EMMANUEL TOMETIM v. THE STATE (2014)

EMMANUEL TOMETIM v. THE STATE

(2014)LCN/7065(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/EK/64/C/2013

RATIO

INGREDIENTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF RAPE

For the prosecution to succeed in proving the offence of rape, it must prove the following:-
(a) That the accused had sexual intercourse with the prosecutrix.
(b) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation deceit or impersonation.
(c) That the presecutrix was not the wife of the accused.
(d) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix consented or not.
(e) That there was penetration.
See: OGUNBANJO V. STATE (2007) 8 NWLR (PT. 1035) 157; UPAHAR V. STATE (2003) 5 NWLR (PT. 816) 230. STATE v. OJO (1980) 2 NCR 391, OKOYOMON V. STATE (1973) 1 SC 21, STATE V. ANOLUE (1983) 1 NCR 71, IKO V. STATE (SUPRA).
The most essential ingredient of the offence of rape is penetration, however slight. Penetration, with or without emission, is sufficient even where the hymen is not ruptured. The slightest penetration will be sufficient to constitute the act of sexual intercourse.

As a matter of law, corroboration of the evidence of the victim of rape is not required. However, where the accused denies the charge, the best evidence of corroboration that a court must look for are;
(a) Medical evidence showing injury to the private part or to other parts of the body of the prosecutrix which may have been occasioned in a struggle; or
(b) Semen stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed.
See: I.G.P. V. SUNMONU (1957) WRNLR 23, STATE v. OGWUDIEGWU (1968) NMLR 117. PER PAUL ADAMU GALINJE, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

EMMANUEL TOMETIM Appellant(s)

AND

THE STATE Respondent(s)

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): The Appellant herein, was arraigned before the Ekiti State High Court sitting at Ado-Ekiti on a two counts charge of rape and murder on the 7th day of March, 2011, under Sections 358 and 316 of the Criminal Law Vol. II Laws of Ondo State, 1978 as applicable to Ekiti State respectively. These offences were alleged to have been committed on or about the 17th of August 2006 at Oke-Sele Farm, Igirigiri, Ado-Ekiti in Ekiti State.

When the charge was read and explained to the Appellant, he pleaded not guilty to the two counts.
In order to establish its case, the Respondent herein called three witnesses while the Appellant gave evidence in his defence and called no further evidence. Thereafter, learned Counsel on both sides addressed the Court. In a reserved and considered judgment which was delivered on the 14th January, 2013, Akintayo, J., found the Appellant guilty on both counts and sentenced him to life imprisonment on count one, and death by hanging on the 2nd count.

It is against that decision that the Appellant has brought this appeal. His notice of appeal dated 12th day of April, 2013 and filed the same day contains six grounds of appeal. This notice of appeal is at pages 59-65 of the printed record of this appeal.

Parties filed and exchanged briefs of argument. At page 5 of the Appellant’s brief of argument dated and filed on the 18th November, 2013, four issues were formulated for determination of this appeal. I reproduce hereunder those issues as follows: –
i. Whether the learned trial Judge was not wrong when His Lordship held that the prosecution has proved its case beyond reasonable doubt and afortiori convicted and sentenced the Appellant, having regard to the oral and documentary evidence placed before the trial court.

ii. Whether the learned trial Judge was right when His Lordship accorded full evidential value to Exhibits C, F and G1 – G3 and held that the appellant was the one in Exhibit G1 – G3 and that Exhibit C is a confessional statement voluntarily made by the Appellant.

iii. Whether the learned trial Judge was not correct when His Lordship held that it is not compulsory to tender a Medical Report, having regard to the circumstances surrounding the demise of the deceased.

iv. Whether the learned trial Judge was not wrong when His Lordship held that the defence of alibi cannot avail the Appellant in this case when the necessary materials were available to investigate the alibi and the Police failed to do so.

Issues 1, 2, 3 and 4 were said to have been formulated from grounds 5, 2 and 3, 1 and 4 respectively. No issue is formulated from ground six, it is therefore deemed abandoned.

For the Respondent, four issues were formulated at page 3 of the Respondent’s brief of argument dated and filed on the 5th of February, 2014, but deemed filed and served on the 6th of February, 2014. They read as follows:-
1. Whether the learned trial Judge was not right in holding that in the circumstances of this case, the tendering of a medical report of the cause of death of the deceased was unnecessary.

2. Whether the learned trial Judge was not right in admitting and relying on the Appellant’s confessional statement ‘Exhibit C’ and ‘Exhibit F’, ‘G – G3’ to ground his conviction.

3. Whether the learned trial Judge was not right in holding that the defence of Alibi raised by the Appellant on trial could not avail him.

4. Whether the trial Judge was not right in holding that the Respondent proved the charges of rape and murder of the deceased beyond reasonable doubt against the Appellant.

Issue one is distilled from ground 1, issue 2 from grounds 2 and 3, issue 3 from ground 4 while issue 4 is distilled from ground 5 and 6th ground which has been abandoned.

The issues formulated by both parties are similar, in that they all deal with evaluation of evidence and ascription of probative value to such evidence.

I have carefully read the judgment of the lower court and the submissions of Counsel on either side in their respective briefs of argument, and I am of the firm view that the only issue calling for determination of this appeal is whether the prosecution has proved its case beyond reasonable doubt as to warrant a decision in its favour.

Before I consider the argument canvassed by learned Counsel for the respective parties, I wish to recount in brief the facts of this case which are straightforward and simple.

