HABIBU MUSA VS THE STATE
(2013) LCN/4215(SC)
In the Supreme Court of Nigeria
Thursday, February 7, 2013
Case Number: SC.409/2011
RATIO
APPEAL: ATTITUDE OF THE COURT TOWARDS COGENT FINDING OF LOWER COURT
Also the concurrent findings being apt, cogent and hanging squarely on the evidence proffered by the prosecution, no reason exists to warrant an interference of this court into those findings. I refer to Posu v. The State (2011) 2 NWLR (pt.1234) 303 SC;
Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382 at 415 – 416 SC;
Onu v. Idu (2006) 12 NWLR (Pt. 995) 657 at 676 SC. PER MARY UKAEGO PETER-ODILI, J.S.C
EVIDENCE: PRINCIPLES GUIDING CONFESSIONAL STATEMENT
In that vein the judge would ask himself the following questions:
1. Is there anything outside the confession to show that it is true
2. Is it corroborated
3. Are the relevant statements made in it of facts, true as they can be tested
4. Was the prisoner one who had the opportunity of committing the rape
5. Is his confession possible
6. Is it consistent with the other facts which have been ascertained and have been proved
It needs be restated that this court, the apex court had decreed that a free and voluntary confession alone properly taken, tendered and admitted and proved to be live is sufficient to support a conviction once it meets with the six point test stated above.
Considering these guide lines laid down by this court and placed conually with the case in hand, the confessional statement of the appellant, Exhibit A is enough on itself to ground the conviction. I rely on the following cases:
Sule v. State (2009) 17 NWLR (pt. 1169) 33 at 60 SC;
Esboshonome v. State (1993) 7 NWLR (Pt. 306) 383 at 419 – 420
Nsofor v. State (2004) 18 NWLR (pt. 905) 292 at 310 – 311.
Dawa v. State (1980) 8 – 11 SC 236 at 267 – 168;
R v Sykes (1913) 8 CAR Appeal Report 233. PER MARY UKAEGO PETER-ODILI, J.S.C
CRIMINAL LAW: WHETHER ALL CONTRADICTIONS CAN VITIATE THE CASE OF THE PROSECUTION
Indeed the contradictions are understandable and of no importance not denting the body of evidence as required by law. See Princent v. The State (2002) 18 NWLR (Pt. 798) 49 (SC); Daggaya v. The state (2006) 7 NWLR (Pt. 980) 637 at 664 SC; Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349 at 376.
The situation is well captured by my learned brother, Fabiyi J.S.C. in Musa v. The State (2009) 15 NWLR (Pt. 1165) 465 at 489 in these words:
“It is not every miniature contradiction that can vitiate the case of the prosecution. Minor contradiction which did not affect credibility of witnesses will be of no avail to the appellant.” PER MARY UKAEGO PETER-ODILI, J.S.C
CRIMINAL LAW: ATTITUDE OF THE COURT TOWARDS RAPE
Rape in our society and indeed in any human society is a grave and serious offence committed by those people who are shameless, merciless and animalistic. I cannot imagine a situation where one wilt put aside his honour, integrity and humanness to over-power or lure a young girl of tender age to have her carnal knowledge. It is against common sense. It is against humanity and God the Creator will not allow such a bestial behavior to go unpunished even here in the mundane life. PER IBRAHIM TANKO MUHAMMED, J.S.C
JUSTICES:
IBRAHIM TANKO MUHAMMAD
JOHN AFOLABI FABIYI
MARY UKAEGO PETER ODILI
OLUKAYODE ARIWOOLA
KUMAI BAYANG AKAAHS
APPELLANTS
HABIBU MUSA
RESPONDENTS
THE STATE
(Delivered by KUMAI BAYANG AKA’AHS, JSC) I was privileged to read in draft the judgement of my learned brother, Peter – Odili JSC. I am in total agreement with the reasoning and conclusion that the appeal lacks merit and should be dismissed. The accused was tried on an amended charge which reads:- “That you Habibu Musa of Magashi Quarters Kano City on or about the 29th day of March 2003 at Galadanchi Quarters Kano within Kano Judicial Division PAGE| 15 committed the offence of rape to wit having sexual intercourse with one Fatima Muntari aged 5 years and thereby committed an offence punishable under Section 283 of the Penal Code, Laws of Kano State 1991” He pleaded not guilty to the charge. The prosecution called six witnesses and tendered four exhibits while the accused testified in his defence and called two witnesses. After reviewing the evidence adduced by the prosecution the trial Judge found the accused guilty and convicted him of the offence as charged and sentenced him to 14 years imprisonment. He appealed against the conviction and sentence to the Court of Appeal Kaduna Division. The lower court in a split decision of 2 – 1 dismissed the appeal and affirmed the conviction and sentence. This is a further appeal from that judgement. The appellant formulated four issues from the five grounds of appeal filed. The respondent adopted the issues as framed by the appellant. My learned brother, Peter – Odili JSC has dealt exhaustively with the issues raised in the appeal. I wish to add a word on two on the issue of penetration for emphasis which is covered by issue A in the appellant’s brief. The appellant submitted that in a prosecution for rape, it is the duty of the prosecution to prove that the accused had sexual intercourse with the prosecutrix such that the act of sexual intercourse was unlawful and that the prosecution must prove complete penetration and relied on Jos Native Authority vs Allah Na Gam (1968) NMLR There is no doubt that in a charge of rape penetration must be proved. In Jegede vs State (2001) 14 NWLR (Part 733) 264; (2001) 7 SC (Part 1) 122, Belgore JSC (as he then was) after defining the offence of rape as “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…………….” went on to state that rape is committed in circumstances set out above with clear evidence of penetration and who was responsible for it. In Jos N. A. Police vs Allah Na Gani (1967) NNLR 107; (1968) NMLR 8 the Northern State High Court sitting on appeal to review the conviction of Allah Na Gani for the offence of rape by the Chief Alkali Court Jos set aside his conviction and sentence on the ground that there is no evidence that Allah Na Gani committed rape on the girl whose age was put at 7 years. The court held that sexual intercourse is an essential ingredient of the offence of rape and the girl PAGE| 16 PAGE| 16 did not say that he had sexual intercourse with her; all she said was that “he pressed me (lied on me)”. I am of the firm view that the decision in that case ought to be reviewed. In a cultural setting such as Nigeria especially in the North and considering the age of the girl the expression used for sexual intercourse especially in rape is often couched in not too clear expressions. In the instant case the prosecutrix when giving evidence stated that the accused held her hand and took her to a room and removed her pant. That he climbed on top of her and he put something and mucus in her private part and that as he was putting the mucus she felt pain. The interference to be drawn here is that the accused had sexual intercourse with her. The appellant’s statement was recorded in which he admitted having sex with Fatima twice. Contrary to the submission by the appellant that there must be full penetration, the law is that penetration however slight is sufficient to ground conviction for rape. See: Posu vs State (2011) 2 NWLR (Part 1234) 393; Ogunbayo vs State (2007) 8 NWLR (Part 1035) 157. For this and the more detailed reasons contained in the lead judgement, I too will not interfere with the majority decision reached by the lower court. I fmd that the appeal has no merit and it is accordingly dismissed.
COUNSELS
C. I Enweluzo for the Appellant|Suraj Sa’eda Solicitor – General Kano State, with him; Aisha Mahmoud Chief State Counsel; Halima Ahmed Principal State Counsel; M. I. Ahmed Senior State counsel and Aisha Bello Salim for the Respondent.|
