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C.O.P v. LUKA (2022)

C.O.P v. LUKA

(2022)LCN/16093(CA) 

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, April 14, 2022

CA/K/326/C/2020

Before Our Lordships:

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

COMMISSIONER OF POLICE APPELANT(S)

And

ABBAS LUKA RESPONDENT(S)

 

RATIO:

PROOF BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND ALL SHADOW OF DOUBTS

It is trite law that in criminal trials the burden of proving guilt of the accused person rest on the prosecution which has to prove the case beyond reasonable doubt. Proof beyond reasonable doubt simply means to establish the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond all doubts or all shadow of doubts. In order for an accused person to enjoy the benefit of doubt, the doubt must be genuine and arising from the evidence before the Court. See Akinlolu v. State (2016) 2 NWLR (Pt. 1497) 503; Oseni v. State (2012) 5 NWLR (Pt. 1293) 35; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395 and Okunade Kolawole v. State (2015) 61 (Pt. 111) NSCQR 1568. ABUBAKAR MAHMUD TALBA, J.C.A

MATERIAL WITNESSES ARE ONLY REQUIRED IN ESTABLISHING ITS CASE

It is settled law that where two or more persons are witnesses to an event, the law does not impose a duty on the prosecution to call all the persons as witnesses. Rather the prosecution is required to call only those it considers material in order to establish its case. In other words, the discretion as to the number of witnesses to be called is entirely that of the prosecution. It need not call all the witnesses listed in the proof of evidence. See Ogbodu v. The State (1987) 2 NWLR (Pt. 54) 20 (SC) and Adaje v. The State (1979) 6-9 SC 18. ABUBAKAR MAHMUD TALBA, J.C.A

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Kaduna State, Kafanchan Judicial Division, delivered on 28th January, 2020 in charge No: KDH/KAF/6C/2020.

The Respondent was arraigned at the High Court on one count charge of rape contrary to Section 258(1) and (3) of the Penal Code Law of Kaduna State 2017. The Respondent was alleged to have forcefully had sexual intercourse with one Grace Ezekiel on the 26th of October, 2019 in the Respondent’s house at Ungwan Kongo, Tungan Katsit in Zangon Kataf Local Government Area of Kaduna State. At the trial, the Appellant called two witnesses. The Appellant tendered three exhibits marked as Exhibits A, B and C. These are the statement of the respondent, the statement of the victim Grace Ezekiel and the medical report. After close of evidence for the prosecution, the Respondent opened his defence and he testified alone without calling any other witness. The learned counsels addressed the Court and in a considered judgment the learned trial Judge held that the prosecution failed to establish the offence of rape against the Respondent and consequently he was discharged and acquitted.

Being aggrieved by the decision, the Appellant appealed to this Court vide the original notice of appeal filed on 31st January, 2020. The amended notice of appeal was filed on 15th March, 2021 and it was deemed on 2nd November, 2021. The record was transmitted on 31st December, 2021 and it was deemed on 2nd November, 2021. At the hearing of the appeal on the 26th of January, 2022 the Court Registrar informed the Court that the Respondent’s counsel was served with a hearing notice through phone call on 24th January, 2022, on phone number, 07061679575. The Appellant’s counsel Fidelis Adewole adopted the Appellant’s brief of argument filed on 15th March, 2021 and deemed on 2nd November, 2021. The Appellant’s counsel equally adopted the reply brief filed on 12th of November, 2021. The Respondent’s brief of argument was filed on 2nd November, 2021. The Appellant’s counsel urged the Court to deem the Respondent’s brief as having been duly argued. The Respondent’s brief was accordingly deemed as having been duly argued pursuant to Order 19 Rule 9(4). The amended notice of appeal contain four grounds of appeal. The Appellant submitted a sole issue for determination thus;
“Was the Court below not wrong when it held that the appellant failed to establish beyond reasonable doubt the guilt of the Respondent in respect of the offence of rape and went ahead to discharge and acquit the Respondent.”

The respondent equally submitted a sole issue for determination thus;
“Whether having regard to the totality of the evidence adduced before the lower Court the offence of rape as per the charge sheet was proven beyond reasonable doubt.”