One Mr. Amos Kumolalo, who testified at the lower court as PW1 is the husband of the deceased. He and his wife were tenants in the farm of Stephen Akinyede where the appellant was also a tenant. On the 17th August, 2006, PW1 left for his farm, after having instructed his deceased wife to join him later to collect some tuber of yams for a Nurse who had earlier treated their sick child. He waited for sometime in the farm expecting his wife who did not show up. He decided to come home with some tubers of yams. On the way home, he saw some blood that was scattered all over. He decided to find out what led to the blood spill. He traced the blood to the body of his wife, Funmilayo who had been murdered and deposited in the bush. According to PW1, he noticed matchet-cut on her head and both sides of the neck. In a further evidence by PW1, he claimed that the Appellant had sexual intercourse with his wife after killing her, because when he saw her corpse, her legs were wide and a man’s semen was coming out from her vagina.

In arguing this appeal, Mr. R.O. Balogun, learned counsel for the Appellant submitted that the evidence adduced by the prosecution was not cogent, pungent, concrete, convincing and concrete to sustain the grievous offences of rape and murder. In aid, learned Counsel sited AIGUOREGHIAN V. STATE (2004) 1 SC (PT. 1) 65 at 103 PARAGRAPHS 10-40; AKPAN V. THE STATE (1994) 9 NWLR (PT. 368) 347; AKINFE V. THE STATE (1988) 3 NWLR (PT. 85) 729; OGHA V. THE STATE (1992) 2 NWLR (PT. 222) 164; MBANG V. THE STATE (2011) FWLR (PT. 562) 1766 and ADEYEYE V. THE STATE (2011) FWLR (PT. 562) 1753 at 1760 PARAGRAPHS A – D.

In a further argument, learned counsel submitted that if anybody should be suspected of the death of the deceased, it should be PW1 who was last seen with his wife and was first to find the dead body. He urged that the court should hold that it is PW1 that killed his wife instead of the appellant. Learned Counsel recounted the testimonies of the prosecution witnesses in brief and concluded that it was not established that the Appellant’s action did cause the death of the deceased, as the Appellant was challenged for the first time at the Police Station when he went to see his brother who was arrested by the Police. Finally on the issue of murder, learned Counsel urged the Court to acquit the Appellant as the Respondent has woefully failed to discharge the burden placed on it to secure a conviction for murder.

On the 2nd charge for rape, learned Counsel submitted that the prosecution has failed woefully to establish the ingredients of the offence as enumerated in EZIGBO V. STATE (2012) ALL FWLR (PT. 638) 847; ADEOTI V. STATE (2009) ALL FWLR (PT. 454) 1450; OGUNBAYO V. STATE (2007) ALL FWLR (PT. 365) 408 at 425 PARAGRAPHS G – H; UPAHAR V. STATE (2003) 6 NWLR (PT. 816) 230. It is the learned Counsel’s further submission that PW1, the husband of the deceased, by doctrine of last seen, should be the suspect and not the Appellant as he was the last person seen with the deceased before her death and he was also the first to locate her corpse. In aid, the authority in MBANG V. THE STATE (2011) NWLR (PT. 562) at PARAGRAPHS E – F. Still in argument, learned Counsel submitted that the circumstantial evidence upon which the Court convicted the Appellant is not positive and direct enough to sustain the conviction, since the Appellant denied making the confessional statement, Exhibit C which was attributable to him and ownership of Exhibit F, which is the Cutlass that was allegedly used in killing the deceased. In support, learned Counsel cited ABACHA V. STATE (2002) 11 NWLR (PT.779) 437.

Learned Counsel went on to argue that the proof of evidence and other documents attached in support of the information preferred against the Appellant did not disclose any prima facie case and that the Court was precluded from going out of the proof of evidence to establish a case against the Appellant. Learned Counsel found fault with the evidence of PW3 who was not listed as witness in the proof of evidence, and through whom Exhibits C, D, E and F were tendered and admitted. It is also the submission of learned Counsel for the Appellant that the failure to call the 6th prosecution witness who was so listed in the proof of service and non-tendering of the autopsy result calls for invocation of Section 167(d) of the Evidence Act, 2011.

On the admission of Exhibit C, the confessional statement of the Appellant which was relied upon heavily by the lower court in finding the Appellant guilty, learned Counsel submitted that the learned trial Judge was wrong both in law and in fact to have accorded evidential value to the said exhibit as its admission was strongly opposed by the defence Counsel. Learned Counsel contended that the Respondent failed to establish that the Appellant is the maker of the exhibit. In support, learned counsel cited OLATUNBOSUN v. STATE (2011) ALL FWLR (PT. 555) 304 AT 337 PARAGRAPHS D-G.

On Exhibit F, which is a Cutlass that was allegedly used to kill the deceased, learned Counsel argues that the learned trial Judge admitted the exhibit when he had formed opinion that it was the Appellant that killed the deceased.

According to the learned Counsel, the trial Court had predetermined the matter in the ruling that led to the admission of this exhibit, and this is contrary to the decision in C.E.O, EKIADOLOR V. OSAYANDE (2011) FWLR (PT. 566) 504 at 527. Finally on exhibit F, learned Counsel submitted that a Cutlass is a working tool of a Labourer, and if any Cutlass with blood stain was found in the house of the Appellant, the appropriate thing to do would have been to subject such Cutlass to a forensic test to determine whether the blood was that of a human being.

On Exhibits G – G3, which were photographs which form part of the evidence relied upon by the trial court, learned Counsel submitted that they were wrongly admitted and relied upon because the Appellant was not the maker of the Photographs which were not included in the proof of evidence. In a further argument on this score, learned Counsel submitted that the trial court having refused to admit similar Photographs earlier, ought to have refused Exhibits G – G4 in a similar manner. Learned Counsel urged this Court to expunge Exhibits C, F and G – G3 as they were wrongly admitted by the trial Court.

