CPL. ISAH AHMED v. THE NIGERIAN ARMY
(2010)LCN/3632(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of March, 2010
CA/A/88C/2006
RATIO
CRIMINAL LAW: OFFENCE OF RAPE
The offence of rape is the unlawful carnal knowledge of a woman or girl, without her consent or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm or by means of false and fraudulent representation as to the nature of the act, or in the case of a married woman, by personating her husband.
It may be stated differently by saying that rape, means a forcible sexual intercourse with a girl or woman without her giving her consent to it. PER MARY U. PETER-ODILI, J.C.A.
CRIMINAL LAW: THE MOST IMPORTANT INGREDIENT OF THE OFFENCE OF RAPE
The most important and essential ingredient of the offence is penetration. The consent of the victim is a complete defence of the offence. Thus, any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, is guilty of the offence of rape. See Jegede v. State (2001) 14 NWLR (pt. 733) 264; Ogunbayo v. State (2007) 8 NWLR (pt.1035) 157 at 178 (pt. 732); Iko v. State (2001) 14 NWLR (pt. 732) 221.
The important and essential ingredient of the offence of rape is penetration. Sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. Emission is not a necessary requirement. Any or even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Thus, where penetration is proved but not of such a depth as to injure the hymen, it will be sufficient to constitute the crime of rape. Therefore, proof of the rupture of the hymen is unnecessary to establish the offence of rape. It is for that reason that the Appellant’s contention that the girl was not a virgin at the time of medical examination does not change the fact of rape once the penetration is established. Ogunbayo v. State (2007) 8 NWLR (pt. 1035) 157; State v. Ojo (1980) 2 NCR 391; Jegede v. State (2001) 14 NWLR (pt. 733) 264. PER MARY U. PETER-ODILI, J.C.A.
EVIDENCE: MEANING OF CORROBORATION
Corroboration is not a technical term of art and means no more than evidence tending to confirm, support and strengthen other evidence sought to be corroborated. Ogunbayo v. State (2007) 8 NWLR (pt. 1035) 157 at 179 (SC). PER MARY U. PETER-ODILI, J.C.A.
EVIDENCE: INGREDIENTS OF A PIECE OF EVIDENCE OFFERED AS CORROBORATION FOR THE OFFENCE OF RAPE
A piece of evidence offered as corroboration for the offence of rape must be,
(a) cogent, compelling and unequivocal as to show without more that the accused committed the offence charged;
(b) an independent evidence which connects the accused with the offence charged, and
(c) evidence that implicates the accused in the commission of the offence charged.
Ogunbayo v. State (2007) 8 NWLR (pt. 1035) 157 at 188. Per Tobi J.S.C; Sambo v. State (1993) 6 NWLR (pt. 300) 399; Upahar v. State (2003) 6 NWLR (pt. 816) 230; Ifejirika v. The state (1999) 3 NWLR (pt. 593) 59 per Onalaja J.C.A at 77. PER MARY U. PETER-ODILI, J.C.A.
JUSTICES
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
CPL. ISAH AHMED Appellant(s)
AND
THE NIGERIAN ARMY Respondent(s)
MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the General Court Martial of the Nigerian Army sitting in Abuja. The judgment was delivered by the said court on 29th August, 2005.
FACTS:
The Accused/Appellant (Corporal Isah Ahmed 91 NA/32/4119) was charged before the Lower court for defilement contrary to Section 78 of the Armed Forces Act Cap. A 20 Laws of the Federation of Nigeria 2004. The particulars of the offence state that he (accused/appellant) at Abuja between February March, 2002 had carnal knowledge of Miss Ruth Waziri, a girl of 11 years of age and on several occasions.
On the 26th of July, 2005 the Prosecution amended the charge to read that the alleged offence was committed between January, 2004 – March, 2005. The prosecution called 5 witnesses in all while the accused/appellant called 2 witnesses and testified for himself as DW1. The two sides addressed the Lower court extensively at the close of their respective cases and the matter was then adjourned for judgment and on the date for judgment found the accused/appellant guilty and convicted him accordingly. Being dissatisfied the accused has appealed to this court with leave of court granted on 21st June, 2007.
