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BALA v. STATE (2022)

BALA v. STATE

(2022)LCN/16042(CA)

In the Court of Appeal

(KANO JUDICIAL DIVISION)

On Friday, May 06, 2022

CA/KN/260C/2020

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

ASHIRU BALA APPELANT(S)

And

KANO STATE RESPONDENT(S)

 

RATIO

ON WHETHER LEAVE TO APPEAL IS NEEDED TO APPEAL INTERLOCUTORY RULING

Appellant was correct to say that he did not need leave to appeal the interlocutory ruling admitting the statement of Appellant as exhibit, because the order of Court admitting the statement of Appellant on 15/6/2017, remained a live Issue in this appeal, being part of the complaint of Appellant in the main appeal, since the said documents, admitted as Exhibits A1 and A2 (as the Statement of Appellant) became relevant and applicable in the final judgment of the Court, convicting the Appellant. The said exhibits and admission of same cannot, therefore, be separated from the final decision of the trial Court, made on 15/11/2019, which Appellant appealed against. See the case of Onodavwerho Vs FRN (2019) LPELR-47185 CA, where my Lord Ogunwumiju JCA (as she then was) said:
“It is settled, that a complaint against the trial Court in respect of a decision made by the trial Court on admissibility of a documentary or oral evidence, during the course of a trial is part of the main trial and not an interlocutory decision, unless a special case has been made in respect of the Issue…Thus, a party appealing against a judgment of the trial Court can file as one of the grounds of appeal a complaint alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected. The wrongful admission or rejection of evidence is fundamental, and it can lead to miscarriage of justice…”
See also Onwe Vs Oke (2001) 3 NWLR (Pt.700)406; Owena Bank Nig. Plc Vs N.S.E LTD (1997) 8 NWLR (Pt.515).
In the case of Itumo Onwe & Ors Vs Eze Nwaogbuinya & Ors (2001) LPELR-2709 (SC), it was held:
“I would now consider Onehi Okobia v. Mamodu Ajanya and Anor (1998) 6 NWLR (Pt. 554) 348 referred to us by the learned counsel for the appellants to support his contention that, leave of the Court is not required to appeal against an interlocutory decision when appealing against the final judgment of the Court. In that case, the 1st and 2nd respondents appealed against the decision of the trial Court to the Court of Appeal. During the pendency of the appeal at the Court of Appeal, which challenged the ruling of the trial Court in the course of the trial rejecting Exhibits G and M in evidence. The appellant appealed to this Court against the decision of the Court of Appeal. Some of his grounds of appeal complained that the Court of Appeal was wrong to have entertained the additional grounds of appeal filed by the respondents before it in that the grounds of appeal were incompetent. The appellant also contended that as the ruling of the trial Judge on the admissibility of Exhibits G and M were made in the course of trial, the respondents required extension of time to appeal against them. In the determination of this issue raised by the appellant in Court, Mohammed JSC, who prepared the leading judgment, reviewed some of the decisions of this Court that are germane to the question under consideration. These included Ogigie v. Obiyan (supra) and Owena Bank (Nigeria) Plc. v. N.S.E. Ltd. (1997) 8 NWLR (Pt. 515) 1. And as the ruling which was under consideration in the appeal was concerned with the wrongful rejection of evidence, viz. Exhibits G and M, my noble and learned brother, Mohammed JSC, after referring to the provisions of Section 227 of the Evidence Act, which reads:- “(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the Court of Appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted. (2) The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it shall appeal to the Court of Appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same. (3) In this Section the term “decision” includes a judgment, order, finding or verdict.” Then held, inter alia, thus:” A decision made by the trial Court on wrongful admission of evidence or wrongful rejection of evidence is part of the main trial and not an interlocutory decision unless a special case has been made in respect of the issue. Thus a party wishing to appeal against the judgment of the trial Court can file one of the grounds of appeal alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected. Both are fundamental as the error might occasion a miscarriage of justice.” I am in entire agreement with the above statement of my learned brother, Mohammed JSC.” Per EJIWUNMI, JSC (Underlining mine). I therefore rule that the Appellant did not require any leave to argue any ground of appeal arising from the admission of Exhibits A1-A2, made in the interlocutory ruling of 15/6/2017, as that was part of the issues thrown up in the main appeal, from the final judgment of 15/11/2019. – PER ITA GEORGE MBABA, J.C.A. 

CONSEQUENCES OF DENIAL OF MAKING A CONFESSIONAL STATEMENT

The law is trite, that upon denying making the confessional statement (Exhibit A1-A2), the Appellant lacked the vires to contest the facts and content of the document, as to whether, or not it was properly recorded, signed and/or admitted. Having denied making the statement, Appellant had distanced  himself from it (the document) and it should not therefore bother him what the Court does with it.
But the Court is competent to look at it (the statement) and admit it, if relevant to the case, and where the Court finds cause to believe that Appellant made the statement, then that would defeat the entire pretentious defence put up by the Appellant in the case, in my opinion. -PER ITA GEORGE MBABA, J.C.A. 

MERE DENIAL OF MAKING OR SIGNING A CONFESSIONAL STATEMENT BY ACCUSED PERSONS IS NOT SUFFICIENT GROUND TO REJECT ITS ADMISSIBILITY IN EVIDENCE

In the recent case of YAMUSA Vs THE STATE (2022) LPELR–57094 (CA), delivered on 18/3/2022, we said:
“One who asserts that he did not make any confessional statement to the Police is therefore not contesting the voluntariness of the statement produced by the Prosecution as made by him, and so there cannot be any call for trial-within-trial on the status or voluntariness of the statement.”
See also Akwuobi Vs The State (2016) LPELR-41389 (SC), where it was held:
“In this instant appeal, there is a confessional statement made by the appellant voluntarily which was tendered and admitted in evidence at the trial and marked Exhibit 4. Although the appellant denied making such statement or signing same, the trial Court rightfully in my view, did not bother to conduct a trial within trial since the appellant did not say that he made it under duress, torture, promise or any influence. This is because mere denial of making or signing a confessional statement by accused persons is not sufficient ground on which to reject its admissibility in evidence when properly tendered. See Okwesi vs. State (1995) NWLR 119; Ezenge vs. The State (1999) 14 NWLR (pt.637)1. Also where an accused person merely disputes the correctness of a confessional statement or states that he made no statement at all, it is not necessary to conduct a trial within trial. See Madejemesi v The State (2001) 5 SCNJ 59.” Per SANUSI, JSC