The two issues submitted by the two counsels are the same, therefore I adopt the issue submitted by the Respondent. The Appellant argued and submitted that the lower Court was wrong when it held that the Appellant failed to prove beyond reasonable doubt the guilt of the Respondent. He submitted that proof beyond reasonable doubt does not mean proof beyond all doubts or shadow of doubt. See Smart v. State (2016) LPELR-40827 (SC); Orode v. State (2018) LPELR-43788 (CA) and Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170. Learned counsel submitted that the Appellant has cogently proved the elements of the offence of rape against the Respondent, as required by Section 257 of the Penal Code Law of Kaduna State. In the case of Ali v. State (2018) LPELR-45995 (CA), this Court held as follows;
“The elements necessary for the prosecution to prove, to sustain a charge of rape are:
(i) That the accused had sexual intercourse with the prosecutrix or victim
(ii) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, deceit or impersonation
(iii) That the victim was not the wife of the accused
(iv) That the accused had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not and
(v) There was penetration.”

See Jegede v. The State (2001) 1 NWLR (Pt. 733) 264; Ogunbayo v. The State (2007) 1 NWLR (Pt. 1035) 157; Posu v. The State (2011) 2 NWLR (Pt. 1234) 393; Adonike v. State (2015) 7 NWLR (Pt. 1458) 237.

Relying on the testimony of PW1 and PW2 the Appellant’s counsel submitted that it has been established beyond reasonable doubt that the accused had sexual intercourse with the victim without her consent at his house situate at Ungwan Kongo Tunga Katsit in Zangon Kataf Local Government Area of Kaduna State. And the Respondent failed to cross-examine the PW1 and PW2 on these essential elements which means a tacit acceptance of the truth of the evidence of the witnesses. He relied on the case of Oforlete v. State (2000) 12 NWLR (Pt. 681) 415; Adesule v. Mayowa et al (2011) LPELR-3691 (CA); Moses v. FRN (2019) LPELR-47747 (CA); Abadom v. The State (1997) 1 NWLR (Pt. 479) 1.

The learned counsel submitted that the Respondent had the mens rea to commit the offence, hence he invited the victim to his house in the evening. And that the Respondent had sexual intercourse with the victim and there was penetration. Learned counsel submitted that the Respondent confessed to committing rape. He referred to exhibit A and he submitted that if a confessional statement is free and voluntary, direct and positive, it is enough to sustain conviction. See Alarape et al v. State (2001) LPELR-412 (SC); Jafiya v. State (1971) 1 ALL NLR 50; Adebayo v. A. G. Ogun State (2008) LPELR-80 (SC); Nwachukwu v. The State (2007) LPELR-8075 (SC) Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383 Odeh v. FRN (2008) 3-4 SC 147; Yahaya v. The State (1986) 12 SC 450; R. V. Itule (1961) ALL NLR 462; Sule Iyanda Salawu v. The State (1971) NMLR 249; Grace Akinfe v. The State (1988) 7 SCNJ (Pt. 11) 266.

On the issue of calling the victim to testify learned counsel submitted that it is trite law that a party need not call a host of witnesses or a particular witness in proof of its case. And the defence cannot dictate who to call or ought to have been called to testify for the prosecution. He relied on the case of Ayoola v. State of Lagos (2019) LPELR-49246 Rowaye v. FRN & Ors (2018) LPELR-45650 and Oduneye v. State (2001) LPELR-2245 (SC). Learned counsel urged the Court to set aside the judgment of the lower Court and to hold that the Respondent is guilty of the offence charged.

In his response, the Respondent’s counsel submitted that throughout the Appellant’s case there is paucity of cogent evidence establishing that the Respondent committed the offence as charged. PW1 and PW2 in their evidence failed to establish the facts of the offence charged. There is nothing to show that the alleged victim Grace Ezekiel was actually raped by the Respondent. What the PW1 did was to arrest the Respondent and he took his extra-judicial statement. PW1 narrate to the Court what the victim Grace Ezekiel told him about how she was raped by the Respondent. The evidence of PW1 is hearsay evidence hence he has no knowledge of the fact except what he was told by Grace Ezekiel, who was not called to testify. The evidence of PW2 Dr. Bankwof G. S clearly vindicates the Respondent. During examination in Chief he stated thus:
“… I then examined her generally on her body. There was no bruises. I did vaginal exams and found out that there was normal vulva and there was no hymen and no sperm.”

