favour of the Appellant, Counsel submitted relying on Al- Mustapha vs The State (2013) 17 NWLR (pt 1383) 35; Orisan vs People of Lagos State (2019) LPELR-CA/L/457CA/2016 (yet another case wrongly cited). Relying further on Al-Mustapha vs The State (supra) and Ikomi vs State (1986) LPELR-1482 (SC), it is the submission of Counsel that suspicion cannot be the bases for conviction, this is more so that the evidence of PW1-PW3 are not direct eye witness account of the incident culminated into the offences the Appellant was charged with, convicted for and sentenced by the lower Court. Learned Counsel urged this Court to resolve this issue in favour of the Appellant.
On issue 2, learned Counsel submitted that the lower Court was wrong in admitting Exhibit ST2 without conducting a trial within a trial when its admissibility was challenged on grounds of voluntariness. This amounts to denying the Appellant fair hearing. Counsel submitting relying on Obidiozo vs State (1987) 4 NWLR (pt 67) 48; Emeka vs The State (2001) 6 SCNJ 267. This issue is to be resolved in favour of the Appellant. On the whole, learned Counsel submitted that this appeal should be allowed and the judgment of the Lower Court set aside.
K. S. Lawan Esq., Counsel for the Respondent, the learned HAG of Borno State adopted the two issues formulated by the Appellant in opposing this appeal. On issue 1 relying on Arehia vs State (1982) LPELR- 543 (SC) and Mohammed vs State (1991) LPELR-1901 (SC), it is the submission of counsel that the duty of Prosecution to declare a witness a hostile witness is discretionary and further that the non-declaration of PW4 and PW5 as such does not affect the credibility of the Respondent’s case. It is the further submission of the learned HAG that their evidence having been corroborated by the evidence of others witnesses and exhibits tendered before the Court, the Court was right in convicting and sentencing the Appellant. He cited Olanipekun vs State (2016) LPELR-40440 (SC); Adesina vs The State – LPELR-SC 304/2010. Learned HAG specifically referred to the confessional statement of the Appellant which was admitted after the lower Court conducted a trial within a trial. This confession is strong evidence against the Appellant upon which the conviction of the Appellant was properly based. Counsel referred to Danjuma vs State (2019) LPELR-47037(SC); Asuquo vs State (2017) EJSC Vol. 53, 126; Yusuf & Anor vs State (2019) LPELR-46945 (SC). This issue learned Counsel submitted should be resolved in favour of the Respondent.
On issue 2, K. S. Lawan Esq., submitted that contrary to the position advanced by the Appellant’s Counsel, trial within a trial was conducted where the Appellant testified as DW1TWT. It is the firm submission of Counsel that the Respondent had proved its case beyond reasonable doubt and therefore the lower Court was right in convicting the Appellant even on his retracted confessional statement. Learned Counsel cited Idris vs State (2021) LPELR-54581 (CA), Lawali vs State (2021) LPELR-56431(CA), Lawal vs State (2016) 35 WRN 35 and Gwangwan vs State (2016) 1 WRN 88. It is the final submission of Counsel that the appeal be dismissed and the judgment of the lower Court be affirmed in all respect.
The Appellant was charged, convicted and sentenced over two very serious offences which are not only illegal and unlawful but also immoral. The offences are terrible offences and even detested by any normal and reasonable human being even if it is a movie scene. It is a taboo in all religions and indeed cultures in the world for a man to have sexual intercourse with his own children. I cannot think of any religion or culture that allows such an act. It is a NO, NO and not acceptable. This is not only illegal, immoral but also demonic. No right meaning person should be allowed to exist in a decent society with such animalistic and demonic behavior. Rape itself is bad enough but to go further to rape one’s own child is terrible. I lack any English word to describe how distasteful such a conduct could be. Let me quickly enter a caveat, the above are general comment to show how distasteful such an action is. This is not to be seen as if the appeal is determined already. Far from it as I will have to look at the judgment of the Lower Court to determine whether the judgment corresponds with the evidence before it and the law. The point I am trying to make is that in view of the serious nature of the offence and stigma that goes with a conviction for such offence, no Court should allow sentiment to take a better part of it in coming to a decision. The duty of the Court is to do justice according to law and not influenced by sentiment. See State vs John (2013) LPELR-20590 (SC); PML (Nig) Ltd vs FRN (2018) 7 NWLR (pt 1619) 448.
Another legal principle that a Court must hold dearly in deciding criminal matters is that suspicion no matter how grave cannot take the place of evidence to be the bases for the conviction of an accused person. The decision of Court is based on hard evidence and not suppose to reflect public opinion. See Alhaji Atiku Abubakar GCON & Ors vs Alhaji Umar Musa Yar’Dua & Ors ( 2008) 12 SC (pt ii) 1; Udor vs State (2014) 5-6 SC (pt II) 177.