Finally on Exhibits G – G3, learned Counsel urged this court to hold that even if they were rightly admitted, there was nothing in these Exhibits that shows when the Appellant was strangulating the deceased or holding any Cutlass to kill the deceased. On the Respondent’s failure to tender medical report, learned Counsel submitted that the learned trial Judge was wrong when he held that tendering of Medical Report is not mandatory in the circumstances of this case. In a further argument, learned Counsel submitted that in this particular case, Medical report of post mortem examination or autopsy conducted on the deceased is not only necessary, but compulsory to prove the allegations contained in the proof of evidence in support of the information contained at Pages 3 – 4 of the Record of Appeal, particularly the evidence of the 4th prosecution witness which showed that autopsy was carried out on the deceased by one Dr. Idowu. According to the learned Counsel, the Respondent withheld the medical report because its content will be favourable to the Appellant. On this score, learned Counsel calls on this Court to invoke the provision of Section 149(d), now Section 167(d) of the Evidence Act, 2011. In aid, learned Counsel cited FAYEMI V. ONI (2011) ALL FWLR (PT. 554) at 55-56 PARAGRAPHS B – D; NWOLE V. INUAGWU (2004) FWLR (PT.200) 1604; (2005) 16 NWLR (PT. 952) 543.

On the defence of alibi which was raised by the Appellant, learned Counsel submitted that the learned trial Judge was wrong in his finding that the defence was not raised by the Appellant until he gave his evidence in Court. According to the learned Counsel, the Appellant raised this defence timeously, when at the Police Station he said he was not at the scene of the crime. Learned Counsel cited the case of SUNDAY V. THE STATE (2010) 5 – 7 SC (PT.11) 156 at 186 where Tabai, JSC, defined the defence of alibi and contended that it was the Police that failed to investigate the defence as such the Appellant on this alone would have been discharged and acquitted. In aid, learned Counsel cited SHEHU V. STATE (2010) 2-3 SC (PT.11) and STATE V. AZEEZ & 5 ORS (2008) 4 SC, 203.
On the whole, learned Counsel urged this Court to allow the appeal, and enter a verdict of acquittal for the Appellant.

For the Respondent, Mr. Dayo Apata, learned Solicitor General of Ekiti State, leading Adeniyi Familoni, Esq., learned Director of Public Prosecution and Onipede Akinola Olufemi, Esq., Legal Officer, all of the Ministry of Justice, who also settled the Respondent’s brief of argument submitted that on the face of the evidence before the trial Court, production and tendering of medical report was unnecessary.
Learned Counsel made reference to the testimonies of PW1, PW2, PW3 and further submitted that these witnesses who had the opportunity of observing the nature of injury on the deceased and testified to same before the lower court, had clearly disclosed the nature of the injury which clearly led to the conclusion that the cause of death of the deceased was deducible from such injuries. According to the learned Counsel, where the cause of death is known or is obvious from the nature of injury inflicted, coupled with the free, direct, unfettered, positive and voluntary confessions made by an accused person, the Court may convict on them without the need for medical evidence. In aid, learned Counsel cited IGAGO V. STATE (2001) 2 ACLR 104 at 127; ADEKUNLE V. STATE (2006) 14 NWLR (PT.1000) 717; EDIM V. STATE (1972) 4 SC 160; OKO AGWU AZU V. THE STATE (1993) 6 NWLR (PT.291) 303; LORI v. STATE (1980) 8 – 11 SC 81.
In a further argument, learned Counsel submitted that the learned trial Judge was right when he admitted the confessional statement of the Appellant in evidence, despite an attempt by the Appellant to retract exhibit C. In aid, learned Counsel cited GODWIN IKPASA V. BENDEL STATE (1981) 9 SC 7 at 28; OGUNYE V. STATE (1999) 5 NWLR (PT.604) 548 at 570.
On admission of Exhibits G -G3, learned Counsel submitted that the Appellant himself prepared the ground for their admissibility on Page 21 of the record and that the documents were relevant to the case. In aid, learned counsel cited ARAKA v. EGBUE (2003) 17 NWLR (PT.484) 1.
On the defence of alibi, learned Counsel submitted that even if there was such defence, same has been demolished by the Appellant’s confession and the circumstantial evidence furnished by the recovering of the Cutlass he used in killing the deceased. Learned Counsel made reference to a part of the confessional statement and submitted that the pieces of evidence effectively fixed the Appellant to the scene of crime apart from his confessional statement which has equally demolished the defence of alibi purportedly raised by the Appellant. In aid, learned counsel cited SUNDAY v. STATE (2011) ALL FWLR (PT.568) 922 at 940 PARAGRAPHS B – C.

