HUSSEINI v. STATE (2022)

HUSSEINI v. STATE

(2022)LCN/16810(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, February 21, 2022

CA/K/131/C/2018

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

NAZIRU HUSSEINI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON UNTIL PROVEN GUILTY

Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that every person charged with a criminal offence shall be presumed to be innocent until his guilty is proved. The burden of proof with respect to criminal offences is on the prosecution who must prove the guilt of the accused beyond reasonable doubt. By that, the law insists that every ingredient of the offence with which the accused is charged must be proved by the prosecution. Failure to prove any of the ingredients would result in the acquittal of the accused person. See OBI VS. THE STATE (2013) 5 NWLR (PT. 1346) 68, BABATUNDE VS. THE STATE (2014) 2 NWLR (PT. 1391) 298 and SABASTINE VS. THE STATE (2020) LPELR 50319.
The burden placed on the prosecution is not beyond all shadow of doubt for absolute certainty is impossible in criminal trial except in certain exceptional situations. But once the evidence is so strong against an accused as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course is possible but not in the least probable”, the case is said to have been proved beyond reasonable doubt; in other words, this can be attained by proof of all the ingredients of an offence. See ISAH VS. THE STATE (2018) 8 NWLR (PT. 1621) 345; EZEANI VS. FRN (2010) 12 NWLR (PT. 1686) 231 and PHILIP VS. THE STATE (2019) 13 NWLR (PT. 1690) 209. PER LAMIDO, J.C.A.

WHETHER OR NOT
The prosecution is at liberty to prove its case by calling eyewitnesses to the commission of an offence, or by circumstantial evidence, or by a confessional statement made by the accused person. The prosecution can rely on any of the three modes or all of them in proof of its case. See ADIO VS. THE STATE (1986) 5 SC 94, ABIRIFON VS. THE STATE (2013) LPELR 20807; GARBA VS. FRN (2014) LPELR 74591 and MUSA VS. THE STATE (2014 LPELR 22912.

THE INGREDIENTS OF THE OFFENCE OF CONSPIRACY

The Appellant was convicted and sentenced for the offences of criminal conspiracy and rape contrary to Section 97 and 283 of the Penal Code. First on the offence of conspiracy, Section 96 (1) and (2) of the Penal Code provides that:-
96 (1) When two or more persons agreed to do or cause to be done
a. An illegal act; or
b. An act which is not illegal by illegal means such agreement is called a conspiracy.
(2) Notwithstanding the provision of Subsection (1), no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties of such agreement in pursuance thereof.
From the above, the offence of conspiracy is committed where there is an agreement between two or more persons not being husband and wife, to commit an illegal act or a legal act by illegal means.

THE CRIMINAL OFFENCE OF CONSPIRACY

In a charge of criminal conspiracy, it is the duty of the prosecution to prove the following ingredients:-
a. An agreement between two or more persons to do or cause to be done some illegal act, or some act which is not illegal by illegal means.
b. Where an agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in the agreement; and
c. That each of the persons actually and individually participated in the agreement.
See AKINKUNMI VS. THE STATE (1987) 7 NWLR (PT. 52) 606, ABACHA VS. FRN(2006) 4 NWLR (PT. 970) 239, SULE VS. THE STATE (2009) 17 NWLR (PT. 1169) 33, MUHAMMED VS. THE STATE (2010) LPELR 9019, IKARIA VS. THE STATE (2010) LPELR 4291 and ABIODUN VS. THE STATE (2019) LPELR 41399.
The offence of conspiracy is established once the evidence has shown that the criminal design alleged is agreed upon by all the parties. Proof of how the suspects are connected with or among themselves is unnecessary. The conspirators need not know each other. The bottom line of the offence is the meeting of the minds of the conspirators. See NWOSU VS. THE STATE (2004) 15 NWLR (PT. 897) 466 and ABRAHAM VS. THE STATE (2017) LPELR 42873.
It is always difficult to prove the offence of conspiracy as is done in other offences. Proving conspiracy is in most cases a matter of inference from acts of the parties or from surrounding circumstances in any given case. The trial Court can convict if satisfied on the available evidence that the various parts played by each of the accused persons culminated into the alleged crime. See USUFU VS. THE STATE (2007) 3 NWLR (PT. 1020) 94; TANKO VS. THE STATE (2008) 16 NWLR (PT. 1114) 597 and YAKUBU VS. THE STATE (2014) 8 NWLR (PT. 1408) 111.
Invariably, because conspiracy is mostly determined by making references from the circumstances of a given case, the proper approach to an indictment which contains charge of conspiracy and a substantive charge is to deal with substantive charge first and then proceed to see how the conspiracy count has been made out in answer to the fate of the charge of conspiracy. See JIMOH VS. THE STATE (2014) 10 NWLR (PT. 1414) 105, AGUGUA VS. STATE (2017) 10 NWLR (PT. 1573) 254, BALOGUN VS. THE STATE (2018) LPELR 44215 and OLADEJO VS. THE STATE (2018) LPELR 44310. The offence of rape will in the light of the above be considered first. PER LAMIDO, J.C.A.