During cross-examination he stated that in totality he has no evidence that the victim was raped. Learned counsel submitted further that the evidence of the victim is vital and failure to call her to testify is sufficient to create doubt as to the guilt of the Respondent. See Nnanyelugo v. Nnanyrlugo (2008) ALL NWLR (Pt. 401) 879 Utteh v. State (1992) 2 NWLR (Pt. 223) 257).

​The victim being a competent witness, there is nothing to explain her absence. She is not below the age of 14 years, neither was she of unsound mind and uncapable of giving evidence. She is not sick or incapacitated. The Respondent resiled from exhibit A and there is nothing to corroborate Exhibit A, so the Court cannot attach any weight on exhibit A. See Ajayi v. The State (2015) LPELR-23027 (SC); Akpan v. State (2000) 12 NWLR (Pt. 682) 607; Osetola v. State (2012) NWLR (Pt. 1329) 251 and Okashetu v. State (2014) LPELR-24493 (CA).

I have examined the reply brief filed by the Appellant’s counsel, it is pertinent to mention that a reply brief is not a repair kit. It is not meant to reargue the Appellant’s case rather it is meant to address new issues of law that was raised in the Respondents brief. See Order 19 Rule 5(1) of the Court of Appeal Rules 2021. The Appellant’s reply brief is a reargument of the Appellant’s brief and same is discountenanced.

The appellate Court must adhere strictly to the findings of fact of the learned trial Judge. Particularly where such findings are based on the credibility of the witnesses whom the learned trial Judge saw, heard and believed. See Esangbedo v. The State (1989) 7 SC (Pt. 1) 36.

An appellate Court will only interfere with the findings of the trial Court if the trial Court failed to make a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from the accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. See Oguonzee v. The State (1998) 4 SC 110; Maja v. Stocco (1968) 1 ALL NLR 141 and Woluchem v. Gudi (1981) 5 SC 291.

After evaluating the evidence, the learned trial judge made the following findings thus;
“Likely in all criminal trial, the prosecution has an unshifted burden to prove its case against a defendant beyond reasonable doubt was it so proved here? To be noted and very quickly is that rape is proved vide proof of penetration of the virgina by the defendant and penetration is solely the assignment of the medical officer that examined the victim, to Dr in PW2? Interalia when testifying, PW2 said “no evidence” that she was raped.”
Chapter closed. There was no proof of penetration committing by the defendant what is even more, we have no evidence from the victim as she was not brought to testify, to tell us her side of the incident. We were also not told any reason for not bringing her as well. She is not below 14 years old or of unsound mind etc as we were not told or sick and incapacitated.
Her evidence, if it were produced would have been detrimental to prosecution’s case that was why it was not so brought. See Section 167(d) Evidence Act 2011 and I so hold. There is no issue of any confession in Exhibit A, the conditions favourable for accepting a statement as a confession were absent here. I found none. In fact, even if there was a form of confession if required outside pieces of evidence to corroborate but we had none from any of the prosecution witnesses or Exhibits B & C and were documents that further smeared the evidence of the prosecution.
In conclusion and in totality, the prosecution’s case collapsed here like a bundle of cards and failed woefully to establish rape against this defendant. If there was any sex between them it was a consensual one enjoyed by both on that glittering evening of the incident and so hold.
Consequently, the defendant is hereby discharged and acquitted”

It is trite law that in criminal trials the burden of proving guilt of the accused person rest on the prosecution which has to prove the case beyond reasonable doubt. Proof beyond reasonable doubt simply means to establish the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond all doubts or all shadow of doubts. In order for an accused person to enjoy the benefit of doubt, the doubt must be genuine and arising from the evidence before the Court. See Akinlolu v. State (2016) 2 NWLR (Pt. 1497) 503; Oseni v. State (2012) 5 NWLR (Pt. 1293) 35; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395 and Okunade Kolawole v. State (2015) 61 (Pt. 111) NSCQR 1568.
However, it is only when all the essential elements of an alleged offence have been clearly established that a charge is said to have been proved beyond reasonable doubt.