On whether the learned trial Judge was right in holding that the Respondent proved the charges of rape and murder of the deceased beyond reasonable doubt against the Appellant, learned Counsel submitted that the prosecution, even though called only three witnesses, proved by confessional and circumstantial evidence the ingredients of the alleged offences. Learned Counsel listed ingredients of offences of murder and rape and cited OMOTOLA V. STATE (2009) 8 ACLR PAGE 29 at 144; LORI V. STATE (1980) 8 – 11 SC 81 and POSU V. STATE (2011) 3 NWLR (PT.1234) 396 in support of their submission. In a further submission, learned Counsel referred to the testimonies of the prosecution witnesses, Exhibit C, and the fact that the Appellant directed the Police to where the Cutlass with which he committed the offence was found, and contended that the evidence of only one credible witness of the prosecution is sufficient to ground a conviction on a charge of murder, particularly where the evidence is material enough to be capable of being believed. In aid, the authorities in NIGERIAN ARMY V. LAMBERT (2008) 1 WLR 1; JUA V. STATE (2010) 1 WRN 1 at 26; AKPAN V. STATE 12 NWLR (PT.682) 637 and AFOLALU V. STATE (2010) 16 NWLR (PT.1220) 584 at 613 were cited.
Finally, learned Counsel urged this Court not to interfere with the evaluation of the evidence before the lower court and ascription of probative value to such evidence because it is not the business of this Court to do so. Learned Counsel cited OLAIYA V. STATE (2010) 29 WRN 41 at 47; IGAGO V. STATE (SUPRA) at 122 in support and urged this court to dismiss the appeal in its entirety.

I wish to start by clearly pointing out that the offences for which the Appellant was charged and convicted carry the maximum sentences known to our criminal jurisprudence. Even at the risk of repetition, I wish to reiterate that the Appellant was sentenced to life imprisonment for the first count and death by hanging on the 2nd count. It follows therefore that before a Judge will reach such a decision in which someone’s life is at stake, he must be absolutely sure that the prosecution has proved beyond reasonable doubt the guilt of the accused person. For the law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See: SECTION 138(1) and (2) of the EVIDENCE ACT, 1990; or SECTION 135 (1) and (2) of the EVIDENCE ACT, 2011; ADAMU V. A.G. OF BENDEL STATE (1986) 2 NWLR (PT.22) 284; AKPAN V. THE STATE (1990) 7 NWLR (PT.160) 101; OJUKWU V. MILITARY GOVERNOR OF LAGOS STATE (1985) 2 NWLR (PT.10) 806; ATOYEBI V. OLUDU (1990) 6 NWLR (PT.157) 384; AYUB-KHAN V. THE STATE (1991) 2 NWLR (PT.172) 127.

Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Flowing from the above therefore, the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt, and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See: ALABI V. THE STATE (1993) 7 NWLR (PT.307) 511 at 531 PARAGRAPHS A – C; SOLOLA V. THE STATE (2005) 5 SC (PT.1) 135.

In MUFUTAU BAKARE V. THE STATE (1987) 3 SC 1 at 32, Oputa, JSC, defined ‘proof beyond reasonable doubt’ in the following words: –
“Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice.”
In the case of OKERE V. THE STATE (2001) 2 NWLR (PT.697) 397 at 415 – 416 PARAGRAPHS H – A, this Court had this to say on the meaning of ‘proof beyond reasonable doubt’: –
“Proof beyond reasonable doubt of a criminal charge does not mean proof beyond all shadow of doubt and it is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. Consequently if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible but not in the least probable the case is proved beyond reasonable doubt.”
See: BOLANLE V. THE STATE (2005) 1 NCC 342 at 359.

Where the prosecution fails to prove the case beyond reasonable doubt, the accused must be discharged and acquitted.

The learned trial Judge in his finding that the Appellant is guilty of the offences for which he is charged, relied heavily on the evidence of PW1, PW2 and PW3 and exhibit C, which is the confessional statement of the Appellant. At Page 57 paragraph 4 of the printed record of this appeal, the learned trial Judge held: –
“I have subjected the statement of the accused person to the various tests by comparing it with the evidence on record in this case. I am of the firm view that the accused person’s confessional statement passed all the required test so much so as to make it safe for the court to act on it.
With my finding of facts on issue four, I hold the firm view that exhibits C, E and G-G3 are very relevant to this case and I accord them full evidential value. When the said exhibits are married to the facts proved in this case, they all point to one irresistible conclusion, that it was the accused person and nobody else that raped and killed the deceased.”

I have raised one issue only which I think is capable of determining this appeal. The issue which has been reproduced elsewhere in this judgment has to do with whether the prosecution has proved its case beyond reasonable doubt. In order to do justice to this issue, I wish to make reference to the prosecution witnesses’ pieces of evidence. The first port of call is the testimony of the 1st prosecution witness, who is the husband of the deceased. His name is Amos Kumolalo. In his statement to the Police after the death of his wife, which was admitted in evidence as ID1, he stated as follows: –
“The second day 17/8/2006 which was Thursday at about 2:30 pm, I called my wife that I would be going to farm. That she should meet me in the farm to collect food home. I asked her to come and meet me an hour after I have left to the farm. When I did not see her when the hour had gone, I carry small yam that can serve us for a night. I then decided to be coming home.”

Part of the evidence of the 1st prosecution witness at page 9 of the record reads thus: –
“I remember the 17 day of August, 2006. On that day my wife came to the town to sell yam and came with her baby for treatment in the hospital. When she came back to the farm she told me that the nurse attended to the child very well. I then asked her to follow me and collect 10 tubers of yam for the nurse. I went to the farm and asked her to join me. She did not come to the farm, and I was expecting her. I decided to be coming home with the few tubers of yam for our consumption….”

There is a wall of contradiction in the evidence of the 1st prosecution witness before the Court and his statement at the police Station. While in the statement at the Police Station, the wife was to collect the yams for their consumption at home, the story is different when the same witness testified before the Court. Again, PW1 testified at Page 10 that the Appellant confessed to the crime in his presence, but under cross examination on the same page, the witness said: –
“I was not present when Police obtained the statement of the accused person. I would not know how the statement was taken. When the accused person was brought to the Station, we went with the accused and Police to the farm where he recovered the cutlass he used in killing the deceased and the cloth he wore when he killed the deceased.”