On the 15th February, 2010 date of hearing, the learned counsel for the Appellant Chief O.J. Onoja on his behalf adopted Appellant’s Brief filed on , 6/10/09 and deemed filed on 28/10/09. In it was framed one single issue for determination viz:-
Whether the prosecution proved its case beyond reasonable doubt as required by law.
Mr. Rilwanu. Learned counsel for the Respondent adopted the Respondent’s Brief dated on 18/11/09 and filed on 24/11/09. The Respondent couched a sole issue as follows:-
Whether or not in view of the evidence as contained in the record of proceedings, the trial Court Martial was justified in holding that the charge of defilement against the Accused/Appellant was proved beyond reasonable doubt.
The issue as formulated by the Appellant being simple and straight forward. I shall utilise it for the purpose of the consideration of this appeal.
SOLE ISSUE:
Whether the prosecution proved its case beyond reasonable doubt as required by law.
For the Appellant was contended by Chief Onoja of counsel, that to prove the offence alleged, the prosecution ought to establish the following:-
(a) That there was unlawful carnal knowledge of the victim (PW2).
(b) The unlawful carnal knowledge was committed by the Accused/Appellant,
That those points above could be differently put as:
(a) Penetration of the vagina.
(b) The penetration is limited to the accused/appellant
Mr. Onoja said in the instant case, there is no legal evidence before the Lower court that there was unlawful carnal knowledge of the victim (PW2). That apart from her evidence there is medical evidence by PW5 that she, PW2 had lost her virginity and that the physical examination was done after 48 hours hence she could not confirm any act of sexual intercourse. That the unexplained delay is fatal to the prosecution’s case.
Learned counsel for the Appellant further stated that both PW5 and the medical report, Exhibit ‘P6’ did not state how the victim lost her virginity which fact raised a doubt which should be resolved in favour of the Appellant. He cited the cases of Jegede v. State (2001) 14 NWLR (pt. 733) 264, Ifejirika v. State (1999) 3 NWLR (pt. 593) 59.
He went on to say that the evidence of sexual intercourse between PW2 and Appellant which evidence was given by PW2 needed corroboration. That there was no proof of unlawful carnal knowledge of the victim since penetration was not established and even if that was done that it was linked to the Appellant. That the evidence of the prosecutrix in this case PW2, being a minor needed corroboration which was not done.
He cited Section 179 (5) of the Evidence Act.
Learned counsel for the Appellant submitted that the evidence of PW2 of the birth mark around appellant’s public hair area was not corroboration sufficient in proof of sexual intercourse by the Appellant and the PW2. He cited Igbina v. State (1997) 9 NWLR (pt. 519) 101 at 109; Sanni v. State (1993) 4 NWLR (pt. 285) 99.
Mr. Onoja said it was instructive to note that the victim (PW2) gave evidence under cross-examination that she had never been to the Appellant’s house alone and she did not mention the name of the other person, nor was the person called as witness therefore bringing into operation Section 149 (d) of the Evidence Act in that if the person had been produced, his evidence would not have been favourable to the prosecution.
Learned counsel for the Respondent, Mr. Rilwanu contended that the evidence on record consists of comprehensive, coherent, compelling and conclusive facts which are capable of no other hypothesis other than the conclusion that the Accused/Appellant committed the offence for which he was charged, tried and convicted. He cited the case of Ganiyu Nasiru v. State (1999) 65 LRCN 151 at 169; Section 78 of the Armed Forces Act Cap A20 LFN 2004.
That the core elements to be proved by the prosecution in order to sustain the charge are:-
1. Is the Accused/Appellant subject to service Law?
2. Did the accused/Appellant have carnal knowledge of Miss Ruth?
3. Is Miss Ruth under the age of 16 years?
That these essential elements of the offence were established in evidence as can be seen from the Records. He cited Magaji v. Nigerian Army (2008) 8 NWLR (pt. 1089) 338 at 373; Ogunbayo v. State (2007) 5 MJSC 32 at 49 – 51.