ON THE DIFFERENCE BETWEEN DENIAL OF MAKING A CONFESSIONAL STATEMENT AND INVOLUNTARINESS

See also Ofordike Vs The State (2019) LPELR-46411(SC), where my Lord Okoro JSC said:
“The learned counsel for the Respondent made it clear that denial of making a confessional statement is not synonymous with alleging that it was involuntarily made which I agree totally. This much was held by the Court below in its judgment as found on page 139 of the record as follows:- “In this appeal under consideration, it is clear on record that the appellant did not through his counsel and during the trial, particularly at the point when the prosecution applied to tender the said confessional statement object to its admissibility on the grounds that it was involuntarily made or obtained from him with coercion or as a result of threat to his life or promise of any advantage. In view of the foregoing, a trial within trial is unnecessary and the trial Court was right in its judgment.” I agree entirely with the position taken by the Court below because, as I have stated above, a trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person or his counsel. Where an accused person admits making the statement but contends or asserts that he did not make it voluntarily, but under duress or some other alleged influence, then a trial with trial will be conducted. Where however as in this case, the objection to the admissibility in accused confessional statement is based on the grounds that it was not read over to him and that he did not make it, the statement is treated as a voluntary statement and is admissible without the Court holding a trial within trial which is necessary only where the issue of involuntariness is raised. See Onyenye v The State (2012) 15 NWLR (pt 1324) 586 at 619 paragraphs A-C where this Court set out the circumstances and effect of confessional statements obtained by duress and those merely retracted as follows:- 1. Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks or undue influence or any non-recognizable legal ways, there would be need for a trial within trial. 2. Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable…”
As stated earlier in the case of Yamusa Vs The State (supra):
“Where an accused person denies making a confessional statement at all to the Police, that amounts to a blind plunge into the dark, as is an ill-advised self-delusion, as he cannot therefore contest the content of the Statement Produced and Credited to him. And where the said statement contains the personal profile of the accused person, which could only (sic) have been gotten from him, and/or one in possession of such details, the denial of making the Statement becomes, silly! The law is trite that even where a Confessional Statement is denied or retracted at the trial, the Court can still use it to found conviction where the same is plausible…”PER ITA GEORGE MBABA, J.C.A. 

ON WHEN A PERSON RETRACTS HIS EARLIER CONFESSIONAL STATEMENT AT TRIAL

See also GURUMA Vs The State: CA/K/544B/C/2019 of 18/3/2022 and Okon Vs The State (2014) LPELR- 24018 CA, where this Court held:
“Of course, even where the accused person retracts his earlier confessional statement at the trial, that does not prevent the Court from using it to convict the Accused person, if the Court finds the statement relevant and credible, after passing it through the acceptability test, as stated in the case of Haruna vs A.G. Fed. (2012) 2009 LRCN 70: “A Court can convict on the retracted confessional statement of an accused person. But before this is properly done, the trial Judge should evaluate the confession and the testimony of the accused person and all the evidence available. These entail the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the Judge asking himself the following questions: a. Is there anything outside the confession to show it is true? b. Is it corroborated? c. Are the relevant statements made in it, of facts true as far as they can be tested? d. Did the accused person have the opportunity of committing the offence? e. Is the confession possible? f. Is the confession consistent with the other facts which have been ascertained and have been proved?” In the case of Salahudeen vs The State (2013) LPELR-21851 (CA) this Court reiterated: “It has been stated, several times, that a confessional statement is the best and strongest evidence of guilt, as by it the Accused person surrenders himself and closes every door of defence against himself.” See Yusuf vs The State (2012) LPELR-7878 (CA); Akpa vs State (2008) ALL FWLR (pt. 420) 644.” -PER ITA GEORGE MBABA, J.C.A. 

ON WHETHER A MINOR (UNDER 14YEARS) CAN GIVE CONSENT TO ENGAGE IN SEXUAL ACTIVITIES

I had cause to scream in the case of Zakari Vs Kano State (Supra) when I said:
“I cannot understand what these sex predators see or seek in frail, fragile bodies of little girls, to subject them to all the stress, hazard, mental, emotional and physical tortures, which leave behind wounds and scars in the victims, destroying their self-worth and pride as girls.
In the recent case of Mato Vs The State (supra), I had course to scream as follows:
“In this case, at hand, the victim is a 10 year old girl, an unfortunate child on the street, hawking food, to earn a living (or sent out to hawk) at such tender age. By law, she cannot even give consent to engage in sexual activities, being under the age of 14 and so was incapable of consenting to any act of sexual intercourse, with anyone. See Section 282 of the Penal Code. In the case of Natsaha Vs State (2017) LPELR-42359 (SC), the Supreme Court held: “It is important to note that under the Penal Code, a child who is under the age of 14 years is incapable of giving consent. See Section 37(c) and 282 (1) (e) of the Code. See also Shuaibu Isa Vs Kano State (2016) LPELR-40011 SC. Therefore, once it is proved that the accused person had sexual intercourse or unlawful carnal knowledge of a girl under the age of 14 years, he is guilty of rape.” Per Kereke-Ekun, JSC.”
Also in the case of Ibrahim Yusuf Vs The State (2022) LPELR–56760 (CA), delivered on 28/1/2022, I said:
“I think what the Appellant did to these little children of 4 to 6 years old in the video centre, violating them and leaving them with such cruel and bruised psyche, which tends to see a wicked monster of a male gender, should jolt every sane mind.”
I hereby dismiss the appeal and affirm the decision of the lower Court.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Kano State High Court in Charge No. K/188C/2016, delivered on the 15th November, 2019, by Hon. Justice Aisha R.D. Muhammad, wherein the learned trial Judge convicted Appellant for offence of rape, under Section 283 of the Penal Code and sentenced him to imprisonment for 14 years.

At the trial, Appellant was charged as follows:
“That you Ashiru Bala male, adult of Dorayi Quarters, Kano Municipal, on or about the 23rd January, 2015, at Dorayi Quarters, within Kano Judicial Division, committed the offence of rape by doing an act to wit: lured and had sexual intercourse with one Fatima Ahmad, a girl of 10 years old (sic) in your room, situate at the above mentioned address and thereby committed an offence punishable under Section 283 of the Panel Code Law of Kano State (as amended).