The required standard of prove for the Appellant to be convicted is beyond reasonable doubt and not on grave and serious suspicion. See Michael Alor vs The State (1997) 4 NWLR (pt 501) 511. In Ahmed vs. State (2001) LPELR-262 (SC), the Apex Court put it succinctly thus:
“It is now trite that suspicion, however strong, will not amount to proof. In Onyenankeya v. The State (1964) 1NMLR 34, this Court cited with approval the case of R. v. Oledinma 6 WACA 202 where it was held that: “… to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did” and went further to add: “The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution.” The principle of these two cases applies to the present case. Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.”
Before I look at the evidence before the lower Court that informed the decision it will not be out of place to state that the law is trite and settled that for an accused person to be convicted for any criminal offence, the required prove is beyond reasonable and not necessarily beyond all shadow of doubt. As to what will amount to beyond reasonable doubt, the apex Court has in a cloud of cases stated the position of the law. I will mention just one or two of such cases. In Maba vs The State (2020) LPELR-52017 (SC), the Apex Court held in this wise:
“The burden placed on the prosecution in a criminal charge is a heavy one. It must establish the guilt of the accused beyond reasonable doubt. See
Section 135 of the Evidence Act, 2011. It was held in Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170 at 193 D-E, (2011) LPELR-SC 197/2010 that:
Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability.
At 186 E-G (supra):
It is not proof beyond all iota of doubt. One thing is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution…the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.
In Afolalu v. State (2010) All FWLR (Pt. 538) 812, (2010) 16 NWLR (Pt. 1220) 584, (2010) 5 – 7 SC (Pt. II) 93, (2010) 6- 7 MJSC 187, it was held that:
Prove beyond reasonable doubt means prove to moral certainty, such prove as satisfies the judgment and conscience of a judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible.
See also Dairo v. The State (2017) 9-12 SC 119; Ikpo v. State (2016) All FWLR (Pt. 837) 619, (2016) 10 NWLR (Pt.1521) 50, (2016) 2-3 SC (Pt. III) 88; Bakare v. State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, (1987) 3 SCNJ 1.”
One more case in this regard will not harm anyone but for completeness I will mention the case Afuape vs State (2020) 17 NWLR (pt. 1754) 381 where the Supreme Court held thus with regard to proof beyond reasonable doubt in these words:
“Proof beyond reasonable doubt” means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond the shadow of a doubt. …To prove a case beyond reasonable doubt, there must be a degree of compulsion that is consistent with a high degree of probability. In other words, if the evidence against the accused is so strong as to leave only a 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 would have been proved beyond reasonable doubt. [Bakare v. State (1987) 1 NWLR (Pt. 52) 579; Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501 referred to].”
The requirement to prove the case beyond reasonable doubt does not extend to proof beyond all reasonable doubt as no matter how water tight the case of the prosecution could be, the evidence may not be consistent all the way in all aspect. Indeed, getting perfection in human endeavors is almost an impossibility. This is why the law does not require proof beyond all reasonable doubt. All the law requires is that, should the evidence establish all the ingredients of the offence against the accused with very high probability in such a way that a reasonable man will draw the conclusion that the case against the accused is proved, then it would be enough as the case has been proved beyond reasonable doubt. The evidence before the Court which could be by oral or documentary evidence must establish all the ingredients of the offence the accused is charged with in such a way that leaves a reasonable man in no doubt that the accused committed the offence. If there is any doubt, such doubt must relate to the ingredient of the offence otherwise such doubt will be termed fanciful doubt which will not affect the case of the prosecution and possible conviction of the accused. This much the Supreme Court brought out in Jiya vs State (2020) 13 NWLR (pt 1740) 159 when the Court held:
“Proof beyond reasonable doubt” is not prove beyond a shadow of doubt or prove to a mathematical certainty. A reasonable doubt does not mean some light, airy, insubstantial doubt that may flit through the minds about almost anything at sometime or other; it does not mean a doubt begotten by sympathy out of reluctance to convict, it means a real doubt, a doubt founded upon reasons. Thus, to require proof beyond every shadow of doubt would mean that no criminal defendant will ever be convicted, for proof to a scientific certainty cannot be attained in human affairs with many variables at play.”
The above are some of the basic general principles of law that will assist me in determining whether the lower Court was right in convicting and sentencing the Appellant. In coming to that conclusion one way or the other, I must warn myself that I am not to interfere with the finding of the facts of the Lower Court except if such finding does not correspond with the evidence that was presented before the Court, which in legal parlance is said to be perverse. See CPC vs INEC & Ors (2011) 18 NWLR (pt 1279) 493; Idam vs FRN (2020) LPELR-49564 (SC); EFCC vs Reinl (2020) LPELR-49387 ( SC).
