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ALIYU v. STATE (2022)

ALIYU v. STATE

(2022)LCN/16193(CA)

In the Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, January 10, 2022

CA/KN/441/C/2017

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

RABI’U ALIYU APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS

Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that every person charged with a criminal offence shall be presumed innocent until his guilt is proved. The burden of proof with respect to criminal offences is on the prosecution which must prove the charge against the accused beyond reasonable doubt. See Section 135 (1) of the Evidence Act. By proof beyond reasonable doubt, the law insists that every ingredient of the offence with which the accused is charged must be proved by the prosecution. Failure to prove any of the ingredients would result in the acquittal of the accused person. See OBI VS. THE STATE (2013) 5 NWLR (PT. 1346) 68; BABATUNDE VS. THE STATE (2014) 2 NWLR (PT. 1391) 298 and SABASTINE VS. THE STATE (2020) LPELR 50319.

However, the burden on the prosecution is not proof beyond all shadow of doubt for absolute certainty is impossible in criminal trials save in certain exceptional circumstances. Once the evidence is so strong against an accused as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, the case is said to be proved beyond reasonable doubt; in other words, this can also be attained by proof of all the ingredients of the offence. See ISAH VS. THE STATE (2018) 8 NWLR (PT. 1621) 346, EZEANI VS. FRN (2019) 12 NWLR (PT. 1686) 221, PHILIP VS. THE STATE (2019) 13 NWLR (PT. 1690) 209 and MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL ER 372. The prosecution is at liberty to prove its case by calling eye witness to the commission of the offence, or by circumstantial evidence, or by a confessional statement made by an accused person. The prosecution can rely on any of the three modes or all of them to prove its case. See ADIO VS. THE STATE (1986) 5 SC 94, ABIRIFON VS. THE STATE (2013) LPELR 20807, GARBA VS. FRN (2014) LPELR 24591 and MUSA VS. THE STATE (2014) LPELR 22912. PER LAMIDO, J.C.A.

THE POSITION OF LAW ON THE OFFENCE OF RAPE

The Appellant was convicted for the offence of rape contrary to Section 283 of the Penal Code. 

Rape has been defined as an unlawful carnal knowledge of a women or girl by a man without her consent or with her consent if her consent is obtained by force or by means of threat or intimidation of any kind or by fear of harm or by means of false act or when the girl is below 14 years of age and in case of a married woman by personating her husband. See POSU VS. THE STATE (2011) 2 NWLR (PT. 1234) 392.
In a charge of rape contrary to Section 283 of the Penal Code, the prosecution must prove the following ingredients of the offence:-
1. That the accused has sexual intercourse with a woman or girl;

a. Against her will,
b. Without her consent,
c. With her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married
d. With or without her consent when she is under 14 years of age or of unsound mind.
2. That the woman was not the wife of the accused or if she is his wife that she had not attained puberty.
3. That there was penetration.
The prosecution must prove all the above ingredient in order to secure a conviction. PER LAMIDO, J.C.A.

THE POSITION OF LAW ON THE ISSUE OF NOT CALLING AN INTERPRETER AS A WITNESS

First, on the issues of not calling the interpreter as a witness, it is to be noted that in the course of recording statements of suspects, care must be taken to note that not all suspects understand English language which the language of our superior Courts. Therefore, situations abound where suspects are more comfortable in giving their statements in their languages. When this happened, it is the duty of the Police officer to interpret the statement made in any vernacular into English language where he is proficient in both languages. Still there are situations where another person who did not partake in the recording of the original statement interprets same. In this case, the law is well settled that both the Police officer who recorded the earlier statement and the interpreter must be called to testify at the trial. The consequences of not calling an interpreter to testify will render the interpreted statement hearsay and inadmissible. See DANLAMI VS. THE STATE (2014) LPELR 24084, IFARAMOYE VS. THE STATE (2017) LPELR 42031 and MUSA VS. THE STATE (2017) LPELR 43017. PER LAMIDO, J.C.A.

DEFINITION OF EVIDENCE OF CORROBORATION

Evidence of corroboration is defined as any supplementary piece of evidence to that already given and tending to strengthen or confirmed it. It is also an evidence by an independent witness who confirm in some material particular not only that a crime has been committed but also that it was committed by the accused. See AMADI VS. THE STATE (1993) 8 NWLR (PT. 314) 644 and SIWOBI VS. COMMISSIONER OF POLICE (1997) 1 NWLR (PT. 482) 411. Corroboration of evidence could either be a matter of law or practice. It is matter of law where a statute stipulates that evidence of a witness cannot be acted upon save where there exists another evidence given by an independent witness that tends to confirm in some material particular the earlier evidence given in the case. The circumstances where corroboration is required as a matter of practice are in those cases where the Court would consider a conviction as unsafe without corroborative evidence. In cases of rape and other sexual offences, it is desirable that the evidence of the prosecutrix be corroborated by other piece of evidence even slight, implicating the accused or tending to confirm the evidence of the prosecutrix. This is apart from the provision of Section 209 of the Evidence Act.
There is no rule as to what a corroborative piece of evidence is and how it can be applied but the general proposition is that the corroborative evidence needs not be direct that the accused person committed the offence. See MUSA VS. THE STATE (2013) LPELR 19932, ALI VS. THE STATE (2020) LPELR 53409 and ISAH VS. THE STATE (Supra).  PER LAMIDO, J.C.A.