In a case of murder such as the one Appellant was charged and convicted with, the prosecution must prove by credible evidence that:
1. That the death of a human being has actually taken place.
2. That such death has been caused by the Appellant.
3. That the act that led to the death of the deceased was done with the intention of causing death.
4. That the Appellant knew or had reason to know that death would be the probable consequence of his act.
See: OGUMO V. THE STATE (2011) NWLR (PT. 1246) 314; GIWA V. THE STATE (1996) 4 NWLR (PT.443) 375 at 337.

All the witnesses that testified in this case, including the Appellant have confirmed that the death of the deceased, a human being has taken place. However, the only evidence that tend to link the Appellant with the death of the deceased is the evidence of PW1 and Exhibit C, which is the confessional statement. I have highlighted some discrepancies between the statement of the 1st prosecution witness at the Police Station and his evidence before the court.

The evidence of PW1 is clearly based on suspicion, borne out of the story he was told by the deceased that the Appellant was ‘toasting’ her, and the fact that the Appellant suddenly ran to the farm where he and his wife were working three days before the wife was murdered. Suspicion, no matter how grave, great or strong, cannot amount to admissible proof that an accused person committed the alleged offence. Suspicion can therefore not ground a conviction of the accused person. See: ABRU V. STATE (2011) 17 NWLR (PT.1275) 1 at 24 PARAGRAPHS D – E; 27 PARAGRAPHS H – A; ONAH V. STATE (1985) 2 NWLR (PT.8) 465; IDOWU V. THE STATE (1998) 11 NWLR (PT.574) 354. Apart from the suspicious nature of the evidence of PW1, whose evidence is at pages 9 – 10 of the record of this appeal, he gave his sworn testimony in Yoruba language. There is no evidence that the testimony was interpreted into English language, the official language of the Court, yet the proceedings were recorded in English language. Even though this issue was not canvassed by any of the parties in their respective briefs of argument, it is settled that in all cases attracting capital punishment, it is incumbent upon the trial court to consider all the defences put up by the accused person, express or implied, in the evidence before the Court. No matter the level of defences whether they are full of pigment of imagination, fanciful, replete with porous lies or even doubtful, the court must not be wary to give them due consideration. Thus if from the totality of evidence, a particular defence avails the accused person in a criminal matter, he should be given the benefit of that defence notwithstanding the fact that he did not specifically raise it. However, the trial court is only under an obligation or duty to consider such defences open to an accused person as disclosed or supported by the evidence on printed record.

In MAIGARI V. THE STATE, (2010) 16 NWLR (PT. 1220) 439 at 481 PARAGRAPHS C-E, My Lord Oredola, JCA, had this to say:-
“In the case of KARUWA TAKIDA V. THE STATE (1969) 1 ALL NLR 270, the Supreme Court restated the general broad principles of law, that no Court is bound to speculate on what possible defences can avail an accused person before it. However, where in a trial for culpable homicide, the evidence suggests a line of defence, it is the duty of the trial court to consider and deal with that defence, whether or not the accused or his counsel expressly raised the defence by the legal terminology ascribed to it by lawyers.”

In the instant case, the learned trial Judge did not see anything wrong with the inconsistencies inherent in the testimony of PW1 at the Police Station and the evidence given by him in Court. Learned trial Judge did not also see anything wrong in his failure to record the name of the interpreter who interpreted the testimony of PW1 into the language of the Court. In EDOHO V. STATE (2010) 14 NWLR (PT. 1214) 651 at 695 PARAGRAPHS B-D, the Supreme Court, per Ogbuagu, JSC, said: –
“I therefore, apply the ‘inconsistency rule’ which rule is that where a witness makes an extrajudicial statement which is inconsistent with his later testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on which the Court can act.” See: EGBOGHONOME V. THE STATE (1993) 7 NWLR (PT. 306) 383; (1993) 9 SCNJ (PT.1) 1; STEPHEN EMOGA V. THE STATE (1997) 7 SCNJ 518 at 529.

In the proof of evidence at page 3 of the record of proceedings, the 1st prosecution witness is recorded as having said that on 17th August, 2006 at about 14.00 hours he told his wife to meet him at the farm to collect some yams for dinner. This is consistent with the extra judicial statement of PW1 and inconsistent with his evidence in court where he testified that the yams his wife was to collect in the farm were to be given to a Nurse who treated their daughter as a gift. Even though a mere discrepancy which is not so material to the case may not operate to discredit the witness, however, taken into account the collateral circumstance in which the evidence of the witness is speculative, such discrepancies go a long way to create serious doubt in the mind of the Judge which ought to work in favour of the accused.

PW1 gave evidence in Yoruba language. See page 9 of the record of proceedings. There is no evidence that the Appellant understands Yoruba. Even if he understood Yoruba, the language of the Court is English. It is the law that when an accused does not understand the testimony against him, by virtue of his inability to understand the language of the testifier, an interpreter must be provided for the accused at the expense of the State. This is in accord with Section 33(6) (e) of the Constitution of the Federal Republic of Nigeria 1999. In AJAYI V. ZARIA NATIVE AUTHORITY, (1964) 4 WNLR 61, where the witness gave evidence in Hausa in a matter where the Appellants did not understand Hausa, the Federal Supreme Court allowed the appeal on the ground that the Appellants did not have a fair trial because the proceedings of the Court were inadequately and incorrectly interpreted to them.
In the STATE V. BOKA (1982) 1 NCR 85 at 85-96, the Respondent was acquitted of culpable homicide not punishable with death. The state appealed against the acquittal, the Court of Appeal, in dismissing the appeal, held inter alia that failure of the trial Judge to record the language in which the charge was read and to certify that the proceedings were interpreted to the Respondent were in breach of Section 241 of the CPC and Section 33 (6) (e) of the 1979 Constitution of Nigeria.