Having stated the above legal position, we will now relate the facts to the law in either allowing the appeal and make the consequential order of setting aside the conviction and the sentence of the Appellant or to dismiss the appeal with the attendant consequential order of affirming the judgment.
Before I however do so, there is a housekeeping matter I feel very seriously about. This has to do with the duty of Counsel as a minister in the temple of justice. All lawyers who appear in Court must know that they as ministers in the temple of justice they are to assist the Court to ensure justice is done even if it is at the expense of their client’s case. This Court in Agbo & Anor vs Ugwuja & Ors (2021) LPELR – 54618(CA) had this to say when it held thus:
“What is more, a counsel must always remember that as a minister in the temple of justice, he owes a duty not only to his client, but he owes a duty to the Court, the legal profession and most importantly a duty to the greater cause of justice. The first responsibility is to the legal profession, the Court before his client in that order.”
The Apex Court had earlier in Umar vs FRN (2020) LPELR-52449 (SC) had decided on a similar issue in these words:
“The duty, at all times, of every counsel appearing in this Court, as a minister in the temple of justice, to honestly disclose all facts, favourable or unfavourable, as doing so immensely assists and/or guides the Court in the judicious discharge of its judicial functions. The point cannot be over-emphasised. As much as the judex cannot speculate; so also must the Bar not put the Bench in a state of factual uncertainties of material facts.” When this order is reversed, it is a big misplacement of priority by Counsel and no Court will appreciate such an attitude from any Counsel no matter how highly placed. A Counsel appearing before a Court must be conscious of this duty so that he does not mislead the Court in any way whatsoever. This also includes showing diligence in conducting his case, show respect to a Court and assist the Court. In this respect, Counsel should earn his fees in ensuring that the correct cases are cited for principles and in citing the case, the proper citations should be given. When Counsel does not state proper principles in support of his case or cite wrong cases or expect the Court to cite cases to assist or indeed give wrong citation for cases, it is a mark of laziness which no Court should condone. The Supreme Court made this point in African Reinsurance Corporation vs JDP Construction (Nig) Ltd (2003) LPELR- 215(SC) when the apex Court held as follows:
“Counsel is obliged to argue his client’s case convincingly and assist the Court with authorities so that it may arrive at the right decision. Furthermore, Counsel should not surprise his opponent by not citing authorities in support of his case but relying on the Court to do his duty of researching for authorities in support of his client’s case. This is never done and should not be encouraged. It shows laziness and arrogance on the part of Counsel …The provisions show that a Counsel, who intends to cite case etc. should mention the law reports, the textbooks and other authorities he would like to rely upon. He cannot, therefore, adopt the attitude that the case he would cite is generally known. This is against the requirement and spirit of the rules of practice in this Court, and I repeat, is not helpful to the Court.”
I am inclined to go this way because of the observation I am going to make on the brief of the Appellant. As a human being, sometimes, mistakes are inevitable but it is no longer a mistake when the same thing is done over and over again. The Appellant counsel in a 17 pages brief of Appellant wherein 10 cases were cited, out of which 4 were wrongly cited. 2 of the cases were not in the list of authorities and 5 cases in the list of authorities were not referred to in the arguments in the brief. This is not good enough. The citations to a case are there not for fun but are to assist the Court to go to the law report either electronically or the hard copy to read same to assist in arriving at a just decision. This makes it absolutely important that the correct citations are giving for cases cited. The danger of wrong citation of cases relied upon by Counsel was brought out by this Court in Haruna vs Kano State (2020) LPELR- 50869 (CA), This Court held thus:
“…Counsel also referred to the case of Okwuagbala Vs Ikwueme, but he only referred to the year it was reported without the other citations. The position of the Courts is that where a Counsel fails to supply the full or correct citation of a case law authority he relies on, it will be assumed that the case does not exist. The Supreme Court, per Muntaka-Coomassie, JSC, made the point in Ogudo Vs The State (2011) LPELR 860(SC) thus:
Counsel has a duty to properly cite the cases they seek to rely on in their briefs of arguments in order to assist the Court. A situation where a Counsel cites a case and put a wrong citation, the assumption is simple, the case does not exist, and such an act is condemnable. Decisions of the Courts particularly decisions of this Court are case laws under the principle of stare decisis are binding on this Court and all other Courts below, hence in citing his case, Counsel have to ensure accuracy.
This Court will thus completely ignore the case of Okwuagbala Vs Ikwueme cited by the Counsel to the Respondent.”