INGREDIENTS OF THE CRIMINAL OFFENCE OF RAPE

In a charge of rape contrary to Section 283 of the Penal Code, the prosecution must prove the following ingredients of the offence:-
a. that the accused has sexual intercourse with a woman or girl,
b. that the act was done in circumstances falling under any one of the five paragraphs in Section 282 (1),
c. that the woman was not the wife of the accused or if she was his wife that the she had not attained puberty,
d. that there was penetration.
All the listed ingredients must be proved by the prosecution before a conviction can be had.
Rape has been defined as unlawful carnal knowledge of a woman or girl by a man without her consent or with her consent if her consent was obtained by force or by means of threat or intimidation of any kind or by fear of harm or by means of false act or when the girl is below 14 years of age and in case of a married woman by impersonating her husband or has not attained the age of puberty. See POSU VS. THE STATE (2011) 2 NWLR (PT. 1234) 392. PER LAMIDO, J.C.A.

WHETHER OR NOT IT IS EVERY CONTRADICTION IN THE EVIDENCE OF A WITNESS THAT IS FATAL TO A CASE

A contradiction simply means a situation where a piece of evidence states the opposite of what another witness had affirmed or admitted or lack of agreement between two related facts. See OCHIBA VS. THE STATE (2010) LPELR 9002; USEN VS. THE STATE (2012) LPELR 20062 and EZE VS. THE STATE (2018) LPELR 43715. The effect of contradictory evidence is to render the whole evidence incapable of belief as a Court has a duty to reject contradictory evidence. See SOWEMIMO VS. THE STATE (2004) ALL FWLR (PT. 208) 95 and ICHE VS. THE STATE (2013) LPELR 22035.
However, not every contradiction in the evidence of a witness is fatal to a case. For a contradiction to have effect, it must relate to the material ingredients of the offence charged. It is therefore not every inaccuracy in the testimony of a witness that would render such evidence unreliable. Minor inaccuracies or discrepancies which do not touch on the substance of the case should not be allowed to constitute sufficient ground or reason to disturb the judgment of a Court on appeal. See IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100, BASSEY VS. THE STATE(2012) ALL FWLR (PT. 633) 1816 and DERIBA VS. THE STATE (2016) LPELR 40345. PER LAMIDO, J.C.A.

ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court delivered on 19th February, 2016 Coram: A.R.D. Muhammad, J. The accused person/Appellant was arraigned along with two others on two counts of criminal conspiracy and rape contrary to Sections 97 and 283 of the Penal Code respectively. The charges against the accused/Appellant read thus:
1. That you Naziru Hussaini of Gwale Quarters, Kano, Auwal Abdullahi of Medila Shagari Quarters Kano and Muntari Usman of Galadanchi Quarters Kano on or about the 24th day of March, 2013 between the hours of 10:00am and 6:00pm at Gwale Quarters within Kano Judicial Division agreed to commit an illegal act to wit: conspired to commit the offence of rape of one Farida Yusuf, aged 13 years old and the same act was committed pursuant to the agreement and you thereby committed an offence punishable under Section 97 of the Penal Code Laws of Kano State of Nigeria (CAP 105) 1991.
2. That you Naziru Hussaini of Gwale Quarters Kano, Auwalu Abdullahi of Medila Shagari Quarters, Kano and Muntari Usman of Galadanchi Quarters, Kano on or about the 24th day of March, 2013 between the hours of 10:00am and 6:00pm at Gwale Quarters within Kano Judicial Division committed the offence of rape by doing an act to wit: You had sexual intercourse with one Farida Yusuf, aged 13 years old, and you thereby committed an offence punishable under Section 283 of the Penal Code laws of Kano State of Nigeria (CAP 105).