For the reasons I have stated herein above, I find the evidence of PW1 not properly grounded. The Learned trial Judge was therefore wrong to have accorded probative value to such evidence.
PW2 is a Police Inspector through whom Exhibit ‘B’, ‘C’, ‘D’, and ‘F’ were tendered and admitted. Exhibit ‘B’ is the statement of this witness, while Exhibit ‘C’ is the Confessional Statement of the Appellant, Exhibit ‘D’ is the bowl admittedly belonging to the deceased while Exhibit ‘F’ is the Cutlass with which the deceased was allegedly killed. Some photographs and negatives were also tendered through this witness, but they were admitted and marked rejected, since this witness was not the Photographer that captured the photographs. All other documents except Exhibit ‘C’ were tendered and admitted without any objection. When the Confessional statement was tendered in evidence, learned Counsel for the Appellant raised objection to its admissibility on the ground that the Appellant denied making the statement and signing same. Since the objection was not to the voluntariness, the learned trial Judge rightly admitted it in evidence without going through the rigours of trial within trial.

Where in a criminal trial, a statement allegedly made by an accused person is challenged by denying ever making it, there is no issue of admissibility raised thereby and the court will be at liberty to admit it in evidence. The Court’s duty then would be in determining at the conclusion of the case whether or not the accused person made the statement. See: STATE V. SALAU (2011) 18 NWLR (PT. 1279) 883 at 905-906 PARAGRAPHS G-A; DAWA V. STATE (1980) NSCC 334; EHOT v. STATE (1993) 4 NWLR (PT. 290) 644; IKPASA V. A.G. BENDEL STATE (1981) 9 SC 7.

A free and voluntary confession by an accused person if direct, positive and satisfactorily proved is sufficient to ground a conviction, even if there is no corroborative evidence to establish the truth of the confession.
In the instant case, the Appellant strongly denied making the statement at the trial. His evidence is at pages 19-22 of the record of this appeal. In his evidence-in-Chief, the Appellant stated that he returned from the farm at about 6:00 p.m. on 16th August, 2006 and was told that his brother had been arrested and taken to Police Station. In the morning of 17th August, 2006, he went to the Police Station with some food and money to see his brother. It was when he got to the Police Station and introduced himself to a Police woman, that the Police woman told him that he was one of those that raped a woman to death. He was invited to sit down, and when he denied the allegation, he was asked to shut up. From that moment, the Appellant stated that he went through series of torture in Order to admit killing the deceased. When after three days, he did not compromise, they wrote a statement which they copied from his brother and forced his hand to write his name. The Appellant insisted that eight cutlasses were produced at the Police Station and he was asked to choose the one he used in killing the deceased, he refused to choose any. It was after 11 days he was transferred to the State CID.

Witness denied that he was running away as alleged by PW1 and PW2. According to him, he came to the Police Station voluntarily to see his brother. Under Cross-examination, the photographs and the negatives that were earlier rejected were now admitted despite similar objection that led to their rejection. They were now admitted as Exhibits G-G3. On the confessional statement, Exhibit C, the learned trial Judge had this to say at page 51 of the printed record thus:-
“The statement of the accused person Exhibit ‘C’ is confessional and the law is that the Court must consider certain factors before making use of the statement i.e. whether there is anything outside the statement to show that the statement was true. Whether the statement is corroborated; Whether the statements (sic) made in it are facts so far as it can be tested to be true, whether the accused has the opportunity of committing the crime, whether the confession is possible and whether the confession is consistent with the other facts already proved.
AKPAN V. STATE (2007) 5 ACLR; REGINAL V. SYKES 8 C.A.R. PAGE 23.
I have subjected the statement of the accused person to the various tests by comparing it with the evidence on record in this case. I am of the view that the accused person’s confessional statement passed all the required test so much so that the accused person’s confessional statement passed all the required test so much so as to make it safe for the Court to act on it”

I have read through the judgment of the lower court, and I have failed to see where the learned trial Judge subjected the statement of the accused person to the various test by comparing it with the evidence on record in this case. The learned trial Judge considered the duty placed on prosecution on Issue 1, attitude of Court to defences raised by the accused on Issue 2, absence of medical report on Issue 3, weight attached to Exhibits C, F, and G-G3 on Issue 4 and the defence of alibi on Issue 5. Where then did he compare Exhibit ‘C’ with the evidence in record, when even on Issue 6, learned trial Judge is still discussing whether medical report is necessary in the instant case.

The test for determining the truth or otherwise of a confessional statement is to seek any other evidence of circumstances which makes it probable that the confession is true. In this regard, the court would consider the guiding principles for the evaluation of confessional statement. These principles guiding evaluation of confessional statement as set out in SHURUMO V. STATE (2010) 16 NWLR (PT. 1218) 65 at 119 PARAGRAPHS E-G. Are:-
(a) Whether there is anything outside the confession to show that it is true;
(b) Whether the statement is corroborated;
(c) Whether the confession was consistent with other facts which have been ascertained and proved at the trial;
(d) Did the accused have an opportunity of committing the offence;
(e) Is the accused confession possible;
(f) Are the facts stated in it true so far as can be tested.
See: AKPA V. STATE (2007) 2 NWLR (PT. 1019) 500; UWAGBORE v. STATE (1980) 8-11 SC 236; UDOFIA V. STATE (1984) 12 SC 139; OJEGELE V. STATE (1988) 1 NWLR (PT. 71) 414.