Mr. Rilwanu further stated that apart from the direct evidence of PW2 of penetration there was a further confirmatory and circumstantial evidence of the colour of the penis of the Appellant as well as the existence of a hidden birth mark on his lap/thigh which could only be seen when the Appellant undresses which the Appellant in his testimony admitted.
Learned counsel said apart from the abundance of direct evidence on record before the trial court, there was enough circumstantial evidence to justify the conviction and sentence of the Appellant. He cited Magaji v. Nigerian army (2008) 8 NWLR (pt 1089) 338 at 375; Eberechi v. State (2009) 2-3 MJSC 138 at 153. He submitted that other vital circumstantial evidence on record against the Appellant which all through the proceedings remained uncontroverted are the fact that save the two and half months the Appellant was not in the country, between January 2004 and March, 2005 he was present and had the opportunity of meeting the victim that the fact that at some specified time, the wife of the Appellant was not always available at home was not controverted. Also not controverted counsel said is the fact that the accused used to send the victim on errands to buy things for him. Also corroborated was the birth mark on the lap/thigh of the Appellant by PW5 and Exhibit ‘P6’.
He cited Ogunbayo v. State (2007) 5 MJSC 32 at 45; Sambo v. State (1999) 1 NWLR (pt. 300) 399.
Mr. Rilwanu stated that there were no material contradictions in the evidence of the prosecution witnesses and so the testimonies would not be discredited. He cited Usung v. State (2009) All FWLR (pt 462) 1203 at 1241; Igabele v. State (2006) MJSC 96 at 108; Ehot v. State (1993)5 SCNJ 65 at 80.
Learned counsel for the Respondent contended that the findings of the trial court not being perverse there would be no basis for this appellate court to interfere therewith. He cited Amadi v. FRN (2009) All FWLR (pt. 462) 1103 at 1120; Usung v. State (2009) All FWLR (pt. 462) 1203 at 1241.
That is the summary of the submissions of counsel either way to persuade the Court to a tine of thinking and consideration for either of the two parties. What is before court is a charge, conviction and sentence under Section 78 Armed Forces Act Cap.20, Laws of the Federation 2004 which law is impari materia to Section 282 (1) of the Penal Code. The reason for the application of the armed Forces Act being the fact that Accused/Appellant is a serving army personnel of the Rank of corporal, who had to be tried before the General Court Martial.
By the provisions of Section 282 (1) of the Penal Code Law, a man is said to commit rape who, save in the case referred to in subsection
(2) has sexual intercourse with a woman;
(a) against her will;
(b) without her consent;
(c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt;
(d) with her consent, when the man knows that he is not her husband that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(e) with or without her consent when she is under 14 years of age or of unsound mind.
I refer to the case of Igbina v. State (1997) 9 NWLR (pt. 519) 10, a judgment of this court.
In a criminal trial, the burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Therefore, there is generally no duty on the accused to prove his innocence. However, there may be circumstances in which some explanation is required from the accused person where the facts against him are strong. If he fails to offer such explanations, his failure will support an inference of guilt against him. Igabele v. State (2006) 6 NWLR (pt. 975) 100 at 131 per Onnoghen J.S.C.
Where the evidence adduced by the prosecution in a criminal case is tested, scrutinized and accepted by the trial court and it conclusively points to the accused as the perpetrator of the crime charged. It is for the accused to rebut the presumption that he committed the crime and at least to cast a reasonable doubt on the prosecution’s case by preponderance of possibilities. Igabele v. State (2006) 6 NWLR (pt. 975) 100 at 136 – 137; Ikebudu v. Bornu N.A. (1966) 10 NNLR 44; Onakpoya v. R. (1959) SCNLR 384; Kalu v. State (1993) 6 NWLR (pt. 300) 385; Aniche v. State (1993) 6 NWLR (pt. 302) 752.
It is necessary that I have recourse to the time tested road map on how the guilt of an accused can be established and it is thus:-
The guilt of an accused person can be proved by
(a) the confessional statement of the accused person; or
(b) circumstantial evidence; or
(c) evidence of eye-witness of the crime.
Thus, the prosecution does not always need an eye-witness account to convict an accused of any offence including rape, if the charge can otherwise be proved.