ABUBAKAR MU’AZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kano State High Court delivered on 17th January, 2017 by Muhammed, J. The Appellant was arraigned before the trial Court on a one count charge of rape contrary to Section 283 of the Penal Code Law of Kano State. The charge against him reads thus:-
“That you Rabiu Aliyu on or about the 10th day of March, 2014 at about 14:00 hrs. at Jaen quarters, Sharada Kano Municipal Local Government Area of Kano State within Kano Judicial Division committed the offence of rape by doing an act to wit: You lured one Rabi Idris, a girl of 9 years of age into an uncompleted building and forcefully had sexual intercourse with her. You thereby committed an offence punishable under Section 283 of the Penal Code.”

The Appellant pleaded not guilty to the charge and the prosecution opened its case by calling two witnesses and tendered in evidence some exhibits. The appellant testified in his defence and called two other witnesses. At the end of the trial and adoption of written addresses, the trial Court found the Appellant guilty as charged and sentenced him to 14 years imprisonment.

Dissatisfied with his conviction and sentence, the Appellant filed his notice of appeal which was later amended with the leave of Court on 25th September, 2019. The amended notice of appeal contained eight grounds of appeal couched thus:
GROUND ONE
The learned trial High Court erred in law in admitting and relying heavily on Exhibit A, the Appellant’s alleged confession statement which is in English language when the Appellant only understands Hausa language and his alleged statement was made in the said language hereby occasioning a miscarriage of justice.
GROUND TWO
The finding of the learned trial judge quoted hereunder even before he evaluated and ascribed probative value to the Appellant’s case is perverse and thereby occasioned a miscarriage of justice viz:
“I therefore find the most important ingredient of the offence of penetration proved against the accused person. And is so hold.
With all the ingredient of the offence proved by the prosecution, I find the prosecution has proved its case against the accused person.”
GROUND THREE
The learned trial judge erred in law and occasioned a miscarriage of justice when he held that Exhibit A and B corroborates the evidence of the prosecutrix i.e. PW1 who is a minor.
GROUND FOUR
The learned trial judge erred in law and occasioned a miscarriage of justice when he held thus:-
“Exhibit A is a confessional statement of the accused which I have already tested it and found ti to be of probative value having passed all the 6th test of veracity …”
GROUND FIVE
The learned trial judge erred in law and occasioned a miscarriage of justice when he held thus:
“The contents of Exhibit B is in confirming and corroborating PW1’s evidence that when was sexually penetrated…”
GROUND SIX
The trial Court erred in law and occasioned a grave miscarriage of justice when it held that when in rejecting the defence of insanity put up by the Appellant, it held that:
“the accused was perfectly aware of everything that was happening as such was in full control of his mental faculties. He was aware of his environmental, how many days he stayed at Hisbah and was aware of being taken to State CID by Hisba officials. This clearly shows there was no evidence of any psychotic disorders with him.
GROUND SEVEN
The trial Court erred in law and occasioned a miscarriage of justice for convicting the Appellant for the offence of rape contrary to Section 282 of the Penal Code Law Kano State, 1991, when the prosecution failed to prove all ingredients of the offence.
GROUND EIGHT
That the judgment of the trial High Court is unreasonable and unwarranted and cannot be supported regards being had to the evidence at the trial.

In line with the practice and procedure of this Court, the Appellant filed his brief of argument on 27th May, 2019 and in the brief three issues for determination were formulated. The issues are:-
1. Whether the Appellant was not denied a fair hearing in the determination of his case by the trial Court (grounds 1, 3, 4 and 5).
2. Whether in view of the totality of the evidence adduced in this case, the prosecution can be said to have discharged the burden of proof beyond reasonable doubt of the crime alleged in this case and in effect whether the decision of the trial Court is not perverse (ground 2 and 3). 

3. Whether the trial Court was right to have rejected the defence of insanity (Grounds 6, 7 and 8).


4. The Respondent’s brief of argument was filed on 17th September, 2021 but deemed filed on 11th October, 2021. Lone issue for determination was formulated by the Respondent in the following manner:-
Whether the lower Court was right in convicting and sentencing the Appellant for the commission of rape and dismissing the Appellant’s defence of insanity (Grounds 1 – 8).

In arguing the first issue for determination, learned Counsel for the Appellant, A.O. Odum, Esq., submitted that where a statement of an accused is made in a language other than English and it is interpreted by an interpreter, the interpreter must be called to testify otherwise the contents of the statement will be hearsay and inadmissible. He referred to IFARAMOYE VS. THE STATE (2017) LPELR 42031.

He argued that the trial Court was in grave error in admitting and relying on Exhibit A which is the alleged confessional statement made by the Appellant which was recorded in English language when the Appellant only understands Hausa language and also gave his statement in Hausa. The statement of the Appellant having been made in Hausa language ought to have been recorded in that language and later translated into English language. He referred to ADAMU VS. THE STATE (2019) LPELR 46902. He argued further that a statement made by the Appellant in Hausa language but recorded in English language is an infraction of the law as the statement made in the language of the Appellant ought to have been recorded and later interpreted into English language.

He also stated that the trial Court was in error to have relied on Exhibit B which was not tendered through its maker. He stated that the maker of Exhibit B ought to be called to testify as a result, the Court ought to have discountenance Exhibit B and its contents.

The trial Court was in error to have relied on the contents of Exhibit A and B to convict the Appellant.

Learned Counsel also submitted that the law is well settled that evidence of a minor must be corroborated before it can have any legal effect. He referred to ALI VS. KANO STATE (2018) LPELR 44201 and failure to corroborate the evidence of the prosecutrix who is a minor is fatal to the case of the Respondent. The evidence of PW1 ought to have been discountenanced by the trial Court.