In Exhibit C, the Appellant is recorded to have made the following admission:-
“I never intended to kill her after raping her but it was when she told me that she will report the rape and embarrass me that I killed her with a cutlass. The cutlass shown to me here at the CID office is the one that I used to killed (SIC) Amos Kumolalo’s wife, I could not remember the time I went to meet Taiwo Okpa at where we were assigned to work but we both returned home (Igirigiri village) at about 6:00p.m……. At about 8:00 a.m. of 18th August, 2006, I packed my belongings and running out of Igirigiri village when one Okada man who is an Ebira man saw me and arrested me and took me to the Police station at Ado-Ekiti where Taiwo Okpa was detained.”

This portion of the statement is consistent with the evidence of PW2, one Ojo Saliu of No. 53 Igirigiri, Ado-Ekiti, who said,
“On the 2nd day, I was taken (sic) food to my child at Ita-Eku and saw the accused person and he ran to the bush. When I got to the spot where he ran into the bush, I looked for him and I saw him. I asked him what he was doing there and he said that he was looking for something. I then asked him to come out and he did. I asked him where he was going with the bag in his hand……..”

From the Appellant’s confessional statement and the testimony of PW2, the Appellant was running away from Igirigiri with his bag, where is the bag in which he had packed his things and was running away? The evidence of PW2 that says the Appellant was running away was meant to strengthen the allegation that he was involved in the murder of the deceased. In order to establish this aspect, the bag in which he had packed his belongings would have been made part of the evidence to clearly show that the Appellant was on the run. In absence of such evidence that he had packed his belongings, it will be difficult to believe the story, as the Appellant in his evidence had clearly stated that he voluntarily came to the Police Station with garri, kulikuli (groundnut cake) and pure water as well as some money to see his brother who was in detention in connection with the alleged offence.
Also in Exhibit C, the Appellant admitted that a cutlass was shown to him at the Police Station which he identified as the cutlass that he used in killing the deceased. The only things that were recovered when on the 23rd August 2006, he was conducted by the Police to the scene of the crime were, a bowl, slippers and underwear skirt belonging to the deceased, which were received from him. However, the 3rd prosecution witness in his testimony in court stated as follows:-
“When we got to the scene, there was a matchet-cut in the neck and the head of the deceased person. A basin and a torn skirt were met on the scene. A statement was recorded from the suspect who admitted having committed the crime. The suspect then led the detectives to where he kept the matchet he used in killing the deceased. Police recovered the cutlass and treated as Exhibit. The suspect was taken before a superior Police Officer with his confessional statement. He confirmed that he made the statement voluntarily before the S.P.O. and his statement was endorsed accordingly. From our investigation, the basin belonged to the deceased together with the torn cloth. The cutlass belongs to the suspect.”

This story of how the cutlass was found by the Police is completely different from the way it was recovered in Exhibit C. PW3 in his evidence did not mention the exact place the cutlass was found. According to him, the suspect led the Police to where he kept the matchet, and the Police recovered it and treated it as Exhibit. Since the cutlass was said to belong to the Appellant, why did he not take it home? If he hid it in the bush, where exactly was the cutlass recovered? According to the Police, the basin and the torn skirt of the deceased were not hidden; they were met at the scene.

The way PW1 described how he met the corpse of his wife, does not fit into the description of a dead body that has been dragged and deposited away from the spot where the killing took place. According to Exhibit C, this is what is stated in Exhibit C:-
“I was with a sharp cutlass which I used to cut only her neck and she fell down. I removed her skirt and the bowl which she was carrying to a nearby bush and hid them. When I discovered that she had died, I took her from the road and hide her corpse in a bush. She did not carry other things apart from the bowl on her head.”

PW1, the husband of the deceased who first saw the corpse, narrated how he found the corpse in the following words:-
“He had sex with my wife after killing her. I knew he had sex with the deceased because of the position of her legs and the fact that her vaginal was wide open and man’s semen was coming out of the vaginal, her wrapper was folded and placed on top of her private part.”

Clearly, the Appellant is incapable of raping a dead person. If the woman died after the rape, and was removed from the site where the action took place and dumped somewhere else, PW1 wouldn’t have met the corpse in the same position as when the rape took place.

Finally on this issue of confessional statement, the Appellant’s evidence at the lower court amounts to a retraction of Exhibit ‘C’. A retraction of a confessional statement is not a bar to the conviction of the accused person. However, before that is properly done, the trial Court should evaluate the confession and the testimony of the accused person and all the evidence available. This entails the trial court examining the new version of events presented by the accused person which is different from his retracted confession and the court must consider the guiding principles for evaluation of confessional statement which I have set out elsewhere in this judgment. In OGUDO V. STATE (2011) 18 NWLR (PT. 1278) 1 at 32 PARAGRAPH E-F, 45-47 PARAGRAPH G-A, it was held that it was wrong for the trial court and the Court of Appeal to have been satisfied with the contents of Exhibit 1, a confessional statement, without applying the six way test by evaluating the confession and the testimony of the accused person and all the other evidence available. See: KANU V. R (1952) 14 WACA 30; MBENU V. STATE (1988) 3 NWLR (PT.84) 615; STEPHEN V. STATE (1986) 5 NWLR (PT. 46) 978; KOPA V. STATE (1971) 1 ALL NLR 150, ONUOHA V. STATE (1987) 4 NWLR (PT. 65) 331.