Igabele v. State (2006) 6 NWLR (pt. 975) 100 at 120 – 121; 130 (SC); Lori v. State (1980) 8 -11 SC 81; Emeka v. State (2001) 14 NWLR (pt. 734) 666.
The burden of proving a charge against an accused person is upon the prosecution. However, once the prosecution has adduced evidence which includes circumstantial evidence, which shows that the accused is guilty of the offence charged, the burden of proving that he is innocent shifts to the accused by virtue of Sections 138 (3), 139,141 and 143 of the Evidence Act. This does not derogate from the right of an accused person not to be compelled to give evidence at the trial provided by Section 33(ii) of the 1979 Constitution. Per Uwais CJN in Nasiru v. State (1999) 2 NWLR (pt. 589) 87 at 102.
The provisions of Section 33 (ii) of the 1979 Constitution do not stop a trial court from commenting on or drawing any unfavourable inference against an accused person who fails to testify, having regard to the evidence adduced in the case by the prosecution.
Nasiru v. The State (1999) 2 NWLR (pt. 589) 87 at 102, Sugh v. State (1988) 2 NWLR (pt. 77) 475.
The offence of rape is the unlawful carnal knowledge of a woman or girl, without her consent or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm or by means of false and fraudulent representation as to the nature of the act, or in the case of a married woman, by personating her husband.
It may be stated differently by saying that rape, means a forcible sexual intercourse with a girl or woman without her giving her consent to it.
The most important and essential ingredient of the offence is penetration. The consent of the victim is a complete defence of the offence. Thus, any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, is guilty of the offence of rape. See Jegede v. State (2001) 14 NWLR (pt. 733) 264; Ogunbayo v. State (2007) 8 NWLR (pt.1035) 157 at 178 (pt. 732); Iko v. State (2001) 14 NWLR (pt. 732) 221.
The important and essential ingredient of the offence of rape is penetration. Sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. Emission is not a necessary requirement. Any or even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Thus, where penetration is proved but not of such a depth as to injure the hymen, it will be sufficient to constitute the crime of rape. Therefore, proof of the rupture of the hymen is unnecessary to establish the offence of rape. It is for that reason that the Appellant’s contention that the girl was not a virgin at the time of medical examination does not change the fact of rape once the penetration is established. Ogunbayo v. State (2007) 8 NWLR (pt. 1035) 157; State v. Ojo (1980) 2 NCR 391; Jegede v. State (2001) 14 NWLR (pt. 733) 264.
By virtue of Section 178 (5) of the Evidence Act proof of the offence of rape under Section 282 (i) (e) of the Penal Code requires that the evidence of the prosecutrix must be corroborated. Such corroboration could either be by direct or circumstantial evidence provided it shows in some material particular not only that the offence was committed but that it was the accused who committed the offence. Sanni v. The State (1993) 4 NWLR (pt. 285) 99; R v. Goe (1953) 14 WACA 277; Ekelagu v. Queen (1960) SCNLR 488; Yari v. Zaria N.A (1967) NNLR 85.
In considering whether evidence is corroborative or not, the court must take the evidence as a whole and not piece by piece and suspicion cannot give such evidence the quality of corroboration. See Sanni v. The state (1993) 4 NWLR (pt. 285) 99 118,119; Omisade v. Queen (1964) 1 All NLR 233; Okafor v. C.O.P. (1965) NMLR 89 at 90 – 91.
Corroboration is not a technical term of art and means no more than evidence tending to confirm, support and strengthen other evidence sought to be corroborated. Ogunbayo v. State (2007) 8 NWLR (pt. 1035) 157 at 179 (SC).
A piece of evidence offered as corroboration for the offence of rape must be,
(a) cogent, compelling and unequivocal as to show without more that the accused committed the offence charged;
(b) an independent evidence which connects the accused with the offence charged, and
(c) evidence that implicates the accused in the commission of the offence charged.
Ogunbayo v. State (2007) 8 NWLR (pt. 1035) 157 at 188. Per Tobi J.S.C; Sambo v. State (1993) 6 NWLR (pt. 300) 399; Upahar v. State (2003) 6 NWLR (pt. 816) 230; Ifejirika v. The state (1999) 3 NWLR (pt. 593) 59 per Onalaja J.C.A at 77.