Let me look at some of the wrongly cited cases by the Learned Appellant’s Counsel which are the electronic report. Learned Counsel cited Orisan vs People of Lagos State (2019) LPELR-CA/L/457CA/2016 and Onubogu & Anor vs the State (1974) LPELR-SC 180/1974. The Law Pavilion Electronic Law Report is cited with name of the parties first, the year of the report, followed by the name of the report (LPELR) and then followed by some figure which numbers are assigned to each case. The figures are numbers which are peculiar to each case. This is then followed by the Court which decided the case and then the page of the case. This is how Law Pavilion Electronic Law Report is cited. The Appellant’s Counsel did not follow this format not just once but four times in the Appellant’s brief. If learned Counsel had taking just a little time to cross-check, he would not have attempted to mislead the Court with wrong citation.
As if that is not enough, Counsel to the Appellant also submitted that trial within a trial was not conducted and therefore his client was denied fair hearing. If this is the case, it is serious because the denial of fair hearing is fundamental and can nullify the whole proceeding. The proceeding and judgment will be a nullity. See Maduri v. Hon. Commissioner for Land and Survey, Yobe State & Anor (2021) LPELR-55424 (CA); Ovunwo & Anor vs Woko & Ors (2011) LPELR-2841 (SC). This may just be the time to address the 2nd issue formulated for determination by the Appellant’s Counsel which was adopted by the Respondent’s Counsel. I will reproduce same here for ease of reference:
“Whether the failure to conduct trial within trial in the circumstance of this case does not violate the right to fair hearing of the Appellant thereby liable to render the decision a nullity? (Distilled from Ground three).”
The issue here is whether trial within a trial was conducted when the Appellant’s Counsel objected to the admissibility of the statement of the Appellant which was eventually admitted as Exhibit ST2. The Appellant’s Counsel submitted that a trial within a trial was not conducted. The Respondent’s Counsel on the other hand submitted that a trial within a trial was conducted where Appellant testified as DW1TWT. Both Counsels cannot be right as one is wrong and the other right. The Counsel who is wrong cannot in my opinion have any justification for being wrong because it is clear on the record what happened at the lower Court. I will not be mistaken if I find that it is not an error for Counsel to have taking the position but rather it is a deliberate action to mislead the Court or in gross ignorance. Whichever case, it is not good for the reputation of the Counsel that is wrong.
To know which of the Counsels is right, the appropriate place to look at is the record of appeal. I have looked at the record and discovered from the proceedings in pages 13-14 of the record that a trial within a trial was conducted where the Appellant testified as a witness, DWITWT. I discovered that the trial within a trial proceeding was aborted because the Appellant in his evidence changed his position from challenging the statement from voluntariness to denying signing the document. At this stage, the lower Court was right in admitting the document. See Chibuike Ofordike vs The State (2019) LPELR-46411, Akwuobi vs State (2016) 12 SC (pt 1) 1. It is not right for Counsel to the Appellant to say trial within a trial was not conducted. It was conducted but aborted by the lower Court when the Appellant denied making the statement which makes it unnecessary to continue with the trial within a trial. This is because by law a trial within a trial is necessary when the accused in a Criminal Trial is challenging his external judicial statement on the premise that he did not make the statement voluntarily. However, when the accused denies making the statement, trial within a trial is not necessary. In the light of what happened in Court as contained at pages 13-14 of the record, I cannot agree with the Appellant’s Counsel. For the Appellant’s Counsel to boldly formulate an issue on a wrong premise and challenged fair hearing on this wrong premise is really sad. How could Counsel do this, what was Counsel thinking when he submitted that trial within a trial was not conducted? Counsel should always ensure that they go through the records so as not to mislead the Court. The trial within a trial was conducted though aborted and therefore it is not true that the Appellant was denied fair hearing. Counsel should not follow the tradition of most Counsel to challenge fair hearing when they have a bad case. There is no premise whatsoever to justify the Appellant’s challenge of fair hearing. Therefore, issue 2 as formulated on the Appellant’s brief is based on a misconception, since trial within a trial was conducted. Issue 2 cannot stand and cannot be resolved in favour of the Appellant but rather in favour of the Respondent.
I will now address the first issue which is whether the decision of the lower Court can stand the test of the law to warrant conviction, particularly when the victim of the crime; PW4 and PW5 in their evidence in Court denied the fact that the Appellant (their father) had sexual intercourse with them. The prosecution has the responsibility to prove the guilt of the Appellant by proving the ingredients of the offences of rape and incest beyond reasonable doubt. The Appellant’s Counsel seems to hammer on the fact that there is no direct evidence and so the lower Court could not have convicted and sentenced the Appellant. I will look at the substance of that submission later but suffice to say that the law is trite on the fact that the prosecution can establish the criminal liability of the Appellant by direct evidence, confessional statement or circumstantial evidence. These three ways of establishing criminal liability are mutually exclusive and not inclusive, meaning that by any of the three ways the prosecution can establish the criminal liability of the Appellant. See Eyop vs State (2018) ALL FWLR (pt 962) 1698; Emeka vs State (2001) FWLR (pt 66) 682.