Where a trial Court decides to sentence an accused person to death solely on a retracted confessional statement, the statement must satisfy the basic fundamentals of a valid statement, to wit:-
(a) The cautionary words must be well written and signed.
(b) The body of the statement must be written by the accused person or by someone, usually a Police Officer, on the accused persons directive giving a detailed confession which will show clearly that he committed the offence for which he is charged;
(c) The statement must be endorsed by a superior Police Officer and signed by the accused person.
See: OGUDO V. STATE (SUPRA) at 30 PARAGRAPHS C-E.

The confessional statement Exhibit ‘C’ which the Appellant objected to when the said statement was to be tendered in evidence and retracted in his evidence-in-chief opened with the following cautionary words:-
“Having been duly cautioned in language that I am not obliged to say anything unless I wish to do so but whatever I say shall be take (sic) down in writing and may be given in evidence, voluntarily elect to state as follows:”

The investigating Police Officer that administered the cautionary word neither wrote his name nor did he append his signature. It is therefore trite that an unsigned document is a worthless paper. Therefore relying on an unsigned retracted confessional statement calls for extreme caution as very little or no weight should be attached to such a statement. In the instant case therefore, the lower court was wrong to have sentenced the Appellant to death solely on unsigned retracted confessional statement. Having therefore evaluated the evidence before the lower court, I am of the firm view that the Appellant is not guilty of the offence of murder.

On the charge for rape, I wish to state clearly that it is a forceful sexual intercourse with a girl or a woman without her consent to it.
The most important and essential ingredient of the offence is penetration of the victim’s vagina with the penis of the accused person. See: IKO V. THE STATE (2001) FWLR (PT. 68) 1161, (2001) 14 NWLR (PT. 732) 221, (2001) 7 SCNJ 382, where Ogbuagu, JSC, at page 426 paragraph A-B, said:
“It is now settled that in legal parlance 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 king 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.”
For the prosecution to succeed in proving the offence of rape, it must prove the following:-
(a) That the accused had sexual intercourse with the prosecutrix.
(b) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation deceit or impersonation.
(c) That the presecutrix was not the wife of the accused.
(d) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix consented or not.
(e) That there was penetration.
See: OGUNBANJO V. STATE (2007) 8 NWLR (PT. 1035) 157; UPAHAR V. STATE (2003) 5 NWLR (PT. 816) 230. STATE v. OJO (1980) 2 NCR 391, OKOYOMON V. STATE (1973) 1 SC 21, STATE V. ANOLUE (1983) 1 NCR 71, IKO V. STATE (SUPRA).
The most essential ingredient of the offence of rape is penetration, however slight. Penetration, with or without emission, is sufficient even where the hymen is not ruptured. The slightest penetration will be sufficient to constitute the act of sexual intercourse.

In the instant case, the only evidence of rape came from PW1, whose evidence was a mere speculation. According to the PW1, who first saw the wife after she was murdered, he found her vagina wide open and there was flow of male semen from the wife’s vagina. PW1 did not give his qualification and competence to pronounce any fluid from the body of the wife as human semen. The victim being dead was not in a position to give evidence as to what happened to her. It is only a medical report that would have suggested whether the deceased was raped or not. Clearly, medical report is essential to prove the offence of rape.

From the totality of the evidence before the lower court and the reasons I have set out in this judgment, I am satisfied that the two counts charge against the Appellant have not been established. The sole issue identified by me is resolved in favour of the Appellant. In the result, I find merit in this appeal which I allow. The conviction and sentence imposed on the Appellant by the lower court are hereby set aside and quashed. Appellant is hereby discharged and acquitted on both counts.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had a preview of the lead judgment of my learned brother, Paul Adamu Galinje, JCA just delivered. I agree with his reasoning and conclusion reached therein which I respectfully adopt as mine. I am thus of the firm viewpoint that the appeal should be allowed and it is accordingly allowed by me. I abide by the consequential orders embodied in the said lead judgment.

FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in advance the lead judgment just delivered by my Learned Brother PAUL ADAMU GALINJE, JCA. His Lordship has in his usual manner painstakingly considered and resolved the issues in contention in this appeal. I am in total agreement with the reasoning and conclusions resolved therein. I wish to make some comments.

This is an appeal against the judgment of Hon. Justice Akintayo delivered on the 14th January, 2013. The Appellant was charged with two counts of rape and murder under Section 358 and 316 of the Criminal Law Vol II Laws of Ondo State, 1978 as applicable to Ekiti State.

The matter went to trial and the prosecution called three witnesses while the Appellant gave evidence in his defence and called no further evidence. At the conclusion of trial, the Appellant was found guilty on both counts and sentenced to life imprisonment on count one, and death by hanging on the 2nd count.

I am of the considered view that, there is only one issue for determination in this appeal. That is whether the prosecution has proved its case beyond reasonable doubt.

It is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. By virtue of Section 138 (1) of the Evidence Act, where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore if in a criminal trial, on the whole of the evidence before it, the court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.

As I stated earlier, my Learned Brother has dealt with all the issues for determination in this appeal.
I agree with his Lordship that the two counts charge against the Appellant have not been established. I also resolve the sole issue identified for determination of this appeal in favour of the Appellant.

I find merit in the appeal which I also allow. The conviction and sentence imposed on the Appellant by the lower court are set aside and quashed. Appellant is therefore discharged and acquitted on both counts.

Appearances

Mr. R.O. Balogun, with T. Onifade, ESQ., I.K Iyanda, Esq., and J.O. Popoola, Esq.For Appellant

AND

Mr. Dayo Apata (S.G. M.O.J., Ekiti State) with A.E. Arogundade (L.O.), Miss O.J. Igboeli and Miss Yomi AdesojiFor Respondent