The accused/Appellant pleaded not guilty to the charges whereupon the prosecution opened its case and called a total number of 6 witnesses and tendered in evidence 7 exhibits. The accused/Appellant testified in his defence and at the conclusion of hearing and addresses of Counsel the trial Court delivered a considered judgment convicting the accused/Appellant and sentenced him to 2 years and 14 years for the offences of conspiracy and rape respectively.

Dissatisfied with his conviction and sentence, the Appellant filed his notice of appeal on 26th April, 2016 containing 7 grounds of appeal. The grounds of appeal are hereunder reproduced:-
GROUND 1
The learned trial judge erred in law in convicting the 1st accused person even though there was a contradiction in the evidence of the witness.
GROUND 2
The learned trial judge erred in law in convicting the 1st accused person by admitting the 1st accused person’s statement in evidence even though the person who translate the statement from Hausa language into English the I.P.O. was not good in Hausa language. And the statement was taken not at the presence of the accused person’s Counsel, and the Court refused to conduct trial within trial.
GROUND 3
The learned trial judge erred in law in convicting and sentencing the 1st accused person by relying on the evidence of PW1, PW2, PW3, PW4 and PW5 and PW6 which their evidence before the Court are hearsay evidence.
GROUND 4
The learned trial judge erred in law in convicting and sentencing the 1st accused without credible witnesses.
GROUND 5
The learned trial judge erred in law in convicting and sentencing the 1st accused person without corroborating the testimony of the 2nd accused person.
GROUND 6
The learned trial judge erred in law in introducing the issue paternity of the victims child which resulted in giving an order for D.N.A. test without fully given an opportunity to both side to argue on it.
GROUND 7
The judgment of the trial Court in this case is against the weight of evidence.

The Appellant filed his brief of argument on 21/03/2018 but it was deemed filed on 23/11/2021. The Appellant formulated 3 issues for determination as follows:-
1. Whether the trial Court was right in convicting/sentencing the 1st convict even though there are some contradiction in the evidence of the witnesses.
2. Whether the learned trial judge was right in convicting and sentencing the 1st convict by admitting the 1st convict’s statement in evidence even though the person who translate the statement from Hausa language to English was not good in Hausa language.
3. Whether the judgment of the trial Court is against the weight of evidence and granting leave to call witness not listed by the prosecution and to take his evidence at the same time is a breach of the accused person’s fair hearing.

The Respondent’s brief of argument was filed on 05/11/2021 but deemed properly filed on 23/11/2021. The Respondent formulated a single issue for determination. The issue is as follows:-
Whether the Respondent has proved the offences of conspiracy and rape against the Appellant based on the testimonies of prosecution witnesses and his confessional statement.

In arguing issue one, learned Counsel for the Appellant Nasiru Abdurrahman, Esq., submitted that there is a contradiction in the evidence of PW2, PW4 and PW5. That while PW5 testified that during recording of the statement of the complainant she made mention of one Usman Ibrahim, a nurse at Kano that the Appellant took PW1 to him in order to abort the pregnancy. According to PW4, on 24th March, 2013 while PW1 narrated to PW5 that the Appellant took her to PW4 to abort the pregnancy, the case was reported to Sharada Police Division even before the Appellant too PW1 to PW4 because PW4 in his testimony stated that he was in the Chemist when the Appellant came with PW1 and one woman. He argued that the case was reported before the Appellant took PW1 to PW4 which is a contradiction of fact. He also stated that PW1 stated her age to be 14 years while PW3 stated the age of PW1 to be 13 years. According to Counsel, this is another contradiction. He referred to IKUEPENIKAN VS. THE STATE (2011) 1 NWLR (PT. 1229) 449. He however stated that for a contradiction in the evidence of a witness to vitiate a decision, it must be material and substantial as to cast doubt in the guilty of the Appellant. Minor contradictions are inconsequential. He referred to EKE VS. THE STATE (2011) 3 NWLR (PT. 1235) 593. He argued that in a case of rape, age of the victim will seriously affect the determination of the case.