I have looked at the evidence of the parties as shown in the record of appeal, apart from the evidence of PW3, the victims of the offence (PW4 and PW5) amount to direct evidence. I will come to the legal effect of the oral evidence of PW4 and PW5 been at variance with their extra-judicial statement which are Exhibit ST4 and ST5 later in this judgment. At this point, I will look at the evidence of the parties before the lower Court in determining whether they proved beyond reasonable doubt in any of the three ways that the Appellant committed the offences of incest and rape of PW4 and PW5.
PW1 Pogu Dama was the Police Officer attached to Borno State Criminal Investigation Department (CID) who was the second officer who investigated the case against the Appellant. He took the Appellant’s statement in Exhibit ST1. There is nowhere in his evidence contained in the record where he either stated, suggested or could be inferred that he was an eye witness to the commission of the offence. The Exhibits tendered through him are ST1, Photo 1 and 2, MR1 and MR2. In his evidence, it is clear that the victims and the Appellant denied that any offence was committed. His evidence cannot pass as the bases of conviction of the Appellant in any of the three ways mentioned above. He was not an eyewitness, there is no circumstance that suggests to him that the Appellant committed the offence and no confession was made before him. Exhibits MR1 and MR2 only showed that PW4 and PW5 were sexually assaulted but those exhibits did not show or say that it was the Appellant that caused all the effect revealed by Exhibits MR1 and MR2. Though PW1 said his investigation revealed that PW4 and PW5 were made to change their mind, there is no evidence that showed the bases of that finding. PW1 evidence did not help the Respondent’s case that much. One down and a few to go.
Moving forward, let us look at the evidence of PW2, Constable Ali Mohammed attached to the Biu Police Station who initially investigated the matter and took Exhibits ST1, ST3-ST5. He was not an eyewitness to the commission of the offence. All he did was to take statements from the Appellant. We will later in this judgment look at whether the Lower Court was right in convicting the Appellant based on those statements but for now suffice it to say that the PW2 was not an eye witness to the offence and could therefore not give direct evidence.
The evidence of PW3 seems to have an interesting twist as it seems to give the impression that he is an eyewitness of what happened. In fact in Exhibit ST3, the PW3 was emphatic that he and his friends saw the Appellant having sex with one of the girls. This much his evidence also revealed at page 15 of the record when he said:
“That the accused was having sexual intercourse with Zara.” The lower Court believed this testimony and found at page 33 of the record which is page 9 of the judgment thus:
“PW3’s testimony is to the effect (sic) he saw the accused person come out of the bush with his pants down. PW3 narrated how the accused person begged him not to report the incident to the police. Now from the forgoing testimony of the PW3, I do not agree with the learned Counsel to the accused person that the testimony of the PW3 is hearsay within the meaning of the provision of Sections 37 and 38 of the Evidence Act 2011 because the witness gave an eyewitness account of what he saw himself on the day of the incident…And he testified that when he himself asked the alleged victim what they were doing they told him that the accused person had sex with the two victims. This testimony of the PW3 is also consistent on all material facts with the statements (sic) the PW3 and the alleged victims PW4 and PW5 which (sic) made at the Biu Police Station exhibits ST3, ST4 and ST5 respectively.”
The lower Court had the privilege of seeing the witnesses before it had the powers to make findings which this Court must respect and not interfere with except it is perverse. I cannot seem to see a perverse finding here. Let me take the argument forward by saying that, even if the evidence of PW3 cannot qualify as direct eyewitness, it can pass for circumstantial evidence. In my opinion, the circumstantial evidence is strong. The law is settled to the effect that a Court can convict a person based on the circumstantial evidence available if the evidence is so strong that points to the person as the one who committed the offence. For circumstantial evidence to be used as the bases of conviction of an accused person, the evidence must be so cogent and compelling with an irresistible flow from the circumstances that the Appellant committed the offence. When all the surrounding events and the circumstances are pieced together, it forms an unbroken chain leading to an irresistible conclusion that the Appellant committed the offence, the condition to convict circumstantial evidence will have been satisfied. The evidence must be positive and direct. See Mustapha Mohammed & Anor Vs The State (2007) 11 NWLR (pt 1045) 303; Habibu Usman vs The State (2013) LPELR-20586 (SC).
The evidence of PW3 at pages 15 -16 of the record clearly establishes a strong circumstantial evidence against the Appellant. He saw PW4 and the Appellant in the bush having sex. The Appellant trousers was down. When he accosted the Appellant, the Appellant knelt down begging him not to report the matter to the police. The PW4 and the Appellant emerged from the bush together. When the PW4 and PW5 were taking to the Hospital they were examined and Exhibits MR1 and MR2 was produced. The result of the medical examination revealed that they were sexually assaulted or at worse there was sexual intercourse. The examination revealed that there were bruises and bloodstain seen around their vulva with whitish case and hymen rupture. The result was written on 15/8/19 but the examination was done on 8/7/19 about 2 hours within the period the offences were committed. These are strong circumstantial evidence against the Appellant from the evidence of the PW3.