It is the duty of the trial court to warn itself in dealing with evidence of persons having some purpose of their own to serve. Where such persons give evidence in court, their evidence ought to be regarded with considerable caution and the trial court ought to be wary in reaching a verdict of guilty on the uncorroborated evidence of such witnesses. Those that fall into the category of such persons are relations of a victim of an offence whose evidence should be treated with caution; Akinlemibola v. C.O.P. (1976) 6 SC 205; Idahosa v. The Queen (1965) NMLR 85; Peter v. State (1994) 5 NWLR (pt. 342) 74.
The Appellant made a lot of fuss about the need for corroboration of the evidence of the prosecutrix, a girl of 11 at the time of the incident, and seemed not to distinguish with the corroboration where such a prosecutrix as a minor was not sworn or as in this case where the minor was sworn, understanding the import of such.
In criminal trial, corroboration of evidence is not required except where the law demands it. Evidence of corroboration of the evidence of the victim in a rape case is not required as a matter of law, but it is required in practice. In other words, in the cases of a sexual character, it is eminently desirable that the evidence of the complainant should be strengthened by other evidence implicating the accused person in some material particular. It is however not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. Ogunbayo v. State (2007) 8 NWLR (pt. 1035) 157; Iko v. State (2001) 14 NWLR (pt. 732) 221; Ibeakanma v. Queen (1963) 2 SCNLR 191; Reekie v. Queen (1954) 14 WACA 501; Sumonu v. I.G.P. (1957) WRNLR 23.
Evidence in corroboration must be an independent testimony, direct or circumstantial which confirms in some material particular not only that an offence has been committed, but that the accused person has committed it. Corroboration need not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respect material to the charge. Ogunbayo v. State (2007) 8 NWLR (pt. 1035) 157.
Any evidence that will serve as corporation must not be fawed, doubtful or discredited.
In criminal cases, corporation must come from the prosecution and never from the defence.
It is the law that before the prosecution can secure conviction for the offence of rape, the evidence of the prosecutrix (the victim of rape) must be corroborated in some material particular that sexual intercourse did take place and that it was without her consent, Igbine v. State (supra) 110; Okafor v. Police (1964) 1 All NLR 302; Sambo v. State 91993) 6 NWLR (pt. 300) 39 Sambo v. State (1993) 6 NWLR (pt 300) 399.
The Respondent had posited that, there was more than enough from which the needed corroborate would be accessed. In the case in hand, the prosecutrix though a child, was put through the rest of knowledge or the meaning of being sworn and she scaled through effectively.
Therefore the strength of the corroborative evidence to support her testimony is not the same as that of an unsworn child. In the instant case the PW2, prosecutrix, Ruth Waziri testified with clarity not only that she had been severally raped more than three times, she was able to note and state the two birth marks around the pubic area of the Appellant on the thigh, which was confirmed by the PW5 Medical Doctor orally and in her Report, Exhibit ‘P6’. This point was reluctantly admitted by the Appellant in Cross- Examination even though he had denied the existence of such in examination in chief.
The Appellant had raised the fact of absence of the person who used to go with the PW2 to the house of the Appellant and that the failure to produce that girl brought into operation the presumption under Section 149(d) of the Evidence Act to the effect that if such evidence was produced it would work against the prosecution. That can only apply if there is not enough on which the prosecution can hang its case, and that is not the situation in the instant case.
The issue of circumstantial evidence was brought into play by parties and while Appellant said there was insufficiency of the circumstantial evidence which could assist the prosecution, the Respondent disagree contending the circumstantial evidence available were direct and compelling.