An offence can be proved by either or all of the following ways:
(a) Evidence by eye witness or
(b) The confession of the accused or
(c) Circumstantial evidence.
​See Igri v. State (2012) 16 NWLR (Pt. 1327) 522 and Ali v. State (2012) 7 NWLR (Pt. 1299) 209. In this instant case, there is no evidence of an eye witness and no circumstantial evidence. The learned trial Judge held that there is no issue of any confession in exhibit A, the conditions favourable for accepting a statement as a confession were absent. The evidence of the victim Grace Ezekiel is no doubt very vital, and failure to call the victim to testify is fatal to the case of the prosecution. Her evidence is no doubt a material evidence. Material evidence is such evidence which on account of its logical nexus with the issue tends to influence decisively the establishment of the facts in issue. The prosecution has a duty to call all material witnesses. See Oguonzee v. The State (1998) 4 SC 110 and Effiong v. The State (1998) 5 SC 136. If the prosecution had called the victim Grace Ezekiel to testify, she would have been cross-examined to test the veracity, the accuracy and completeness of her story. And if she withstands the agony of cross-examination it follows that her testimony was truthful, accurate and complete. See State v. Aibangbee (1988) 7 SC (Pt. 1) 96.
The failure of the prosecution/appellant to call the victim to testify led the trial Judge to draw inferences unfavourable to the prosecution’s case. The learned trial Judge held thus;
“Her evidence if it were produced would have been detrimental to prosecution case that was why it was not so brought. See Section 167(d) Evidence Act 2011 and I so hold.”
The learned trial Judge also held thus;
“… If there was any sex between them it was a consensual one enjoyed by both on that glittering evening of the incident and so hold.”
It is settled law that where two or more persons are witnesses to an event, the law does not impose a duty on the prosecution to call all the persons as witnesses. Rather the prosecution is required to call only those it considers material in order to establish its case. In other words, the discretion as to the number of witnesses to be called is entirely that of the prosecution. It need not call all the witnesses listed in the proof of evidence. See Ogbodu v. The State (1987) 2 NWLR (Pt. 54) 20 (SC) and Adaje v. The State (1979) 6-9 SC 18.

In this instant case, none of the two witnesses called by the prosecution are witnesses to the event. It is only the victim who is a witness to the event. And being the only material witness, the prosecution failed to call her to testify. And without any reason whatsoever.

The evidence of PW1 is no doubt a hearsay evidence which is inadmissible in law. He told the Court what he was told by the victim. He arrested the Respondent and he obtained the extra-judicial statement of the Respondent and the victim. As for PW2, the Respondent’s counsel rightly submitted that the evidence of PW2 Dr. Bankwot. G. S, clearly vindicates the Respondent he stated thus;
“I then examined her generally on her body. There was no bruises. I did vaginal exams and found out that there was normal vulva and there was no hymen and no sperm.”

During cross-examination, PW2 stated that in totality he has no evidence that the victim was raped. On the strength of the testimony of PW2, the learned trial Judge held that “chapter closed”.

​This piece of evidence is conclusive that there was no rape. The judgment of the trial Court cannot be faulted therefore the appellate Court has no basis to interfere with the findings which is based on the evidence before the trial Court.

Consequently, the sole issue is resolved against the Appellant. The appeal lacks merit and it is accordingly dismissed. The judgment of the High Court of Justice Kaduna State, Kafanchan judicial Division delivered on the 28th January, 2020 in Charge No: KDH/KAF/6C/2020 is hereby affirmed.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Abubakar Mahmud Talba, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

KENNETH IKECHUKWU AMADI, J.C.A.: I had the privilege of reading before now, the draft of the judgment just delivered by my learned brother, Abubakar Mahmud Talba, JCA.

​For the detailed reasons contained therein, I agree with the conclusion that the appeal is devoid of merit, same is accordingly dismissed by me. I affirm the judgment of the High Court of Justice Kaduna State, Kafanchan Judicial Division delivered on the 28th January, 2020 in Charge No: KDH/KAF/6C/2020.

Appearances:

Fidelis Adewole, Esq. For Appellant(s)

O. J. Ajopkobi, Esq. For Respondent(s)