The lower Court also relied on Exhibit ST1, the confessional statement of the Appellant in convicting him though the statement was retracted at the trial by the Appellant himself. The retraction of confessional statement during trial is not new. It is an act that accused persons have mastered. It is therefore not new and it will continue. Based on this, Court should not be quick to accept the retraction but rather the retraction will necessitate the Court looking for evidence outside the retracted statement that will corroborate the statement. By this I do not mean the Court will be an investigator, a Court cannot do that. What I mean is that within the evidence before it a Court can see whether there is evidence outside the statement which suggests that the statement is true. This is what is referred to as lose application of the veracity test. I must state the law on a confessional statement and whether conviction can be based on the retracted confessional statement of an accused is settled. A confessional statement is a statement made by the accused which admits that he committed the offence. This is in line with the provision of Section 28 of the Evidence Act, 2011. When a person makes a statement admitting or suggesting that he committed an offence that statement will be a confessional statement within the provision of the law. To amount to confessional statement, the statement must be made under caution, freely and voluntarily without any form of inducement or threat. See Kasa vs. State (1994) 5 NWLR (Pt.344) 269. It is usually made to the police. In Adesina & Anor vs. State (2012) 6 SC (Pt. III) 114, the Supreme Court held:
“By virtue of Section 27 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of offence for which he stands accused. Once admitting the charge or creating the impression that he committed the offence charged; the statement becomes confessional.
When confessional statement has been proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, it is enough to sustain or base the conviction of an accused. It does not matter whether the maker retracted the statement in the course of the trial. Such a retraction does not necessarily make the confession inadmissible. See Egboghonome vs. State (1993) 7 NWLR (Pt.306) pg. 383, Bature vs. State (1994) 1 NWLR (Pt.320) pg. 267, Solola vs. State (2005) 11 NWLR (Pt.937) pg.460, Edhigere vs. State (1996) 8 NWLR (Pt.464) pg.1, Uluebeka vs. The State (2000) 4 SC (Pt.1) pg. 303, Idowu vs. State (2000) 7 SC (Pt.11) pg.50 and Alarape vs. State (2001) 14 WRN 1.”
A Court can convict solely on the confessional statement of an accused person even if it is retracted provided the Court is certain that the statement was voluntarily made. While a Court can convict solely on the retracted confessional statement of an accused, it has been stated over and over again that a Court should not be quick at convicting the accused on the retracted confessional statement without passing the statement through the veracity test. The veracity test is the test that confessional statement must pass before conviction can be based or founded on it. This test is satisfied if a Court can find any evidence outside the confessional statement which makes the statement most probably true. This test is important because many a times accused persons are compelled to admit to crimes they did not commit to avoid torture. In Akinrinlola vs The State (2016) 16 NWLR (pt 1537) 73, the Apex Court held:
“It is well settled that once a statement is in compliance with the law and rules governing the method for taking it and it is tendered and admitted as an exhibit, then, it is good evidence and even if later retracted, the retraction will not vitiate its admission as a voluntary statement… This Court had in many cases spanning a long time handed down the conditions to examine the truth of a confessional statement and in the example of Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (Pt.138) 150, the Supreme Court stated:-
That to test the veracity of a confessional statement, the following should be evident:-
1. Is there anything outside the confession which shows that it may be true?
2. Is it corroborated in anyway?
3. Are the relevant statement of facts made in it most likely true as far as they can be tested?
4. Did the accused have the opportunity of committing the offence?
5. Is the confession possible?
6. Is the alleged confession consistent with other facts which have been ascertained and established?
Along the same line of thought, this Court stated in Alarape v. The State (2001) 5 NWLR (pt. 705) 79, that the test in determining the veracity of a confessional statement is to seek any other evidence even if slight, of circumstances which make it probable that the confession is true.”
The question is whether in applying the above test, the lower Court was right to have convicted the Appellant. Is there any evidence outside the statement to corroborate the confession?
The Appellant did not deny making Exhibit STI but deny making Exhibit ST2. Exhibit ST1 was made on 12/7/19, which is 4 days after the incident when the Appellant would have had time to rethink and consider what he is confronted with. The statement of the Appellant made on the day of the incident, that is 8/7/19 (Exhibit ST2) when he was taking to the Police Station after all the begging in the scene of the offence after admitting committing the offence seem to be more believable.. The lower Court accepted it as a confessional statement and used the veracity test in coming to the conclusion that the confession is true. The Court at page 36 of the record which is page 11 of the judgment held as follows:
“The attempt by the accused person to retract his confessional statement is of no moment because I find that the confessions of the accused person in Exhibits ST2 are true and unequivocal. The confessions are corroborated by the testimony of PW3 and statements in Exhibits ST3, MR1 and MR2.”