He also stated that the victim was 14 years and have consented to the act but the trial Court preferred the evidence of PW3 that PW1 is 13 years and convicted the Appellant on such evidence. The contradiction on the age of the victim is material. Furthermore, he said reliance on the evidence of PW3 is not safe because the evidence is hearsay.

On issue two, he submitted that the evidence of PW2 on the manner in which the statement of the Appellant was recorded is instructive. In one breath PW2 stated that the statement of the Appellant was recorded in Hausa language and later translated into English language. However, under cross-examination he denied recording the statement of the accused person in Hausa language. He also stated that PW2 being Igala by tribe cannot properly translate Hausa statement into English.

On issue three, he stated that the trial Court failed to make any finding on the evidence of DW1 as to whether any defence is disclosed. He referred to GARUBA VS. YAHAYA (2007) 29 NSCQR 375.

In arguing the only issue for determination in the Respondents brief, learned Counsel for the Respondent Fatima G. Yakasai, Esq., submitted that in proving conspiracy the prosecution must prove agreement between two or more persons to do or cause to be done an illegal act or an act which is legal by illegal means. The conspirators need not all have started the conspiracy at the same time for some others may join at the later stage as the gist of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. He referred to NJOVENS VS. THE STATE (1973) 8 NSCC 257.

He also stated that a charge of conspiracy does not require direct proof but it is a matter to be inferred or deduced from the act of the Appellant and his co-accused who were apparently seen to be acting in agreement. He referred to BALOGUN VS. AG OGUN STATE (SUPRA) and NWANKWO VS. FRN (2003) 1 NWLR (P.T 809). He argued that the actual agreement or meeting of the minds of the Appellant and his co-conspirators is established by the testimony of PW1 and the confessional statement of the Appellant.

On the charge of rape, he submitted that for a conviction to be secured, the prosecution must prove the following ingredients beyond reasonable doubt.
(a) That the prosecutrix was raped and it was the accused that raped her.
(b) That the act was done in circumstances falling under any of the five paragraphs in Section 281(1) of the Penal Code.
(c) That the prosecutrix was not the wife of the accused person.
(d) That the act was done without her consent.
(e) That there was penetration.
He referred to EZIGBO VS. STATE (2012) 6 SCNJ 67.

He stated that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. Once the proof drowns the presumption of innocence, the Court is entitled to convict although there could be shadow of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea and the actus reus, the prosecution has discharged the burden placed on it by Section 139 of the Evidence Act, 2011. The reasonable doubt which will justify acquittal is a doubt based on the reasons and arising from the evidence or lack of it and it is a doubt which a reasonable man might entertain. He referred to ISMAIL VS. STATE (SUPRA), WOOLMINTON VS. DPP (1935) AC 462, MILLER VS MINISTER OF PENSIONS (1947) 3 ALL ER 373 and ISAH VS STATE (2017) LPELR 43472.

He submitted that it is in evidence that the prosecutrix was raped by the Appellant. This can be seen from the testimony of PW1 whose evidence was not shaken even under cross-examination. There was also contradiction in the age of the prosecutrix at the time of the commission of the offence. Therefore, the trial Court was right to hold that the prosecutrix was below 14 years of age at the time of the commission of the offence. For a contradiction to affect the case of the prosecution, it must raise a doubt as to guilt of the accused person, it must be fundamental touching on one of the ingredients of the offence. He referred to AKPAN VS. THE STATE (2008) NJSC 7 and EFFIONG VS. THE STATE (1998) 8 NWLR (PT. 562) 362. The contradiction mentioned by the Appellant’s Counsel relating to the dates when the offence was reported to the Police and when the appellant took PW1 to PW4 to abort the pregnancy are not substantial as it did not touch on the substance of the case or any of the ingredients therein.

On the confessional statement of the Appellant, he stated that it was admitted in evidence even though the Appellant objected to its admissibility on the ground that the Appellant did not sign it. That ground of objection is not capable of rejecting the confessional statement in evidence. He referred to OKPAKO VS. THE STATE (2018) LPELR 43875. And having been admitted in evidence it has become fact of the case of the prosecution. He referred to EGBOGHONOME VS THE STATE (1993) 7 NWLR (P.T 306) 383 and SUNDAY VS. THE STATE (2017) LPELR 42259.