Appellant (as accused person) had pleaded NOT GUILTY to the Charge, and after the hearing and consideration of the evidence and addresses of Counsel, the trial Court had said:
“With all the ingredients of the offence proved, the accused testified in this defence. He however did not put forward any defence as evidence before the Court. His evidence was a total denial of knowing what he was accused of. He only gave account of his arrest and detention at both Hisbah Office, and the State CID and then being taken to prison and Magistrate Court and finally standing trial before this Court. What led to his arrest was not stated by the accused in his evidence (sic) was only a denial nothing more, nothing less. However under, cross-examination, the accused admitted the following facts:
1) The victim Pw3 lives in his ward and he is their neighbor;
2) That the Pw3 was sent to his house to buy omo on the 22/01/2015;
3) That one Hajiyarmu lives in his house;
4) He gave his Statement at Hisbah Office and admitted that whatever he said, there, was recorded, at Hisbah by its officials i.e. Exhibit A1, A (sic).
All these are facts which have been established by the evidence of Pw1, Pw3 and Exhibits A1 and A (sic). I therefore find the Accused’s denial of the commission of the offence is an afterthought, having admitted the contents of Exhibits A1 & A2. The accused therefore woefully failed to put any defence to the charge against him. I therefore find the prosecution has successfully proved the offence of rape, contrary to Section 283 of the Penal Code, as amended.’’ (See pages 107 to 108 of the Records & Appeal)

That is the decision Appellant appealed against, as per the Amended Notice of Appeal, filed on 3/2/2021 by Appellant and deemed duly filed on 29/3/2021, with fourteen (14) grounds of appeal. Appellant filed his Brief of Arguments on 3/2/2021, which was also deemed duly filed on 29/3/2021. He distilled two (2) Issues for determination of the appeal, as follows:
1) Whether or not the trial Court was right to have relied on Exhibit A1-A2 as confessional statement and to have attached probative value to this Exhibit while holding that Exhibit A recorded by the Police is an afterthought having regard to the statutory duty of the Police to investigate crime? (Grounds 1, 2, 4, 10 and 11)
2) Having regards to the material contradictions in the evidence led by the prosecution in proof of the charge, whether or not, the prosecution has proved the essential ingredients of the offence beyond reasonable doubt, to have warranted the conviction of the Appellant? (Grounds 3, 5, 6, 7, 8, 9, 12, 13 and 14)

The Respondent filed its Brief on 26/11/2021, with the leave of this Court, granted on 11/11/2021, and distilled a lone Issue for the determination of the appeal, as follows:
Whether the learned trial Judge rightfully found that the Prosecution has proved its case against the Appellant beyond reasonable doubt and thereby properly convicted and sentenced the Appellant/Accused, having regard to the circumstances of this case?
Appellant filed a Reply Brief on 8/2/2022.

Arguing the appeal on 14/2/2022, Appellant’s Counsel, A.S. Abdulkadir Esq, on Issue 1, said that the trial Court ought not to have attached any probative value to Exhibit A1-A2; that the Hisbah (which apprehended the Appellant) did not have power to investigate crime, as their statutory duty was to assist the Police, and ought not be elevated to the point of reducing Police Investigation to the background; he said that the contents of the Statements of the Appellant did not show admission of the offence charged, and the recorder of the statement was not called, and there is nothing on the record, to show that appropriate cautionary words were administered, to elicit the statement; he also said that Exhibit A2 was not signed.

Counsel said that PW2 was not the recorder of Exhibits A1-A2, and that failure to call the recorder to testify, was fatal to the case of the Prosecution. Counsel said that, whereas the Pw2 had stated that he was the recorder of the statement of Appellant (admitted as Exhibit), that on the face of the document, it was recorded “by Abubakar Ibrahim Maikaiwa”, and not Auwal Abubakar, who testified as Pw2 and whose signature appeared on the Exhibit A1-A2.

Counsel said that in Exhibit A1 (the Hausa Version) Pw2 signed the column meant for recorder, as c/o signatory while Abubakar I. Maikalwa (sic) recorded the statement; he said that there is nothing in Exhibit A1 to show the person who interpreted the content of the Exhibit to the Appellant. Counsel asserted that the said Abubakar I. Maikalwa (sic) who allegedly recorded the statement ought to have been called to give evidence; that PW2’s role in the recording of the exhibit was unknown, apart from signing as c/o (sic) signatory. He relied on Bello Vs C.O.P (Supra); and said that the fact that pw2 said he was part of the investigation team was not sufficient to discard the necessity of the recorder to give evidence. He relied on Adamu Vs. State (2019) 8 NWLR (Pt. 1675) 478. He said that failure to call the Recorder, rendered the Exhibit A1-A2 hear-say, and the Court ought not to have attached any probative value to it. He relied on Ifaramoye Vs State (2017)8 NWLR (Pt. 1568) 457; FRN VS Usman (Supra); Nwaeze vs the State (1996) 2 NWLR (Pt 42) 1, Queen vs Zakwakwa (1960) Vol.1 NSCC 8 at 9.

Counsel also said that failure of the Appellant to sign Exhibit A2 was enough to deny its probative value; that the law is trite, that an unsigned extra judicial statement of an accused person does not worth the paper on which it is written. He relied on Ogudo Vs State (2011) 1 NWLR (Pt 1278) 1; Obi Vs A.G. Imo State (2016) 3 NWLR (Pt.1500) 425. Counsel however, conceded that “It is only the signature of the translator that is relevant in a translated version of confessional statement and not that of the accused person’’, relying on the Supreme Court case of State Vs Saidu (2019) 10 NWLR (Pt.16 80)308 at 321. But he said that Exhibit A2 cannot enjoy that exception, because there was nothing to show that it was a translated version of Exhibit A1. Moreover, Counsel said because PW2 said, that Appellant signed both copies (Hausa and English versions), he (PW2) must produce the signed copies.

Counsel further said that the Exhibits A1-A2 were not taken under caution; that a confessional statement must contain the usual words of caution; that PW2 had told the Court that he asked Appellant to fear Allah and tell the truth; Counsel said that is not the prescribed form of words of caution, that failure to give words of caution is fatal. He relied on Etisi Vs State (2018) All FWLR (Pt.920) 33.