On issue two, learned Counsel submitted that the burden of proving the commission of an offence lies on the prosecution failing which the accused is entitled to an acquittal. He referred to MOHAMMED VS. THE STATE (2016) LPELR 41328, EKPO VS. THE STATE (2018) LPELR 43843 and DAJO VS. THE STATE (2018) LPELR 45299. He argued that the trial Court was wrong to hold that the Appellant’s confessional statement which was retracted at the trial has satisfied the conditions set out for accepting a retracted confession in UBIERHO VS. THE STATE 146 NCC 160. Furthermore, he argued that the trial Court was in error to hold that Exhibit A is consistent with other facts ascertained and established. The reasoning of the trial Court is apparently based on both Exhibits A and B which are contradictory. First, he stated that Exhibit A showed that the Appellant first had carnal knowledge of the prosecutrix in 2013. However Exhibit B shows that upon examination conducted on the prosecutrix, it was found out that her hymen was broken and it is debatable if a girl’s hymen can be broken twice. Failure to consider these contradiction in both Exhibits A and B by the trial Court is fatal to the conviction of the Appellant. The position of the law is that where there is a material contradiction in a document the Court should disregard the contents of the document entirely. He referred to KAYILI VS. YILBUK & ORS. (2015) LPELR 24322.

He also stated that contrary to the holding of the trial Court that penetration as an ingredient of the offence of rape has been proved, even the medical report did not state that the semen found on the prosecutrix was the Appellant’s. The best evidence on this could seem to be a medical report stating that the semen found on the prosecutrix was the Appellant’s. Furthermore, failure of the prosecution to tender in evidence the medical report of the Appellant amounts to withholding of evidence.

Learned Counsel submitted that it is the duty of a trial judge to evaluate the whole evidence adduced in a case before coming to a conclusion and finding but in the instant case, the Court only evaluated the evidence adduced by the prosecution. He referred to ATUYEYE & ORS. VS. ASHAMU (1987) LPELR 638. Failure of the trial Court to evaluate the evidence of the prosecution and the defence before coming to a conclusion occasioned a miscarriage of justice and had the Court performed its duty by evaluating all the evidence adduced in the case, it would have reached a different conclusion. By that act, the trial Court shifted the burden of proof on the Appellant whereas the law places same on the prosecution. He referred to IGABELE VS. THE STATE (2006) LPELR 1441.

He also submitted that the trial Court was wrong to hold that failure of the Appellant to call his wife as a defence witness amounted to withholding evidence. The position of the trial Court cannot be supported by any law in view of the fact that the brother of the Appellant had testified whose evidence could not have been different from the Appellant’s wife. He referred to IDAGU VS. THE STATE (2018) LEPRL 44343 and KOPEK CONSTRUCTION LTD. VS. EKISOLA (2010) LPELR 1703.

On issue three, learned Counsel for the Appellant submitted that insanity being a mental disorder is capable of excusing a person from criminal responsibility. He referred to ADAMU VS. THE STATE (2014) LPELR 22696. The trial Court’s holding that the Appellant was not mentally incapacitated is not based on any direct evidence. The only evidence on the mental condition of the Appellant can be found in the testimony of DW2, DW3 and the medical report made by DW2. These pieces of evidence were neither challenged nor contradicted by the prosecution and the Court ought to have accepted them. He urged the Court to resolve all the three issues in favour of the Appellant and allow the appeal.

In arguing his lone issue for determination, learned Counsel for the Respondent, Musa A. Lawan, Esq. Hon Attorney General, Kano State submitted that the Appellant’s arguments relating to breach of right to fair hearing for recording his confessional statement in English is highly misconceived and in the same vain the cases of IFARAMOYE VS. THE STATE (Supra) and ADAMU VS. THE STATE (Supra) were cited out of context as their facts are clearly distinguishable from the facts of this appeal. This is so because the records indicated that it was PW2 who recorded the statement of the Appellant and she is proficient in both Hausa and English languages. Therefore, the Appellant cannot impute what is not in the record of appeal for the parties and the Court are all bound by the record of appeal. He referred to LEADERS AND COMPANY LTD VS. BAMAIYI (2010) 12 SC (PT. 10) 55, AKINPELU VS. ADEGBORE (2008) 45 SCNJ 220, OGIDI VS. THE STATE (2005) 1 SCM 159 and IWUOHA VS. NIGERIAN PORTAL SERVICES LTD (2003) 5 SCM 104. Therefore, the argument of the Appellant that the interpreter of the statement be called has no foundation.

On Exhibit B, he argued that it is not the law that it remained inadmissible simply because the maker was not called to give evidence. This Court has held in several decisions that failure to call the medical Doctor who prepared a medical report to testify does not render the said report inadmissible. The Court can act on it. He referred to ADAMU VS. THE STATE (Unreported) CA/K/385B/C/2018 delivered on 28th August, 2020; ADAMU VS. THE STATE (Unreported CA/K/385A/2018 and ISAH VS. THE STATE (Unreported) CA/K/385C/C/2018.

He also argued that it is not the law that a Court cannot convict on an uncorroborated evidence of the prosecutrix as neither the Evidence Act nor the Criminal Procedure Code have prohibited the reception of such evidence. He referred to OGUNBAYO VS. THE STATE (2007) ALL FWLR (PT. 365) 408, IBEAKANNMA VS. QUEEN (1963) 2 SCNLR 191, REEKIE VS. QUEEN (1954) 14 WACA 501 and SUNMONU VS. IGP (1957) WRNL 23 and AHMED VS. NIGERIAN ARMY (2017) ALL FWLR (PT. 869) 813.