He argued that the trial Court did not convict the Appellant on the strength of his confessional statement alone for the evidence of PW4 which was credible and uncontroverted corroborated the testimony of PW1. The trial Court is therefore entitled to believe and act on the pieces of evidence. The trial Court also rightly believed the evidence of all prosecution witnesses before finding the Appellant guilty as charged. He referred to NABATURE VS. MAHUTA (1992) 9 NWLR (P.T 263) 85 and MUSA VS. STATE (2009) 5 NWLR (P.T 1165) 467.

I have noted the various issues for determination formulated by parties to this appeal, I am of the considered view that the lone issue formulated by the Respondent is capable of resolving the arguments in this appeal. The issue will be adopted with a slight modification. The issue is:
Whether the Respondent proved the offences of conspiracy and rape against the Appellant based on the evidence adduced at the trial.

All arguments raised in the Appellant’s brief will be considered under the above issue.

The facts of this case as can be gleaned from the record of appeal are that the Appellant together with two others were charged for the offences of conspiracy and rape contrary to Sections 97 and 283 of the Penal Code. They were alleged to have carnal knowledge of one Farida Yusuf a 13 years old girl. The facts as to what led to the two charges against the Appellant can best be understood through the testimony of the prosecution’s witnesses.

PW1 was the prosecutrix. She was a primary school student but dropped out and also aged 14 years at the time of giving evidence. She said one day she went to Sharada Quarters to grind corn where she met the Appellant for the first time. He asked her to escort him to Gwale and she told him that she was almost done with grinding her corn and may go back home late if she escorts him. He promised not to spend too much time and further promised her a handset if she follows him to Gwale. They went to a house in Gwale near veterinary. He asked her to remove her clothes and she refused. He then said he will remove the clothes for her and will not be bothered if she shouts to attract people, he then removed her clothes and had sexual intercourse with her. Then he called the other two accused persons who turn by turn had sex with her. She was bleeding and the Appellant told her not to inform anyone at home and further advised that she should use hot water. The Appellant subsequently took her to the same place to have sex with her and on other occasions, he asked her to meet him there. The other two accused persons also had sex with her. There was a time PW1 had multiple rashes on her vagina and the Appellant gave her drugs that cured the illness. When she missed her monthly period she told the Appellant who told her that he was taking medicine as a precaution so nothing will happen. Eventually, the grandmother of PW1 noticed a change in her and PW1 confessed that she was pregnant. Her grandmother took her to PW1 who told them that he has a doctor friend at Kawo. They went there and the doctor administer an injection to her and gave her some drugs and the pregnancy did not abort. The Appellant was then reported to the police who arrested him and the two others. She delivered a baby girl. PW1 was cross-examined and she maintained that the Appellant had sex with her on numerous occasions and the other two accused had sex with her too. She also maintained that the Appellant is the father of her baby because after her menstruation he was the only person she has had sex with.

PW2 was W/Sgt. Rabi Yahaya, a Police officer. She recorded the statement of the Appellant in Hausa language and translated it into English language. It was a confessional statement, the accused signed it and she took him to her superior officer where the statement was also read to him and he acknowledge making same. Prosecution tendered 4 documents through PW2. She also stated that though she is Igala by tribe, she understands Hausa fluently.

PW3 was Ubaida Sani and a neighbour to the PW1. She testified that one day she went to PW1’s house and her grandmother informed her that PW1 was impregnated by someone but they don’t know how and where to report the matter. She assisted by leading them to the police who arrested the Appellant. At the point of his arrest, PW1 admitted having sexual intercourse with PW1 and also admitted taking her to his Doctor friend for an abortion. He was taken to the station and charged before a Sharia Court. The matter was transferred to a Juvenile Court. At both the Police station and the Sharia Court, there were attempts to settle the matter amicably when the Appellant’s brother agreed that the Appellant will take responsibility of the pregnancy but they later brought in lawyers to represent the Appellant and that was when the issue of amicable settlement ended. They also went to see his Doctor friend who informed the Police in her presence that the Appellant brought PW1 and request that he abort her pregnancy. He paid him N4000 and he gave the PW1 an analgin injection and some harmless drugs and she stated that he gave his reason for giving a wrong medication i.e to save the child. Under cross-examinations, she admitted to not being around when the Appellant had sex with PW1.