​Counsel also argued that the Power of Hisbah Board, (which recorded Exhibits A1-A2) under Section 7(4) of the Hisbah Law of Kano State 2003, does not empower Hisbah to investigate crime. He said that from the facts and circumstances of this case and the evidence of PW2, what Hisbah Board did, amounted to investigation of criminal allegation, as PW2 had said that the matter was transferred to the Police for further investigation! He added that the trial Court entertained the findings in an investigation carried out by Hisbah Board, when the Court said:
“The Confession is possible as the accused was taken to Hisbah Board which is an Institution based on Islamic law, which admonishes and guides people by instituting moral values on the society.’’ (Page 93 f the Records).

​The Counsel said Hisbah Board outstepped its bounds or lane, when it usurped the function of the Police; that the trial Court was therefore wrong to place reliance on the Exhibits A1-A2, tendered by Hisbah Board, during investigation, with the glaring abuses of the Appellants’ fundamental rights by the Hisbah Board in detaining him for 3 days. Counsel further said that the trial Court failed to place reliance on Exhibit A, tendered by the PW4, (Investigating Police Officer) and that showed it solely relied on the investigation conducted by the Hisbah Board; therefore, he said Hisbah Board was not just assisting the Police in this case, as would be expected, but was taking a pre-eminent role in the investigation of the case and prosecution of Appellant. He added that Exhibit A1-A2 was therefore not confessional statement, not being direct, positive and unequivocal statement to qualify as confession.

Counsel further said that the entire evidence, led by PW1, PW2, PW3 and Exhibit A1-A2, was in respect of offence committed on 22nd January, 2015, whereas the charge was about offence committed on or about 23rd January 2015! Also, Counsel said the charge alleged that Appellant lured Pw3 into his room and had sexual intercourse with her, whereas evidence by PW3 and Exhibit A1-A2 showed that the event took place in the room of Hajiyanmu!

He relied on the case of Ali Vs State (2019) 14 NWLR (Pt 1692) 314, to say that an interpreter is required to tell, the Court the questions he asked accused and the responses he obtained, to establish the truth of the statement. He also cited the case of Olanipekun Vs State (2016) 13 NWLR (Pt. 1528) 100 and FRN Vs Usman (Supra); Olalekan Vs State (2001) 18 NWLR (Pt. 746) 793.

Counsel said the PW2, who recorded the statement in Exhibits A1 and A2, had told the Court:
“Then we asked him to fear Allah and tell the truth…then he said to us that he had sexual intercourse with the girl twice at different times, when she was sent to buy things, inside their house.’’

But that in the alleged confessional Statement (Exhibit 2) Counsel said, PW2 did not record exactly what Appellant had told him; that the page 73, lines 10-15 of the Exhibit A2, reads:
“…. Then I put my middle finger in her vagina she was standing, then she lay down, I repeated and romanced her, which this was the second time and last yesterday I inserted my penis into her virginal (sic).”

Counsel said there was nowhere in Exhibit A2 that Appellant said he had sexual intercourse with PW3, twice at different times; he said that Exhibit A1-A2 cannot be a correct reproduction of what Appellant said.

​Counsel said that the statement (Exhibit A2) was made on 24/1/2015 and so the phrase “last yesterday, I inserted my penis into her virginal (sic)” can only mean 23/1/2015; that if 23/1/2015 was taken as to when Appellant inserted his penis into Pw3’s vagina, it follows therefore that Appellant would not have committed the rape as at the time he was accused of the offence, as evidence of PW1, PW2 and PW3, as well as Exhibits A1-A2, were to the effect that Appellant raped Pw3 on 22/1/2015! (see page 11 of the Appellant’s Brief). He added that a confession before the crime is committed is not a confession and relied on FRN Vs Barminas (2017) All FWLR (Pt. 882) 1256.

Counsel also referred us to what he called alteration on the face of Exhibit A2, and citing Section 160 (1) of the Evidence Act, said that, without evidence that the alteration was done at the time of the statement was recorded, that would affect the probative value to be attached to the Exhibit.

Finally, counsel said Exhibits A1-A2 were not admissible and urged us to expunge them, relying on State Vs Salawu (supra); Ifaramoye Vs Ogbeh & Ors (2008) FWLR (Pt.169) 1245; Nwaeze Vs The state (1996) 2 NWLR (Pt. 428) 1.

On issue 2, Counsel said, having regard to the material contradiction in the evidence led in the charge, whether the ingredients of the charge had been proved beyond reasonable doubt, Counsel answered in the negative. He said that there were material contradictions in the evidence of the Prosecution which the trial Court did not consider.

​Counsel also said that the trial Court did not test the veracity or otherwise of the confessional statement; that the Court needed to seek other evidence, be it slight or circumstantial, which made it probable that the confession was true. He relied on Akpan Vs State (1992) 6 NWLR (pt248) 439 at 460; ODAN Vs FRN (2002) 13 WRN 31 CA; Onochie Vs The Republic 1996 NMLR 307. He argued that, where the accused statement is challenged, as in the case, on the ground that Appellant did not make it, that as a matter of practice, the Court must look for, and find some corroboration or independent evidence, outside the confession, which makes fact of the making of the confession by the accused person, credible and reliable. He relied on the State Vs Yahaya (2018) 13 NWLR (Pt. 1609) 397; Alpha Vs State (2008) ALLFWLR 14 NWLA (Pt. 1640) 456 (SC). Fabiyi Vs State (2015) LPELR-24834; and Adebayo Vs State (2019) 5sc (Pt.1) 1 at 20-23.

​Counsel said that the confessional statement (Exhibit A1-A2), which the trial Court relied on, together with the evidence of PW1, as corroborating the evidence of PW3, were not credible, considering the contradiction, inconsistency and conflicts, on material evidence led by the prosecution, which significantly created doubt in the entire case of prosecution; he said that such doubt should have been resolved for the Appellant. He added that the evidence of PW1 was largely based on suspicion and hear-say; that PW1 had said “when I examined the vagina of the girl, it was reddish and swollen and her pant was full of sperm”, but yet the PW1 still expressed doubt as to what happened to PW3; that she further said: “…I didn’t conclude that she was raped but I wanted to go to the hospital to tell us what actually happened to the girl.” Counsel said the evidence of PW1 (mother of PW3) and of PW3 (victim) were conflicting.

Counsel argued that the absence of medical evidence and testimony of the medical officer, who attended to PW3, was fatal to the case of prosecution and relied on Iko Vs State (2001) 14 NWLR (Pt. 732) 221; he said that the trial Court was wrong to say that the absence of medical report was of no moment; that the Court should have invoked the presumption, under Section 167 (d) of the Evidence Act, 2011 against the prosecution.