He submitted further that the burden of proof placed on the prosecution is not proof beyond all shadow of doubt but proof beyond reasonable doubt. He referred to EKE VS. THE STATE (2011) ALL FWLR (PT. 566) 430, ABEKE VS. THE STATE (2007) ALL FWLR (PT. 366) and PAUL VS. THE STATE (2015) ALL FWLR (PT. 778) 893. In a charge of rape, the prosecution is expected to prove all the ingredients of the offence as established by our Courts. He referred to POSU VS. THE STATE (2011) 3 NWLR (PT. 1234) 393, OGUNBAYO VS. THE STATE (2007) 8 NWLR (PT. 1035) 157, UPAHAR VS. THE STATE (2003) 6 NWLR (PT. 816) 230, STATE VS. OJO (1980) 2 NCR 391 and IKO VS. THE STATE (2001) 14 NWLR (PT. 732) 221.

He argued that the prosecution tendered in evidence the confessional statement of the Appellant where the Appellant clearly admitted the commission of the offence which is sufficient to ground a conviction for the offence and although the Appellant retracted same at the trial, the retraction in itself does not render the statement inadmissible or worthless. Moreover, there is Exhibit B, the medical report which tends to support the confessional statement. The trial Court is therefore correct in ascribing probative value on Exhibits A and B. There was an overwhelming evidence adduced by the prosecution supporting the conviction of the Appellant. He referred to ATTAH VS. THE STATE (2009) 13 NWLR (PT. 1164) 284 and KAZEEM VS. MOSAKU (2007) 17 NWLR (PT. 1064) 523.

On the defence of insanity, learned Counsel submitted that the trial Court adequately dealt with the issue and came to a correct decision that the Appellant is not entitled to the defence. He urged the Court to dismiss the appeal.

I have noted the issues for determination formulated by parties and the submissions made in support of the issues, however, I am of the firm view that the issue formulated by the Respondent will dispose of this appeal one way or the other. The Court will adopt that issue with a slight modification. The issue is:-
Whether on the strength of evidence adduced at the trial the conviction and sentence of the Appellant for the offence of rape and dismissing his defence of insanity is justified.

All arguments raised in Counsel brief will be considered under the above formulated issue.

The facts of the case as can be gleaned from the record of appeal are that the Appellant was charged with the offence of rape contrary to Section 283 of the Penal Code Law of Kano State in that he had unlawful carnal knowledge of Rabi Idris a 9 year old girl. In its effort to prove the charge against the Appellant, the Respondent called two witnesses and tendered in evidence two exhibits.

PW1 is the prosecutrix an 11 year old girl at the time of giving evidence. She testified that the Appellant is her neighbour and his daughter is her friend. On the day of the incident she went to the Appellant’s house to play with his daughter. The Appellant on the pretext of sending her on errand took her to an uncompleted building. When she wanted to shout he closed her mouth and pull down her pant, removed his trouser and inserted his penis into her vagina. Before he let her go, he threatened to beat her up if she revealed to anyone what happened. Some people saw them coming out of the uncompleted building and held that Appellant and reported to Hisbah who in turn handed over the Appellant to the Police.

PW2 was the investigating Police Officer. She testified that she recorded statement of the Appellant in English language and later interpreted same to him in Hausa language and he thumb printed same. Exhibits A which is the confessional statement of the Appellant and Exhibit B, the medical report were tendered in evidence through PW2.

The Appellant testified in his defence and resiled from his earlier statement made to the Police in Exhibit A. He also called two other witnesses. DW2 is a medical doctor who examined him at a psychiatric Hospital and DW3 is his younger brother who narrated his mental condition before his arraignment and conviction.

Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that every person charged with a criminal offence shall be presumed innocent until his guilt is proved. The burden of proof with respect to criminal offences is on the prosecution which must prove the charge against the accused beyond reasonable doubt. See Section 135 (1) of the Evidence Act. By proof beyond reasonable doubt, the law insists that every ingredient of the offence with which the accused is charged must be proved by the prosecution. Failure to prove any of the ingredients would result in the acquittal of the accused person. See OBI VS. THE STATE (2013) 5 NWLR (PT. 1346) 68; BABATUNDE VS. THE STATE (2014) 2 NWLR (PT. 1391) 298 and SABASTINE VS. THE STATE (2020) LPELR 50319.

However, the burden on the prosecution is not proof beyond all shadow of doubt for absolute certainty is impossible in criminal trials save in certain exceptional circumstances. Once the evidence is so strong against an accused as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, the case is said to be proved beyond reasonable doubt; in other words, this can also be attained by proof of all the ingredients of the offence. See ISAH VS. THE STATE (2018) 8 NWLR (PT. 1621) 346, EZEANI VS. FRN (2019) 12 NWLR (PT. 1686) 221, PHILIP VS. THE STATE (2019) 13 NWLR (PT. 1690) 209 and MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL ER 372. The prosecution is at liberty to prove its case by calling eye witness to the commission of the offence, or by circumstantial evidence, or by a confessional statement made by an accused person. The prosecution can rely on any of the three modes or all of them to prove its case. See ADIO VS. THE STATE (1986) 5 SC 94, ABIRIFON VS. THE STATE (2013) LPELR 20807, GARBA VS. FRN (2014) LPELR 24591 and MUSA VS. THE STATE (2014) LPELR 22912.

The Appellant was convicted for the offence of rape contrary to Section 283 of the Penal Code. 

Rape has been defined as an unlawful carnal knowledge of a women or girl by a man without her consent or with her consent if her consent is obtained by force or by means of threat or intimidation of any kind or by fear of harm or by means of false act or when the girl is below 14 years of age and in case of a married woman by personating her husband. See POSU VS. THE STATE (2011) 2 NWLR (PT. 1234) 392.
In a charge of rape contrary to Section 283 of the Penal Code, the prosecution must prove the following ingredients of the offence:-
1. That the accused has sexual intercourse with a woman or girl;

a. Against her will,
b. Without her consent,
c. With her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married
d. With or without her consent when she is under 14 years of age or of unsound mind.
2. That the woman was not the wife of the accused or if she is his wife that she had not attained puberty.
3. That there was penetration.
The prosecution must prove all the above ingredient in order to secure a conviction.