The provision of Section 149 of the Evidence Act enables a court to accept the proof of the commission of an offence by circumstantial evidence. This has been made so because in criminal cases the possibility of always proving the offence charged by direct and positive testimony of eye witness is rare. It is therefore permitted to infer, from the facts proved, other facts necessary to complete the elements of guilt or establish innocence. Nasiru v. State (1999) 2 NWLR (pt. 589) 87 (SC); Ororosokode v. Queen (1960) SCNLR 501; Obosi v. State (1965) NMLR 129; Ukorah v. State (1977) 4 SC 167; Onah v. State (1985) 3 NWLR (pt. 12) 236; State v. Edobor (1975) 9 – 11 SC 69; Peba v. State (1980) 8 – 11 SC 76; Omogodo v. State (1981) 5 SC 5; Esai v. State (1976) 11 SC 39; Ibina v. State (1989) 5 NWLR (pt. 120) 238; Kim v. State (1991) 2 NWLR (pt. 175) 622; Kalu v. State (1993) 6 NWLR (pt. 300) 385.
The court must take great care in drawing an inference of guilt of an accused person from circumstantial evidence so as not to fall into serious error. Therefore, circumstantial evidence must be narrowly examined so that a possibility of fabrication to cast suspicions on an innocent person is ruled out. For that reason, before circumstantial evidence is to form, the basis of a conviction the circumstances must clearly and forcibly suggest that the accused was the person who committed the offence and that no one else could have been the offender. Per Onnoghen J.S.C. Igabele v. State (2006) 6 NWLR (pt. 975) 100 at 130; Udedibia v. State (Ii76) 11SC 133; Adie v. State (1980) 1 – 2 SC 116; Omogodo v. State (1981) 5 SC 5.
Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. However, circumstantial evidence, to be sufficient to support a conviction in a criminal trial must be complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the accused and no one else is the culprit. The facts must be incompatible with the innocence of the accused and incompatible of explanation upon any other reasonable hypothesis than that of his guilt particularly as no doubt must be resolved in favour of the accused. The above principle applies here where the secret birth marks on the accused were established, the period of abuse of the accused at a point in time or that of his wife. Also not challenged in fact admitted is that accused used to send the prosecutrix on errands. Therefore, even if there was no direct evidence the circumstantial evidence proffered would suffice. Igabele v. State (2006) 6 NWLR (pt. 975) 100 (SC); Lori v. State (1980) 8 – 11 SC 81; Esai v. State (1976) 11 SC 39; Abieke v. State (1975) 9 – 11 SC 97.
Edobor v. State (1975) 9 – 11 SC 69; Adeoti v. State (1998) 9 NWLR (pt. 565) 185; State v. Ifu (1964) 8 ENLR 28; Essien v. State (1966) NMLR 229; Popoola v. C.O.P. (1964) NMLR 1; Queen v. Ororosokode (1960) SCNLR 501; Oladejo v. State (1987) 3 NWLR (pt. 61) 419; Buje v. State (1995) 4 NWLR (pt. 185) 287; Ntibunka v. State (1972) 1 SC 71; Ukora v. State (1977) 4 SC 167.
Section 219 of the Criminal Procedure Code empowers any court in a criminal trial to convict a person charged with an offence with an attempt to commit that offence although he was not separately charged with the offence of attempt.
The Court can do so even without amending the original charge to give the person convicted opportunity to know what he was to meet. Similarly, Section 218 of the Criminal Procedure Code empowers the Court to substitute for an offence with which an accused is charged another offence and convict him of such other offence where such is proved. In the case of: Sanni v. The State (1993) 4 NWLR (pt. 285) 99 (CA), it was held as follows:-
1. An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which could constitute its actual commission if it were not interrupted.
2. The actus of an attempt to commit a distinct or specific offence comprises an act done by the accused in furtherance of the immediate commission of the distinct or specific offence and the said act cannot reasonably be regarded as having any purpose except the commission of the distinct or specific offence. The actus reus of attempt should not be remotely connected with the commission of the offence but it need not be the penultimate act. It is sufficient in law that the act of attempt is reasonably proximate or close enough that the distinct or specific offence would have been consummated but for the intervention by the victim or third party or any other extraneous factor.
Where a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended, either through an intervening act or involuntary obstruction he is said to commit the attempt of the offence intended. The end to which the accused arrived must have been substantially attained but for the intervention which he never volunteered or anticipated and which prevented the commission of the full offence intended.