​Counsel also said that the evidence of penetration, raised doubt; that the ingredients of rape, under Section 283 of the Penal Code, were not established. He urged us to resolve the issue for the Appellant, and to allow the appeal.

Responding, Counsel for the Respondent, Aisha Mahmoud (Mrs) D.P.P. Kano State, arguing their lone Issue for determination, said that the Prosecution had proved the commission of the offence against Appellant, beyond reasonable doubt; that the evidence was overwhelming against the Appellant. She admitted that the burden was on the Prosecution to prove the charge beyond reasonable doubt, relying on Section 139 of the Evidence Act 2011, and the case of Yakubu Vs the State (2014) 35 SCM 254. She also relied on Posu Vs The State (2011) LPELR-1969 (SC) and Alufohai Vs State (2014) LPELR 24215 SC, on elements of proof, and ways of establishing commission of offence:-
1) By Confessional Statement;
2) By Circumstantial evidence and;
3) By an eye witness account.

She argued that confessional statement, alone, is enough to establish conviction, relying on Galadima Vs The State (2012) LPELR-15530(SC); Adeyemi Vs The State (2015) All FWLR (Pt.790) 1201; Okpako Vs The State (2018) LPELR-505/2012 SC.

Counsel also founded on the case of Musa Vs State (2012) 3 NWLR (Pt. 1286), where it was stated that:
“…accused person who wishes to impeach his earlier statement, has an onerous duty to establish that his earlier confessional statement cannot be true or correct, showing any of the following instances.
That he was not correctly recorded; or that he, in fact, did not make the statement; that he was unsettled in mind at the time he made the statement; or that he was induced to make the statement.” Per Orji- Abadua JCA.

Counsel said that in this case, Appellant had denied making any confessional statement, but that the trial Court’s finding was as follows:
“The fact that the accused denied making the statement does not render the statement inadmissible. And Hisbah Board is an agency of the government, which is established for the well-being of the society and prevention of crime, by social interaction with all persons and prevention of chaos in the society. And by its law, Hisbah Board, 2003 and the provisions of Section 7, it can render assistance to the Police in the detection of crime, investigation and arrest. So, the argument of the Counsel, that Hisbah Officer is not a Police Officer to take the statement of the accused is misconceived, as such discountenanced with. (Page 16 of the Records of Appeal).

Counsel, therefore, said that the admission of the Confessional Statement (Exhibit A1-A2), and attaching of probative value on same, by the trial Court, was proper, and that the Confessional Statement was enough to establish the guilt of the Appellant.

Counsel said that the trial Court had a duty to, and did find corroborative evidence to the Confessional Statement, in the evidence of PW1 and PW3. She relied on the case of Olasehinde Vs The State (2018) LPELR (Sic) SC; Iko Vs State (2001) 14 NWLR (Pt.732); Ezigbo Vs The State (2012) LPELR-35/2010; Isa Vs The State (2016) LPELR-Sc/35/2013 Musa Vs State (Supra).

Counsel submitted that, the ingredients of the offence of rape had been established, as per Section 282(1) of the Penal Code and the case of Iko Vs The State (supra), namely:
1) That the accused had sexual intercourse with the woman in question;
2) The act was done in circumstance falling under any of the five paragraphs in Section 282(1) of the Penal Code;
3) That the woman was not the wife of the accused, or if she was, she had not attained puberty;
4) That there was penetration.

Counsel referred us to the evidence of the PW1, PW2 and PW3, on the establishment of the above ingredients of the offence. She also relied on the case of Iko Vs State (supra) and Posu Vs State (supra), on establishment of penetration. She also repeated the evidence of PW3 (victim) on page 19 of the Records of Appeal, where PW3 said:
“The Accused dragged me into the room of one Hajiyanmu, Hajiyanmu is the senior sister of the accused. Then he laid me down on the mattress. Then he removed my pant. Then he put his penis into my vagina. Then something started oozing out, like pap, from his penis and then I was crying. Then after he finished, he gave me N10 and I came back home. Then told my mother. Then she told me to remove my pant for her to see…”

​Counsel said that the evidence was not shaken, under cross-examination, and was rather consolidated by the confession of Appellant in Exhibit A1-A2; she said that despite an attempt to deny the confessional statement, Appellant had said under cross-examination:
“Yes, I gave my Statement at Hisbah office. Yes, I agree that whatever I said was recorded at Hisbah by official in Exhibit A1 and A2.” (See Page 30 of the Records of Appeal).

Counsel said the trial Court was right to hold that the confessional statement was direct, positive and unequivocal despite, attempt to deny making it; he said that, even where a confessional statement was/is retracted the Court can still rely on it to convict, if the Court finds it credible, positive and satisfactory, See Section 139 of the Evidence Act, 2011.

Counsel also argued that the interlocutory ruling of the trial Court, made on page 16 of the Records (on 15/6/2017), admitting the Exhibits A1-A2, as statements of Appellant had not been appealed against, within 14 days of the ruling, and so Appellant cannot canvass arguments, again, in this appeal on the admissibility and relevance of the Exhibits, especially as Appellant did not seek and obtain the leave of this Court to appeal against that ruling. He relied on Onwe & Ors Nwaogbuinya (2001) LPELR-2709 (SC). She urged us to resolve the issue against the Appellant and to dismiss the appeal.

RESOLUTION OF ISSUES
Appellant had filed a Reply Brief, arguing that he did not have to seek leave to appeal against the interlocutory ruling admitting the Statement of Appellant on 15/6/2017, before raising ground of appeal and Issue against that ruling in the main appeal, as all the grounds of appeal arose from the final judgment.

I shall therefore consider this appeal on the two issues distilled by the Appellant and shall take them, together.

Was the trial Judge right to attach probative value to the confessional statement of the Appellant (Exhibits A1-A2) and to hold that the same corroborated the evidence of PW3, (Prosecutrix) to convict that Appellant. And was there any material contradiction in the evidence of the Prosecution, to defeat the conviction of the Appellant?