From the record of appeal, the trial Court convicted the Appellant on the strength of the evidence of PW1, PW2 and Exhibit A and B. Learned Counsel for the Appellant argued that Exhibit A which is the statement made by the Appellant to the Police made in a language other than English, then the interpreter must be called as a witness, that the statement of the Appellant having been made in Hausa language ought to be recorded in that language before interpreting same into English language and that the statement is contradictory in itself and ought not to be relied upon by the trial Court.

First, on the issues of not calling the interpreter as a witness, it is to be noted that in the course of recording statements of suspects, care must be taken to note that not all suspects understand English language which the language of our superior Courts. Therefore, situations abound where suspects are more comfortable in giving their statements in their languages. When this happened, it is the duty of the Police officer to interpret the statement made in any vernacular into English language where he is proficient in both languages. Still there are situations where another person who did not partake in the recording of the original statement interprets same. In this case, the law is well settled that both the Police officer who recorded the earlier statement and the interpreter must be called to testify at the trial. The consequences of not calling an interpreter to testify will render the interpreted statement hearsay and inadmissible. See DANLAMI VS. THE STATE (2014) LPELR 24084, IFARAMOYE VS. THE STATE (2017) LPELR 42031 and MUSA VS. THE STATE (2017) LPELR 43017. In the appeal at hand, a careful perusal of Exhibit A will reveal that it was recorded by W/Sgt. Lami Magaji who interestingly is PW2 at the trial Court. The argument of learned Counsel for the Appellant on this point is both unfounded and misleading in view of the fact that PW2 testified that she recorded the statement of the Appellant at the State C.I.D. office and Exhibit A clearly revealed that.

Secondly, the Appellant volunteered and gave his statement in Hausa language, however, PW2 recorded the statement in English language, the question of whether a confessional statement must be recorded in the language in which it was made for it to be admissible has received several comments in a lot of cases of this Court and the Supreme Court. Preferably, where statements of suspects are recorded, it would be prudent to record such statement in the language a suspect speaks so as to ensue correctness and accuracy of the statement made by an accused person. See OLALEKAN VS. THE STATE (2001) LPELR 2561, OLANIPEKUN VS. THE STATE (2016) LPELR 40440 and SANI VS. KANO STATE (2020) LPELR 50742. However, failure to strictly adhere to this procedure would not render the statement inadmissible. In OLALEKAN VS. THE STATE (Supra) at 50 – 51, Onu, JSC held that:-
“This Court has held times without a number that the statement of an accused is not inadmissible merely because it is taken down in a different language from the language of the person making it.”
See SUNDAY VS. THE STATE (2014) LPELR 24415, OKON VS. THE STATE (2019) LPELR 49535 and ABDUL VS. THE STATE (2021) LPELR 54821. 

In the case at hand PW2 W/Sgt. Lami Magaji was the officer who recorded the Appellant’s statement. She testified that the Appellant gave his statement in Hausa language but she recorded it in English language. She interpreted the statement to the Appellant in Hausa language and he thumb printed it as being what he volunteered. In this circumstance, Exhibit A was properly admitted in evidence and failure to record the Appellant’s statement in Hausa language did not invalidate the statement or render it inadmissible.

Learned Counsel for the Appellant also attacked Exhibit B which is a medical report and argued that in the absence of its maker the trial Court ought to discountenance same. The Respondent’s Counsel argued otherwise. The Appellant’s Counsel objected to the admissibility of the medical report on the ground that PW2 was not the maker, nevertheless the trial Court overruled the objection and admitted the medical report in evidence. The trial Court relied on Sections 55 (1) of the Evidence Act and 245 – 250 of the Criminal Procedure Code to admit the medical report.

Section 55 (1) of the Evidence Act provides that:-
“55 (1) Either party to the proceeding in any criminal case may produce a certificate signed by the Government pharmacist, the Deputy Government Pharmacist, an Assistant Government Pharmacist, a Government Pathologist or entomologist or the Accountant General, or any other Pharmacist so specified by the Government Pharmacist of the Federation or of a state, any Pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State, or any Accountant specified by the Accountant – General of the Federation or of a State (whether any such officer is by that or any other title in the service of the State or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated in it.