The Appellant denied making Exhibit ST2. Though he initially during the trial said he did not voluntarily sign it which necessitated a trial within a trial but this was aborted and the statement admitted when the Appellant later denied even making the statement at all. I have compared Exhibit ST1 which the Appellant did not deny with Exhibit ST2 which he denied making, I am of the view that the signature in both exhibits are identical particularly the signature at the end of the statement. The PW2 who took Exhibit ST2 had stated in evidence how he took that statement which complied with the law I cannot fault the finding of the lower Court which is that the Appellant made Exhibit ST2. I also agree that Exhibit ST2 is an afterthought. In the light of that finding, what is left is whether the said Exhibit ST2 which is a confessional statement passed the veracity test.
Aside from the confessional statement, the statement and the evidence of PW3 can provide enough corroborative evidence for Exhibit ST2. Exhibit ST1 also to some extent corroborate the fact that the Appellant was at the scene of the crime with the victims. Exhibits MR1 and MR2 show that on the same day of the incident, the PW4 and PW5 had some damages to their vulva with whitish cast and the hymen was ruptured. All these are evidence of penetration of an object on the vagina of PW4 and PW5. The statement of PW4 and PW5 when the incident was fresh without any opportunity for coaching and rehearsal stated clearly that the Appellant (their father) had sexual intercourse with them. There is enough evidence outside the confessional statement which corroborates the confessional statement of the Appellant. I agree with the lower Court to this extent.
The main thrust of the Appellant’s Counsel submission on issue 1 is that since the PW4 and PW5 had giving evidence at variance with Exhibits ST4 and ST5, the lower Court should have disregarded their statements and not to rely on same to convict the Appellant especially when the Respondent did not declare them hostile witnesses. In my opinion, it is not an issue whether they were or were to be declared hostile witnesses or not. This is irrelevant in this case. The law in a situation like this is not whether the prosecution declare them hostile witnesses but rather that both the evidence of PW4 and PW5 in Court and the extra-judicial statements Exhibits ST4 and ST5 will be rejected. See Ojodomo Ekomo Alfred vs The State (2020) LPELR-50229 (CA). I therefore reject the evidence of PW4 and PW5 and Exhibits ST4 and ST5. No conviction therefore can be based on them. The implication of this is that if the conviction of the Appellant is based on the evidence of PW4 and PW5 and their statements Exhibits ST4 and ST5, the conviction will be overturned since their evidence and statements are rejected. I have looked at the judgment of the Lower Court and I make bold to say that the conviction and sentencing of the Appellant in the lower Court is not based solely on the evidence of PW4 and PW5 and their statements but rather based mainly on the confessional statement of the Appellant, evidence of PW3 and Exhibits ST2, ST3, MR1 and MR2. The lower Court pieces all those evidence together in arriving at its decision. The point I am laboring to make here is that, outside the evidence and the statements of PW4 and PW5 the victims which I hereby reject, there are sufficient evidence which satisfies the requirement of proof beyond reasonable doubt upon which the lower Court based its judgment. I resolve issue 1 in favour of the Respondent.
Having resolved both issues in favour of the Respondent, this appeal fails and it is dismissed. The decision of the lower Court that is, the decision of Hon. Justice A. M. Ali of the Borno State High Court in Charge No: BOHC/MC/CR/90/CTIO/19- Idrisa Ali vs The State delivered on 12/11/19 is hereby affirmed. For avoidance of doubt, I affirmed both the conviction and the sentence of the Appellant. There is evidence that the Appellant had sexual intercourse with PW4 and PW5 his daughters who are minors been 12 years old. That establishes the offences of incest and rape. The issue of consent does not arise since they are minors. It is not even raised so no need to go into that at all. By way of obiter, I cannot resist the temptation of roundly condemn the demonic, barbaric, and devilish act of the Appellant.
It is most unfortunate that the Appellant who has 4 wives is not satisfied with them, but decided to have sexual intercourse with his own children. The spirit of a father has departed from him and the spirit of a beast has taking control of him. He blames the devil. The devil does not have so much power to make us do what we do not want to do. He can tempt us but it is our decision to fall. When we fall for his temptation we should take responsibility. The devil that tempts the Appellant which made him to commit this offence not only against PW4 and PW5 but against humanity and society is not here to safe him. This is characteristic of the devil. He tempts you, lead you into sin and then leave you to face the consequences of the sin alone. The Appellant is serving the sentence alone now, and the devil is gone looking for another prey, and with the sensitivity of the general public I pray he finds none. To deter people from such illegal, immoral, and demonic action, I also endorsed the sentence. This is more so that there is no appeal against sentence. The wicked act should be roundly condemned with the maximum sentence.