​The facts of this case show that, the Appellant, about 22 years old (at the time of commission of the offence), had sexual intercourse with (or unlawful carnal knowledge) of the PW3, a minor of only 10 years of age, taking advantage of her, when she was sent to buy Omo (detergent) from the store which the Appellant operated. The charge alleged that the offence took place on or about 22nd January, 2015. He lured the little girl to bed, undressed her, fondled her and had penetrative sexual intercourse with her. The girl cried and he gave her N10.00. She reported this rape to her mother (PW1) who immediately inspected her and found her vagina reddish and swollen and sperm on her pant. She (PW3) was taken to the Hospital, upon report of the rape to Hisbah and later to the Police. Appellant made statement at the Hisbah Office, admitting to committing the offence and the same was tendered as Exhibit A1(Hausa Version) and Exhibit A2 (the English translation). The trial Court believed the Prosecution and found corroboration in the story of the PW3 from the confessional Statement, and the findings of Pw1, on inspecting the PW3.

Appellant’s main argument in this appeal appears to center around the value placed by the trial Court on the confessional statement (Exhibits A1-A2), saying the same was not admissible; that he (Appellant) did not make the statement; that the Hisbah officer who recorded the Statement or the Hisbah Board had no power to investigate the crime, not being the Police; that Hisbah Board only has Statutory duty to assist the Police. Counsel also alleged that Pw2 was not the person that signed Exhibit A2, as the Recorder, and that the Prosecution failed to call the actual Recorder as a witness and that that amounted to withholding of evidence. He sought the invoking of Section 167(d) of the Evidence Act, 2011, against the Prosecution; saying that if the Recorder had been produced, the evidence from same would have been against the Prosecution!

​Counsel, however, admitted that PW2 signed the document as the recorder; that Abubakar Ibrahim Maikalwa, was only in the team that investigated the crime. Counsel also argued that Appellant did not sign the Exhibit A2 (English version/interpretation), but acknowledged that he (Appellant) signed the Hausa Version (Exhibit A1). Thus, he (Counsel) said, that being unsigned by Appellant, the Exhibit A2 was worthless; he relied on legal authorities to say that an unsigned document, is not even worth the paper on which it is written! Ogudo Vs State (2011) I NWLR (Pt.1278) I, Obi Vs A.G. Imo State (2016) 3 NWLR (Pt.1500) 425.

I think Appellant and his Counsel were confused, and/or tried to confuse this Court. While Appellant denied making the Statement (Exhibit A1) in Hausa, which was translated into English (in Exhibit A2), his Counsel strenuously advanced arguments to contest the competence and probative value of the document – challenging whether Hisbah Board had power to investigate the crime and record the statement and whether Appellant signed the English version of the statement! All that arguments were unnecessary, if Appellant did not make the statement!

​The law is trite, that upon denying making the confessional statement (Exhibit A1-A2), the Appellant lacked the vires to contest the facts and content of the document, as to whether, or not it was properly recorded, signed and/or admitted. Having denied making the statement, Appellant had distanced himself from it (the document) and it should not therefore bother him what the Court does with it.
But the Court is competent to look at it (the statement) and admit it, if relevant to the case, and where the Court finds cause to believe that Appellant made the statement, then that would defeat the entire pretentious defence put up by the Appellant in the case, in my opinion.
In the recent case of YAMUSA Vs THE STATE (2022) LPELR–57094 (CA), delivered on 18/3/2022, we said:
“One who asserts that he did not make any confessional statement to the Police is therefore not contesting the voluntariness of the statement produced by the Prosecution as made by him, and so there cannot be any call for trial-within-trial on the status or voluntariness of the statement.”
See also Akwuobi Vs The State (2016) LPELR-41389 (SC), where it was held:
“In this instant appeal, there is a confessional statement made by the appellant voluntarily which was tendered and admitted in evidence at the trial and marked Exhibit 4. Although the appellant denied making such statement or signing same, the trial Court rightfully in my view, did not bother to conduct a trial within trial since the appellant did not say that he made it under duress, torture, promise or any influence. This is because mere denial of making or signing a confessional statement by accused persons is not sufficient ground on which to reject its admissibility in evidence when properly tendered. See Okwesi vs. State (1995) NWLR 119; Ezenge vs. The State (1999) 14 NWLR (pt.637)1. Also where an accused person merely disputes the correctness of a confessional statement or states that he made no statement at all, it is not necessary to conduct a trial within trial. See Madejemesi v The State (2001) 5 SCNJ 59.” Per SANUSI, JSC
See also Ofordike Vs The State (2019) LPELR-46411(SC), where my Lord Okoro JSC said:
“The learned counsel for the Respondent made it clear that denial of making a confessional statement is not synonymous with alleging that it was involuntarily made which I agree totally. This much was held by the Court below in its judgment as found on page 139 of the record as follows:- “In this appeal under consideration, it is clear on record that the appellant did not through his counsel and during the trial, particularly at the point when the prosecution applied to tender the said confessional statement object to its admissibility on the grounds that it was involuntarily made or obtained from him with coercion or as a result of threat to his life or promise of any advantage. In view of the foregoing, a trial within trial is unnecessary and the trial Court was right in its judgment.” I agree entirely with the position taken by the Court below because, as I have stated above, a trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person or his counsel. Where an accused person admits making the statement but contends or asserts that he did not make it voluntarily, but under duress or some other alleged influence, then a trial with trial will be conducted. Where however as in this case, the objection to the admissibility in accused confessional statement is based on the grounds that it was not read over to him and that he did not make it, the statement is treated as a voluntary statement and is admissible without the Court holding a trial within trial which is necessary only where the issue of involuntariness is raised. See Onyenye v The State (2012) 15 NWLR (pt 1324) 586 at 619 paragraphs A-C where this Court set out the circumstances and effect of confessional statements obtained by duress and those merely retracted as follows:- 1. Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks or undue influence or any non-recognizable legal ways, there would be need for a trial within trial. 2. Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable…”
As stated earlier in the case of Yamusa Vs The State (supra):
“Where an accused person denies making a confessional statement at all to the Police, that amounts to a blind plunge into the dark, as is an ill-advised self-delusion, as he cannot therefore contest the content of the Statement Produced and Credited to him. And where the said statement contains the personal profile of the accused person, which could only (sic) have been gotten from him, and/or one in possession of such details, the denial of making the Statement becomes, silly! The law is trite that even where a Confessional Statement is denied or retracted at the trial, the Court can still use it to found conviction where the same is plausible…”
See also GURUMA Vs The State: CA/K/544B/C/2019 of 18/3/2022 and Okon Vs The State (2014) LPELR- 24018 CA, where this Court held:
“Of course, even where the accused person retracts his earlier confessional statement at the trial, that does not prevent the Court from using it to convict the Accused person, if the Court finds the statement relevant and credible, after passing it through the acceptability test, as stated in the case of Haruna vs A.G. Fed. (2012) 2009 LRCN 70: “A Court can convict on the retracted confessional statement of an accused person. But before this is properly done, the trial Judge should evaluate the confession and the testimony of the accused person and all the evidence available. These entail the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the Judge asking himself the following questions: a. Is there anything outside the confession to show it is true? b. Is it corroborated? c. Are the relevant statements made in it, of facts true as far as they can be tested? d. Did the accused person have the opportunity of committing the offence? e. Is the confession possible? f. Is the confession consistent with the other facts which have been ascertained and have been proved?” In the case of Salahudeen vs The State (2013) LPELR-21851 (CA) this Court reiterated: “It has been stated, several times, that a confessional statement is the best and strongest evidence of guilt, as by it the Accused person surrenders himself and closes every door of defence against himself.” See Yusuf vs The State (2012) LPELR-7878 (CA); Akpa vs State (2008) ALL FWLR (pt. 420) 644.”
I therefore hold that Appellant’s denial of making any confessional statement, in this case, was unwise, and that completely demolished any perceivable ground or plank on which Appellant could challenge the competence or credibility of the Statement, produced by the Prosecution as having been made by the Appellant.