Jegede v. The State (2001) 14 NWLR (pt. 733) 264; Orija v. Police (1957) NRNLR 189; Police v. Fowowe (1957) WRNLR 188. I shall quote the views of Ogundare J.S.C in defining the offence of attempt to commit an offence which would assist us herein.
“If is not necessarily the last act in every case which proves an attempt to commit an offence. All that is required is an act immediately connected with the particular offence which clearly shows that, the offender was attempting to commit it that is what Section 4 of the Criminal Code requires; that is an overt act which clearly manifests the intention but which does not amount to its fulfillment. It may be the last of a series of overt acts because up to that point, it is not clear whether the offender is attempting to commit the particular offence charged or some other offence. It may be the first act because the act was unequivocally an attempt to commit the particular offence and no other.
“It is necessary to ascertain the acts immediately connected with the crime in order to decide which overt act or acts clearly manifest the intention to commit the crime. But the prosecution must prove that the steps taken by the accused must have reached the point when they indicate beyond reasonable doubt what was the end to which they were directed”. See Jegede v. The State (2001) 14 NWLR (pt. 733) 264 at 284 – 185 Orija v. Inspector – General of Police (1957) NRNLR 189.
To constitute an attempt, the act of the accused must be immediately connected with the commission of the particular offence and must be something more than mere preparation for the commission of the offence.
The constituent elements of the inchoate crime of an attempt are:-
(a) a physical act by the offender sufficiently proximate to complete offence; and
(b) an intention on the part of the offender to commit the complete offence.
Acts that are merely preparatory to the commission of the offence are not sufficiently proximate to constitute an attempt as the mere intention to commit a misdemeanor is not criminal. Some act is required and this must be an act immediately connected with the commission of the offence and not acts remotely leading towards Jegede v. State (2001) 14 NWLR (pt. 733) 264; Ozigbo v. Commissioner of Police (1976) 1 All NLR 133; Orija v. I.G.P. (1957) NRNLR 189; R v. Offiong K3 WACA 83.
From the foregoing any argument to suggest that what transpired was an attempt is not feasible and the matter was beyond what is contemplated in an offence of attempt.
The fact that prosecution witnesses are friends or relatives of the deceased does not make their evidence inadmissible. The fact only makes a court adjudicating on the case to be circumspect in the reception of their evidence and to treat such evidence with caution.
The solitary reason that a prosecution witness is the father or mother of the prosecutrix in the trial for the offence of rape is not enough to label him a tainted witness. I found it curious, the distinction the Appellants made in their evidence as to whether or not Helen Waziri was mother or step mother of the prosecutrix that relevance in this case I do not see since it does not change of whether or not the offence of the rape in issue took place.
Ifejirika v. State (1999) 3 NWLR (pt. 593) 59 at 77; Ogunbayo v. The State (2007) FNWLR (pt. 1035) 157 at 185; Ishola v. State (1978) 9 – 10 SC 81; Onyegbu v. State (1994) 1 NWLR (pt. 320)
328; Akalonu v. State (2000) 2 NWLR (pt. 643) 165.
Having considered what was put forward before the Court below by the Respondent/Prosecution the defence put up by the Accused/Appellant would be considered. This is, bearing in mind the constitutional right of an accused.
An accused person has the constitutional right to remain silent and leave the trial to the prosecution to prove the charge against him. This is because the citizen’s right to remain silent even when arraigned for a criminal offence is an inviolable one. The prosecution is bound to prove its case beyond reasonable doubt but accused runs a risk in remaining silent. As he is obliged to make his defence to the charge if his remaining silent will result in his being convicted on the case made against him by the prosecution. Igabele v. State (2006) 6 NWLR (pt. 975) 100 at 133; Utteh v. State (1992) 2 NWLR (pt. 223) 257; Okoro v. State (1988) 5 NWLR (pt. 94) 255.