(2) Notwithstanding Sub-section (1) of this Section, any certificate issued and produced by any officer in charge of any laboratory established by the appropriate authority may be taken as sufficient evidence of facts stated in it.
(3) Notwithstanding Sub-section (1) and (2)of this Section, the Court shall have the power, on the application of either party or of its own motion to direct that any such officer as is referred to in the subsections shall be summoned to give evidence before the Court if it is of the opinion that, either for the purpose of cross-examination or for any other reasons.”
From the above, a medical report by a Government pathologist/doctor who conducted an examination on a body or person is a relevant piece of evidence and is admissible in evidence not necessary through its maker. On application of either party to the proceeding or on its own motion, the Court has the power to call the Pathologist/Doctor to testify in respect of the report prepared by him. In WOWEM VS. THE STATE (2021) LPELR 53384) AT 50-51, Peter-Odili, JSC held that:-
“The Appellant had raised a concern over the admissibility of the medical report, Exhibit 6 as the maker was not called to testify. This grouse has been made in disregard to Section 55 (1) of the Evidence Act which has provided that either party to a proceeding in a criminal case may produce a certificate signed by specified government officers including any Pathologist or entomologist etc and the production of such certificate may be taken as sufficient evidence of facts stated therein. Sub-section 2 of the said Section provided thus: notwithstanding the provision of Sub-section (1) of this Section, any certificate issued and produced by any officer in charge of any laboratory established by the appropriate authority may be taken as sufficient evidence of the fact stated in it. Subsection (2) goes further to provide that the Court has the power on application of either party or of its own motion to direct that any such officer as is referred to in the subsection shall be summoned to give evidence before the Court, if it is of the opinion that the interest of justice so requires. It follows that the stance of the Appellant on the absence of the maker of Exhibit 6 cannot avail him in the light of clear provisions of Section 55 (1) and (3) of the Evidence Act.”
Furthermore, Section 249(3) (a) and(c)allows the admissibility of a copy of a medical report issued by a medical officer in proof of the nature of injury sustained or the cause of death. It may be admitted evidence and whereupon its admission there is any disagreement with the statement in the report, the Court shall summon such medical officer to appear as a witness. The provisions of Sections 55 (1), (2) and (3) of the Evidence Act and 249 (3), (a),(b) of the Criminal Procedure Code are almost similar. Therefore, Exhibit B can be tendered or was properly tendered through PW2. It is for Counsel to be Appellant to apply to the trial Court that the medical doctor be summoned to give evidence and having not done so, it is too late in the day to complain about non-calling of the medical doctor to testify. See FULANI M. VS. THE STATE (2018) LPELR 45195 and ADAMU VS. THE STATE (2020) LPELR 51121.

Now, coming to the ingredients of the offence, it is for the prosecution to prove that the Appellant had sexual intercourse with the prosecutrix in any of the manners enumerated in Section 282 (1) of the Penal Code. The trial Court relied on the evidence of PW1, Exhibits A and B. PW1 was an 11 year old prosecutrix. She testified as follows:-
My names are Rabia Idris Bello. I am 11 years old. I live at Jaen Quarters Kano. I know the accused person as he is my neighbor. I went to his daughter to play with her in his house then the accused called and said he was going to send me for an errand. Then he walked with me to a distance until when he saw an uncompleted building. Then he asked me to enter the uncompleted building. The he too entered. Then I was trying to cry out so he closed my mouth with this hand and he pulled down my pant. Then he too he removed his trouser then he brought out his penis and he put it inside my vagina. Then he said if I tell anyone he will beat me. Then he asked me to go home. Then I went then some people saw him coming out. Then they held.
Then he fell into a gutter. Then the people went to my house and reported to my father. Then the accused was arrested. Then he was taken to Hisbah quarters then to Bompai State C.I.D. Then he was taken to Court. I was taken to hospital to Murtala Mohammed Hospital. I was examined and it was confirmed he raped me. I was prescribed drugs.”

The Appellant’s Counsel argued that as a minor, the evidence of PW1 must be corroborated and there is no corroborative evidence adduced by the prosecution to support the evidence. The Respondent’s Counsel maintained that the law did not make corroboration in rape cases mandatory as such, the evidence of PW1 need no corroboration. This is a matter governed by the provision of Section 209 (1) and(3) of the Evidence Act. The Section provides that:-
209 (1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation. If in the opinion of the Court he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.
(2) …
(3) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection (1) of this Section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.

From the above provision, a child below the age of 14 years who is called or tendered to give evidence in a judicial trial shall not be sworn or affirmed. Further, the trial Court must be certain that the minor possesses sufficient intelligence to justify the reception of his/her evidence. Furthermore, before accepting such evidence, the trial Court must be satisfied that the said evidence is corroborated by some other material evidence in support of such testimony implicating the accused. See IDI VS. THE STATE (2017) LPELR 42587, IDRIS VS. THE STATE (2019) LPELR 50959 and ISAH VS. THE STATE (2020) LPELR 50741.

Evidence of corroboration is defined as any supplementary piece of evidence to that already given and tending to strengthen or confirmed it. It is also an evidence by an independent witness who confirm in some material particular not only that a crime has been committed but also that it was committed by the accused. See AMADI VS. THE STATE (1993) 8 NWLR (PT. 314) 644 and SIWOBI VS. COMMISSIONER OF POLICE (1997) 1 NWLR (PT. 482) 411. Corroboration of evidence could either be a matter of law or practice. It is matter of law where a statute stipulates that evidence of a witness cannot be acted upon save where there exists another evidence given by an independent witness that tends to confirm in some material particular the earlier evidence given in the case. The circumstances where corroboration is required as a matter of practice are in those cases where the Court would consider a conviction as unsafe without corroborative evidence. In cases of rape and other sexual offences, it is desirable that the evidence of the prosecutrix be corroborated by other piece of evidence even slight, implicating the accused or tending to confirm the evidence of the prosecutrix. This is apart from the provision of Section 209 of the Evidence Act.
There is no rule as to what a corroborative piece of evidence is and how it can be applied but the general proposition is that the corroborative evidence needs not be direct that the accused person committed the offence. See MUSA VS. THE STATE (2013) LPELR 19932, ALI VS. THE STATE (2020) LPELR 53409 and ISAH VS. THE STATE (Supra). 

The evidence of the prosecutrix has earlier been reproduced, the trial Court held as follows at p. 95 of the record: 

“The medical report Exhibit B corroborated the testimony of PW1 that she had been sexually assaulted. While Exhibit A confirmed and corroborated her evidence that it was the accused persons that had sexual intercourse with her.”

Now, let us take a look at both Exhibits tendered before the trial Court. Exhibit A is the statement of the Appellant to the Police. It is as follows:-
“… I could remember in the month of August 2013, Rabi came to my house and I bought awara from her. I dragged her into my room and I had carnal knowledge of her. On that day nobody was at home then my wife was in the neighbouring house. On 10/03/2014, she came to my house and we were watching movie with my family. NEPA took away light and I went out. She followed me but I was called her myself, I took her to an uncompleted building and had carnal knowledge of her.”