It should also be noted that, under cross-examination, Appellant had admitted making the said statement (Exhibits A1-A2) at the office of the Hisbah. See page 30 of the Records of Appeal, where the Appellant said:
“Yes, I agreed that whatever I said was recorded at (sic) Hisbah officials as Exhibits A1 and A2.”

In the Exhibit A2 (English translation/version of the Hausa version- Exhibit A1) Appellant said:
“On the day of Thursday 22/01/2015, Fatima Ahmad came to our house at about 3.00pm with the intention to buy omo, while nobody was in the house, even our mother went out, then I closed the doors and windows and told her to remove her trouser-In the room belong (sic) to Halima (Hajiyarmu) In which I was the Person (sic) took her to the room, after she remove (sic) the trouser then I put my middle finger in her Vagina. She was standing, then she laid own (sic). I repeated and romanced her which this was the second time, and last yesterday, I inserted my Penis into her Vagina.’’ See page 73 of the Records

Meanwhile, the PW3 (the Prosecutrix) had said, in her evidence:
“The accused dragged me into the room of one Hajiyanmu. Hajiyanmu is the senior sister of the Accused. Then he laid me down on the mattress. Then he removed my pant. Then he put his penis into my vagina. Then something started oozing out like pap from his penis and then I was crying. Then after he finished, he gave me N10 and I came back home. Then I told my mother. Then she asked me to remove my pant for her to see. So she examined me and when my father came back she informed him. Then we went to the hospital… Then at the hospital, they refused to give me medicine. Then we went to Hisbah office…” See pages 19-20 of the Records of Appeal.

​In his evidence at the trial Court, Appellant admitted knowing the PW3. He said, under cross-examination:
“I know the victim. Yes, she is my neighbor on 22/1/2015 the victim was sent to my house to buy detergent but I don’t know, this (sic) I know Halima called Hajiyanmu in my house, I am surprised that the victim mentioned my name as the person who raped her…Yes, I gave my statement at Hisbah office. Yes, I agreed that whatever I said was recorded at Hisbah officials (sic) in Exhibit A1 and A2.” Page 30 of the Records

Analyzing the evidence at the trial the learned trial Judge said:
“With all the ingredients of the offence proved, the accused testified in his defence. He however did not put forward any defence as an evidence before the Court. His evidence was a total denial of knowing what he was accused of. He only gave account of his arrest, detention at both Hisbah office and the State CID and then being taken to Prison and Magistrate Court and finally standing trial before this Court. What led to his arrest was not stated by the accused in his evidence…
However, under cross-examination the accused admitted the following facts:
1) The victim Pw3 lives in his ward and he is their neighbor;
2) That the Pw3 was sent to his house to buy omo on the 22/01/2015;
3) That one Hajiyanmu lives in his house;
4) He gave his statement at Hisbah office and admitted that whatever he said there was recorded at Hisbah by its officials i.e. Exhibit A1 & A2.
All these are facts which have been established by the evidence of Pw1, PW2, PW3 and Exhibits A1 and A2. I therefore find the accused’s denial of the commission of the offence is an afterthought, having admitted the contents of Exhibits A1 and A2.”

I cannot find any reason to fault that sound findings of the learned trial Court, which Appellant did not even care to appeal against, other than quarrelling with Hisbah Board for initiating investigation of the case, and taking (recording) the statement of Appellant! Appellant, also quarreled, as to who signed the Statement of Appellant, as recorder. I think those were trivial issues, as there is nothing in the law denying Hisbah or any lawful agency, from questioning any offender or suspect, caught committing offence.
I think any ordinary citizen can confront an offender and get information about his/her role in a given complaint, or allegation of crime, for the purpose of handing him over to the Police or producing him in Court. See Sections 3, 5 and 6 of the Criminal Procedure Act (and equivalent provisions 4-6 of the Administration of Criminal Justice Act) where a Police officer or any other person can effect arrest and inform the arrested person of the cause of his arrest, and may even search such person, using such force as may be reasonably necessary for such purpose and place in safe custody all articles, other than necessary wearing apparel, found upon him. See also Fayose Vs State (2010) LPELR 8658 CA and Okonkwo & Anor Vs Anyadiegwu & Ors (2020) LPELR-50581 CA, where this Court held that no person can be unlawfully arrested and detained when he has committed no offence, but a person who has committed a criminal offence or reasonably suspected to have done so, may be arrested for the purpose of being arraigned in a Court of law.
In the case of Nweke Vs The State (1965) LPELR-25215(SC), it was held:
“According to Section 130 of the Criminal Code- “Any person who, having arrested another upon a charge of an offence, wilfully delays to take him before a Court to be dealt with according to law, is guilty of a misdemeanor, and is liable to imprisonment for two years.” If a private person arrests, lawfully, someone by virtue of Section 12 of the Criminal Procedure Ordinance, and takes him to Court, he can say he did so in obedience to Section 130 of the Criminal Code; and if he takes him to a police station, he can say that he did so in obedience to Section 14(1) of the Criminal Procedure Ordinance, ​ in the event of being prosecuted under Section 130 of the Criminal Code. The ultimate destination of an offender is the Court; the police, too, have to take him there with reasonable speed. There is no substance in counsel’s first point. In connection with that point we would refer to Section 21 of the Constitution of the Federation; it was not mentioned in argument but it is relevant. Subsection (1) provides that- “No person shall be deprived of his personal liberty save in the following cases and in accordance with a procedure permitted by law … (c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence.” That fortifies our view that the ultimate destination is the Court.”
Per BAIRAMIAN, JSC
​I cannot, therefore see anything wrong in Hisbah effecting arrest of the Appellant, upon Appellant being reported to them to have committed offence and initiating investigation and taking statement from Appellant before handing him over to the Police, with the preliminary investigation report, for Prosecution.