For avoidance of doubt, I affirm the conviction of the Appellant for the offences of incest and rape and further affirm the total of 17 years imprisonment sentence of the lower Court since there is clear evidence that the Appellant had sexual intercourse with the PW4 and PW5 who are his children thereby committed the offences of rape and incest punishable under Section 283 and 390 of the Penal Code Law, Cap 102, Laws of Borno State of Nigeria, 1994.
JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, Ebiowei Tobi, J.C.A. I agree with his reasoning and conclusion.
The Appellant herein was charged and convicted for the dual offences of incest and rape of his two 12-year-old daughters punishable under Sections 390 and 283 of the Penal Code. Upon arraignment before the lower Court, he denied the charge. The Respondent therefore produced evidence through witnesses and documents to prove the charge and the Appellant adduced evidence in his defence.
Upon a thorough consideration of the evidence adduced before him, the learned trial Judge found the Appellant guilty as charged. He therefore convicted and sentenced him accordingly. Upon a close examination of the printed record of appeal, it is evident that the learned trial Judge relied on the evidence of the victims, PW4 and PW5 in conjunction with other damning pieces of evidence to convict the Appellant. However, the evidence of the PW4 and PW5 in Court contradicted their statements to the Police Exhibits ST4 and ST5 in that in Court, they denied their earlier statements that their father, the Appellant raped them. In the circumstances, this has rendered both their testimonies in Court as well as their statements unreliable – Alfred V State (LPELR-2020) (CA). I therefore agree with the lead judgment that any reliance on same was wrong in law.
Nevertheless, outside the evidence of PW4 and PW5 as well as Exhibits ST4 and ST5, there was other circumstantial evidence which established the offences against the Appellant. This was in the form of the evidence of PW3 as well as Exhibits ST2, ST3, MR1 and MR2. The evidence PW3 was key in that he stated that he actually saw the Appellant engaging in sexual intercourse with one of the victims. The learned trial Judge who saw and heard the witness, believed his evidence. There is nothing before this Court to cause me to disagree with the evaluation and assessment of the evidence of this witness. In addition are the medical reports of medical examinations conducted on the victims a few hours after the rape. The report confirmed that the girls had been sexually assaulted or had had sexual intercourse within the period stated. These pieces of evidence corroborated the confessional statement of the Appellant, Exhibit ST2, which he subsequently retracted during trial. It is the law that the retraction of a confessional statement does not without more render it useless to the Court. See Iweka V State (2013) 3 NWLR (Pt. 1341) 285; Osetola V State (2012) 17 NWLR (Pt. 1329) 251; Oseni V State (2012) 5 NWLR (Pt. 1239) 351; Eke V State (2011) 3 NWLR (Pt. 1235) 589); Ekpe V State (1994) 9 NWLR (Pt. 368) 263.
The law is also settled that a confessional statement is often the best evidence of the commission of a crime for it states, in the accused person’s own words, the role he played and constitutes an acknowledgement of guilt. In the instant case, the Appellant made the confessional statement, Exhibit A& A1, narrating how he committed the offence – Yahaya V State (2018) 16 NWLR (Pt. 1644) 96, 110 (SC), Afolabi V State (2016) 11 NWLR (Pt. 1524) 497, Asimi V State (2016) 12 NWLR (Pt. 1527) 414, Fabiyi V State (2015) 18 NWLR (Pt. 1490) 80, Musa V State (2013) 9 NWLR (Pt. 1359) 214.
Furthermore, it is also the law that the confessional statement of an accused person alone is sufficient to ground a conviction. A confession alone, properly proved, is enough to ground a conviction, even without corroboration. Thus, an uncorroborated confessional statement of an accused person can be acted upon, without more. Nonetheless, it is advisable to look for some evidence outside the confessional statement which makes it probable that the confession is true. In the instant case, there is evidence which corroborates the facts stated in the confessional statement. This is in the form of the evidence of PW3 in conjunction with Exhibits ST2, ST3, MR1 and MR2. Thus, the learned trial Judge was right when he relied on these pieces of evidence to convict the Appellant for both offences.
Based on this, and for the more comprehensive reasons in the lead judgment, I dismiss the appeal as unmeritorious. I abide by the consequential orders made in the lead Judgment.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had a preview of the judgment of my learned brother, EBIOWEI TOBI, JCA where the facts of this case have been lucidly set out. I am in entire agreement with His Lordship’s reasoning and conclusion.
I also dismiss this appeal and affirm the judgment of the lower Court delivered by A. M ALI J. on the 12th of November, 2019.
Appearances:
Yusuf A. Ali, Esq. Holding the brief for A. B. Usman, Esq. For Appellant(s)
K. S. Lawan, Hounable Attorney General Borno State, with him, A. F. Mishelia, Senior State Counsel, I. Mohammed, Esq., State Counsel and Y. A. Bakarema, State Counsel For Respondent(s)