A trial court is bound to consider, however stupid, the defence of an accused person more so in a case as serious as the one before court. The court is enjoined to consider all available legal defences whether raised directly or remotely by the accused person, in the interest of justice before the trial court finds for or against the accused. In this regard is the fact that PW2 not being a virgin at the time of her medical examination and in the view of the defence should knock out the offence of rape, is a clear shut in the dark without hitting a target. With the other points especially of the several acts of violation of the PW2 ranging between 2004 and 2005, talking of virginity would not avail the accused as it became irrelevant in the circumstance. Ifejirika v. The State (1999) 3 NWLR (pt. 593) 59; Okeke v. State (1995) 4 NWLR (pt. 392) 676; Peter v. State (1994) 5 NWLR (pt. 342) 45 at 74 – 75.
In the case in hand, the Appellant as accused in the Court Martial did not help himself when he set out for an outright denial, then made the serious admission under cross-examination of the birth marks referred to by the prosecutrix which was confirmed by the PW5 and her Medical Report. His witnesses did not dignify his case in the least as they set out with brazen lying which was of no use to him in view of the rock steady evidence of the prosecution, thereby virtually leaving the field open for the prosecution’s evidence to reign unchallenged.
The Appellant had made reference to contradictions in the evidence of the prosecution which the Respondent countered, stating that they were not of a material nature that could hurt the prosecution’s case, I agree. The fact that, the prosecutrix said the birth marks were on the left side thigh of the Accused/Appellant and the PW5 said, it was on the right side was insufficient as an inaccuracy as to discredit either the witnesses or the piece of evidence as what was material was that such marks existed and in the very secret and private part of the Appellant which could only be seen when he is undressed. Therefore, that he had undressed himself before the PW2 is no longer in doubt and the PW5, medical doctor only saw it when Appellant was undressed before her during the medical examination.
It needs no saying that, it is not every inaccuracy in the testimonies of prosecution witnesses that will render such testimonies unreliable. For contradictions in the evidence of prosecution witnesses to be material and capable of rendering the evidence unreliable and not capable of being acted upon such contradictions or inconsistencies, must relate to the material ingredients of the offence charged. The contradictions must be substantial and fundamental to the main issue for them to be fatal to the prosecution’s case. Minor inaccuracies and discrepancies that, do not touch the justice or substance of a case should not be sufficient ground to disturb a judgment; as in the issue of whether or not the prosecutrix is the daughter or step daughter of Helen Waziri, the Complainant Igabele v. State (2006) 6 NWLR (pt. 975) 100 at 120, 132 (SC); Ehot v. State (1993) 4 NWLR (pt 290) 644; Ndike v. State (1994) 8 NWLR (pt. 360) 33; Onubogu v. State (1974) 9 SC 1; Okeke v. State (1995) 4 N/WLR (pt. 392) 676.
Whether the prosecutrix is a minor or an adult, to secure a conviction for rape, there must first be proof of penetration of the vagina and the penetration must be linked with the accused. Clearly, these essential ingredients of the offence of rape have been established by the prosecution beyond all reasonable doubt. There has been no question of a reliance on speculations rather than raw evidence which was adequately tested, scrutinized and accepted by the trial court. See Jegede v. State (2001) 14 NWLR (pt. 733) 264; Igabele v. State (2006) 6 NWLR (pt. 975) 100 at 119; Okoko v. State (1964) 1 All NLR 423; Seismograph Service (Nig.) Ltd v. Ogbeni (1976) 4 SC 85.
Having considered the totality of all that was placed before this Court including the Record of Appeal from where the evidence placed before the General Court Martial was perused; it is evident that there is no basis for this appeal which lacks merit as the decision of the Court below is without fault. This appeal is dismissed.
I affirm the decision, conviction and sentence of the Court below.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord, MARY U. PETER-ODILI, J.C.A, just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that this appeal lacks merit and it is dismissed by me.
ABDU ABOKI, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, Mary U. Peter-Odili, J.C.A. I agree with his Lordship that this Appeal lacks merit and I also dismiss it whilst affirming the decision, conviction and sentence of the General Court Martial of the Nigerian Army sitting in Abuja.
Appearances
Chief O. J. Onoja, M. A. Ebute;
D. A. Omachi, Fanokun Adedamola, E. O. AgadaFor Appellant
AND
S. M. Rilwanu, E. N. AguFor Respondent