And the fact that a team handled the investigation and one of the investigating officers gave evidence and tendered the statement of the Appellant, taken in the course of the investigation, it was not necessary, in my opinion, to call all the other members of the team of investigators, whose name(s) appear on the records, to testify as witness(es). The Prosecution has the right to call the witness(es) they elect to testify, provided they do not hide away a vital witness! See Okanlawon Vs The State (2015) LPELR–24838 (SC):
“This Court has stated in plethora of cases over and over again that how many witnesses the Prosecution needs to prove its case against any accused person is entirely its responsibility but not that of the defence. See; Ijioffor v. The State (2006) 6 NSCQR (Pt.1) 209. The defence is not to decide for the Prosecution who to call as witness.” Per ARIWOOLA, JSC.

​Appellant’s Counsel actually knew, or appeared to know that a translated version of an accused statement does not require the signature of the accused person, but that of the translator. Appellant’s Exhibit A2 (the translated English Version) therefore did not require to be signed by Appellant. There is evidence that Exhibit A2 was signed by the Recorder/translator. (See page 43 of the Records – Exhibit A2, where the name of Pw2 and signature appeared). Counsel had cited the case of State Vs Seidu (2019) 10 NWLR (Pt.1680)308 at 321 to the effect that:
“It is only the signature of the translator that is relevant in a translated version of confessional statement and not that of accused person.”

Despite citing that law, Appellant’s Counsel decided to argue that Exhibit A2 was not a translated copy of Exhibit A1; that both copies were taken as statements of Appellant. But on page 29 of the Records of Appeal, it was clear that Appellant adopted hausa language as medium of communication and that was the very language Appellant elected to use on page 7 of the Records, when he took his plea of not guilty. It cannot therefore be an issue of controversy that Appellant gave statement in Hausa, recorded by the PW2, who also translated it into English – Exhibits A1 and A2 respectively, as stated by PW2.

I cannot, therefore see any room for the confusion introduced by the Counsel for Appellant, as to Exhibit A2 not being translated of Exhibit A1. I do not also see any conflict or contradiction as to the date of the offence, as both the charge and evidence agreed that the offence was committed on 22/1/2015, though Appellant’s confession suggested that the rape was not one day. That too appeared to be taken care of by the charge, which said that the offence was committed on or about 22nd January 2015. And I think that included what may have transpired before 22/1/2015 or so soon after 22/1/2015!

Evidence adduced by the parties, including the confessional statement of the Appellant (Exhibit A1–A2), had clearly located the Appellant in the offence and the ingredients of the offence of rape were clearly established, including penetration of the vagina of the little 10 years old girl. See the case of Posu Vs The State (2011) LPELR–1969; Iko Vs The State (2001) LPELR–1480 (SC); Kabiru Bala Vs The State (2022) LPELR–56737 CA; and Zakari Vs Kano State (2022) LPELR–57093 (CA) on the ingredients of rape.

It is very sad that this is another painful incident of abuse and devastation of the girl-child in this jurisdiction, which appears to be of dangerous proportion, requiring drastic measures by everybody, parents, religious leaders and civil organisations, as well as government, to address and stamp out.

I had cause to scream in the case of Zakari Vs Kano State (Supra) when I said:
“I cannot understand what these sex predators see or seek in frail, fragile bodies of little girls, to subject them to all the stress, hazard, mental, emotional and physical tortures, which leave behind wounds and scars in the victims, destroying their self-worth and pride as girls.
In the recent case of Mato Vs The State (supra), I had course to scream as follows:
“In this case, at hand, the victim is a 10 year old girl, an unfortunate child on the street, hawking food, to earn a living (or sent out to hawk) at such tender age. By law, she cannot even give consent to engage in sexual activities, being under the age of 14 and so was incapable of consenting to any act of sexual intercourse, with anyone. See Section 282 of the Penal Code. In the case of Natsaha Vs State (2017) LPELR-42359 (SC), the Supreme Court held: “It is important to note that under the Penal Code, a child who is under the age of 14 years is incapable of giving consent. See Section 37(c) and 282 (1) (e) of the Code. See also Shuaibu Isa Vs Kano State (2016) LPELR-40011 SC. Therefore, once it is proved that the accused person had sexual intercourse or unlawful carnal knowledge of a girl under the age of 14 years, he is guilty of rape.” Per Kereke-Ekun, JSC.”

Also in the case of Ibrahim Yusuf Vs The State (2022) LPELR–56760 (CA), delivered on 28/1/2022, I said:
“I think what the Appellant did to these little children of 4 to 6 years old in the video centre, violating them and leaving them with such cruel and bruised psyche, which tends to see a wicked monster of a male gender, should jolt every sane mind.”
I hereby dismiss the appeal and affirm the decision of the lower Court.

BOLOUKUROMO MOSES UGO, J.C.A.: I had earlier read in draft the judgment of my learned brother Ita G. Mbaba, JCA. His reasoning and conclusion are in tandem with mine. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

I also find no merit in the appeal and hereby dismiss it.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have read the lead judgment just delivered by my learned brother, ITA GEORGE MBABA, JCA. I agree with his reasoning and conclusion that there is no merit in this appeal. I adopt same in dismissing the appeal and affirming the conviction and sentence of the Appellant contained in the judgment of the lower Court delivered by Hon. Justice Aisha R.D Muhammad on 15th day of November, 2019.

Appearances:

A.S. ABDULKADIR ESQ For Appellant(s)

AISHA MAHMOUD (MRS.) D.PP. KANO STATE. For Respondent(s)