The Appellant’s Counsel argued that the above statement being retracted at the trial, the Court ought to find an independent evidence to test its veracity and there is none. The Court ought to reject its contents. 

Confession of an accused person to the commission of an offence plays a major role in the determination of his guilt and a Court is entitled to convict on the strength of the confession if it comes to the conclusion that it was voluntarily made. This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility. See OKEKE VS. THE STATE (2003) 15 NWLR (PT. 842) 25. 

Even where an accused retracts a voluntary confessional statement as in this appeal, such retraction in itself does not render such statement either inadmissible or worthless and untrue in considering the guilt of an accused. See ULUEBEKA VS. THE STATE (2000) 4 SC (PT. 1) 203 and IDOWU VS. THE STATE (2000) 7 SC (PT. 11) 50.
The Courts are however enjoined to take a decision on whether the retraction avails the accused or not. In most cases, the weight to be attached to such retracted confessional statement is what is important. See OCHE VS. THE STATE(2007) 5 NWLR (PT. 1027) 214 and ZUBAIR VS. THE STATE (2021) LPELR 53986. To my mind, since the retraction was made during the evidence in chief of the Appellant, the trial Court has a duty to look for other pieces of evidence outside the confession. 

In GALADIMA VS. THE STATE (2012) LPELR 15530 AT 21, Ogunbiyi, JSC held that:-
“The law is trite that once a confessional statement is proved as having been made voluntarily as in the instant case, by being direct, positive, unequivocal and clearly, suggestive of an admission of guilt, it is sufficient to ground conviction even where the maker resiled therefrom or retracted the same completely at the trial. Retraction in other words does not render a confession inadmissible. It does not also deter a trial Court from acting thereon. A confessional statement once properly proved, is sufficient to sustain a conviction despite any retraction by the maker as it is in the instant case.”
See EGBOGHONOME VS. THE STATE (1993) 7 NWLR (PT. 307) 383, IDOWU VS THE STATE(2000) LPELR 1429 and MINDI VS. THE STATE (2020) LPELR 52897.

The trial Court in the resolution of this issue raised before it applied the principles as enunciated in R VS. SYKES & CAR 233 on test to be applied to a retracted voluntary confession. The trial Court held at Pp. 96 – 98 of the record thus:-
“I will examine the evidence before me to see if the confessional statement of the accused person has passed the 6 tests of veracity as enumerated above. In respect of the 1st test, i.e., is there anything outside the confession which shows that it may be true? (there is the evidence PW1 which stated that the PW1 used to go to the accused’s house to play with his daughter). That PW1 identified the accused as her friend’s father. Again PW1 stated in her evidence that the accused took her to an uncompleted building where he had sexual intercourse with her. … On the 2nd test i.e. is the confession corroborated? The confessional statement is corroborated by the evidence of PW1 who identified the accused as the person who took her to an uncompleted building where he raped her. On the 3rd test that are the relevant facts true as far as can be tested? The fact that PW1 was sexual assaulted and penetrated is true as there is the evidence of PW1 and the medial report Exhibit B. Therefore the relevant fact is most likely as far as can be tested thus satisfying the 3rd test. On the 4th test i.e. did the accused person have the opportunity of committing the offence? The accused person had the opportunity of committing the offence as the PW1 always goes to his house to play with his daughter and on the faithful (sic) day when he called her out, held her hand and led her away from the house to an uncompleted building he was alone with her therefore the 4th test was also satisfied. On the 5th test, i.e. is the confession possible? the confession is possible even though the accused later denied making it. This is so as the accused was beaten up by the people who caught him before taking him to Hisbah office. I believe the accused confessed to the Police as well as Hisbah officials. On the 6th test, … the confession is consistent with the fact that PW1 was sexually penetrated. I therefore find all the 6 test for veracity of the confessional statement satisfied and established. I therefore accept the confessional statement of the accused.”

The trial Court has dutifully applied the test of veracity of a confessional statement on Exhibit A and came to a correct decision that Exhibit A is direct, positive and unequivocal. Having been voluntarily made by the Appellant, the trial Court is justified in according probative value to it. Exhibit B which is the medical report states thus:-
“RE: MEDICAL REPORT IN RESPECT OF RABI IDRIS AGE 9 YEARS FEMALE HOSPITAL NO. 05038/14
The above named patient was seen in our unit of this Hospital on the 10th March, 2014 with complaint of sexual assault which involves penis contact with vagina.
On examination: we found a distressed young child with vagina smeared whitish discharge bruises seen around introitus and hymen broken …”

Now, having examined both Exhibits A and B, there is no doubt that the contents of the exhibits have successfully corroborated the evidence of PW1. In his respect, the evidence tend to show that the Appellant forcefully had sexual intercourse with the prosecutrix, a girl of 9 years who is not lawfully married to him. Exhibit B, also show that the prosecutrix’s hymen was broken suggestive of a penetration. The Appellant in Exhibit A has admitted having sexual intercourse with the prosecutrix. The ingredients of the offence of rape are proved by the Respondent.

The Appellant raised the defence of insanity at the trial and it was considered and rejected by the trial Court. Section 51 of the Penal Code provides that:-
“51. Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”
Now, from the wordings of Section 51 of the Penal Code, insanity is a complete defence to a criminal charge if successfully proved. However, the insanity or unsoundness of the mind must have deprived the accused person the capacity to know the nature of the act or that he is doing what is either wrong or contrary to law.
By raising the defence of insanity, the Appellant has impliedly admitted that he committed the offence charged but is not responsible for his actions by reason of insanity. In law, there is a rebuttal presumption that everyone is presumed sane and of sound mind until the contrary is proved. Where the defence of an accused lies in insanity, the onus is on him to plead same and produce credible evidence of insanity at the time of the commission of the offence. This can be done by showing:-
i. Evidence of past history of the accused;
ii. Evidence as to his conduct immediately preceding the commission of the offence;
iii. Evidence from prison warders who had custody of the accused and looked after him during the trial;
iv. Evidence of medial officers or psychiatrists who examined the accused;
v. Evidence of relatives about the general behavior of the accused and the reputation he enjoyed of sanity or insanity in the neighbourhood; and
vi. Evidence tending to show that insanity runs in the family history of the accused.
See ALAPA VS. THE STATE (2016) LPELR 413220, DANBABA VS. THE STATE(2018) LPELR 43841 and ABATCHA VS. THE STATE (2018) LPELR 46358.

The Appellant testified as DW1 and denied the charge against him. He made no mention of his mental condition all through his evidence in chief. It was only under cross-examination he stated that he had mental illness before his incarceration and he had no medical report to show for that. DW2 is Dr. Frances Sunday who is a medical doctor. He testified that his first contact with the accused was on 25/05/2015 when the accused was taken to the psychiatric Hospital together with his wife and a prison warden. His interactions with the wife revealed that the Appellant had a history of fit and convulsion, odd behaviors and inflicting injuries on himself. The prison warden told DW2 that the Appellant eats his defacation and was aggressive to other inmates. He was diagnosed with major depression and psychotic symptom, wherein he was placed on medication.

DW3 was Aminu Aliyu, the Appellant’s full brother. He testified that before the arrest of the Appellant he had a mental disorder. It occurred from time to time. And whenever he is in his fit he could injure a person.

From the evidence of DW2 and DW3, the trial Court rightly observed that the evidence show that the Appellant is mentally insane, which happens from time to time which condition deteriorated after his incarceration resulting in his having major depression with psychotic symptoms. 

Notwithstanding these findings, the trial Court proceeded to hold that the Appellant needed to show that he was afflicted by insanity at the time of commission of the offence. That is the correct position of the law, for it is not enough for an accused to show that he is insane, evidence must be adduced to show that at the time of the commission of the offence by reason of unsoundness of mind, the Appellant is incapable of knowing the nature of this act or that he is doing what is either wrong or contrary to law. See SANUSI VS. THE STATE (1984) 10 SC 166, IHONRE VS. THE STATE (1987) 4 NWLR (PT. 67) 778, OKON VS. THE STATE (2014) LPELR 22446 and DADA VS. THE STATE 2018) LPELR 46150.

The trial Court considered the evidence of the defence and concluded thus:-
“Now it is in evidence that at the material time the accused was perfectly healthy and not psychotic or depressed. This is established by the following facts:
1. The accused who was living with his wife and children was at home watching a movie with PW1. This fact is established by Exhibit A which is the statement of the accused.
2. When the accused was to be arrested, he was ready to go to his working place at S. Agro Co. so he was perfectly healthy. This evidence was established by the evidence of the accused himself in his evidence in chief where he stated “I was on my house ready as I was going out for work.”
3. The accused was also immediately after arrested was at both Hisbah and Police station without sign of psychotic symptom. This is established by the evidenced of the accused himself and that of PW2.”

The above findings cannot be faulted as they are all borne out of the evidence adduced. Further, it can be added that sifting through the evidence of the Appellant at his trial he was able to know his arrestors, the number of days he spent in the custody of Hisba and when he was taken to the C.I.D. office. From Exhibit A, the Appellant admitted closing the prosecutrix’s mouth when she wanted to shout and he threatened her. The clinical diagnosis of the Appellant might have well shown a kind of mental disorder on the Appellant, but definitely, the Appellant was not suffering from that disorder at the time of the commission of the offence. At least, the law did not just place the burden of proving insanity on the Appellant, it goes on to place the burden of proving that he is insane at the time of the commission of the offence as well. This the Appellant woefully failed to prove. What more, the evidence adduced has revealed that he was perfectly sane at the time of the commission of the offence. The position of the trial Court that the defence of insanity is not available to the Appellant is unassailable. The learned trial judge has painstakingly and commendably considered the evidence adduced and the law on insanity. I find no reason to alter the position of the trial Court.

Now, having considered all the germane points raised in this appeal, it can be seen that from the available evidence before the trial Court, it is established beyond reasonable doubt that the Appellant is guilty as charged. In the circumstances, this lone issue is resolved against the Appellant and in favour of the Respondent. This appeal is unmeritorious and it is accordingly dismissed. The conviction and sentence on the Appellant are hereby affirmed by me.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment, in this appeal, just delivered by my learned brother, A.M. Lamido JCA. I am at one with His Lordship’s line of reasoning and conclusion that the appeal is totally devoid of merit. I also dismiss the appeal accordingly and affirm the decision of the trial Court which convicted the Appellant for the offence of rape and sentenced him to fourteen years imprisonment.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother ABUBAKAR MU’AZU LAMIDO, JCA. I am in agreement with the issues considered and resolved by His Lordship. I have nothing more to add. I abide by the conclusions reached therein.

Appearances:

A.O. ODUM, ESQ. For Appellant(s)

MUSA ABDULLAHI LAWAN, ESQ. (THE HON. ATTORNEY GENERAL/COMMISSIONER FOR JUSTICE OF KANO STATE), WITH HIM, AISHA MAHMOUD (MRS.) (D.P.P.), H.H. SULEIMAN, ESQ. (A.D.C.L.) AND WADA A. WADA, ESQ. (P.S.C.) For Respondent(s)