PW4 was Usman Ibrahim Abdullahi. He is a health worker. He testified that he knew the Appellant and in July 2013, the Appellant went to his shop with PW1 and one other woman and informed him that he impregnated PW1 and requested that he should take them to a Hospital to abort the pregnancy. He refused and left, the Appellant returned with PW1 and requested that he should abort the pregnancy. Then PW4 gave PW1 a Paracetamol injection and asked them to return after 10 days. Then after 25 days a woman came with the Policemen and invited him to the station. Under cross-examination, he stated that the Appellant told him that he impregnated PW1.

PW5 was Cpt. Dan Umma Mustapha. He testified that he was on duty at Sharada Police Division when PW3 reported a case of rape of a 13 year old girl in the person of PW1. They arrested the Appellant who admitted having sexual intercourse with PW1 and also investigation revealed that the Appellant attempted to abort the pregnancy by procuring the aid of PW5 who was also invited for question. The Appellant made a statement which is confessional. Subsequently, the case was transferred to the family unit at C.I.D. office Bompai.

Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that every person charged with a criminal offence shall be presumed to be innocent until his guilty is proved. The burden of proof with respect to criminal offences is on the prosecution who must prove the guilt of the accused beyond reasonable doubt. By that, the law insists that every ingredient of the offence with which the accused is charged must be proved by the prosecution. Failure to prove any of the ingredients would result in the acquittal of the accused person. See OBI VS. THE STATE (2013) 5 NWLR (PT. 1346) 68, BABATUNDE VS. THE STATE (2014) 2 NWLR (PT. 1391) 298 and SABASTINE VS. THE STATE (2020) LPELR 50319.

The burden placed on the prosecution is not beyond all shadow of doubt for absolute certainty is impossible in criminal trial except in certain exceptional situations. But once the evidence is so strong against an accused as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course is possible but not in the least probable”, the case is said to have been proved beyond reasonable doubt; in other words, this can be attained by proof of all the ingredients of an offence. See ISAH VS. THE STATE (2018) 8 NWLR (PT. 1621) 345; EZEANI VS. FRN (2010) 12 NWLR (PT. 1686) 231 and PHILIP VS. THE STATE (2019) 13 NWLR (PT. 1690) 209.
The prosecution is at liberty to prove its case by calling eyewitnesses to the commission of an offence, or by circumstantial evidence, or by a confessional statement made by the accused person. The prosecution can rely on any of the three modes or all of them in proof of its case. See ADIO VS. THE STATE (1986) 5 SC 94, ABIRIFON VS. THE STATE (2013) LPELR 20807; GARBA VS. FRN (2014) LPELR 74591 and MUSA VS. THE STATE (2014 LPELR 22912.

The Appellant was convicted and sentenced for the offences of criminal conspiracy and rape contrary to Section 97 and 283 of the Penal Code. First on the offence of conspiracy, Section 96 (1) and (2) of the Penal Code provides that:-
96 (1) When two or more persons agreed to do or cause to be done
a. An illegal act; or
b. An act which is not illegal by illegal means such agreement is called a conspiracy.
(2) Notwithstanding the provision of Subsection (1), no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties of such agreement in pursuance thereof.
From the above, the offence of conspiracy is committed where there is an agreement between two or more persons not being husband and wife, to commit an illegal act or a legal act by illegal means.

The offence of conspiracy is an offence in itself or distinct and independent of the substantive offence in that a person can be charged with the offence of criminal conspiracy simpliciter, for what the law frowns at is the agreement of two or more persons to commit an illegal act or a legal act by illegal means. See ABDULLAHI VS. THE STATE (2008) LEPLR 28, OMOTOLA VS. THE STATE (2009) 14 NWLR (PT. 1160) 151 and OFORDIKE VS. THE STATE (2019) LPELR 46411.

In a charge of criminal conspiracy, it is the duty of the prosecution to prove the following ingredients:-
a. An agreement between two or more persons to do or cause to be done some illegal act, or some act which is not illegal by illegal means.
b. Where an agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in the agreement; and
c. That each of the persons actually and individually participated in the agreement.
See AKINKUNMI VS. THE STATE (1987) 7 NWLR (PT. 52) 606, ABACHA VS. FRN(2006) 4 NWLR (PT. 970) 239, SULE VS. THE STATE (2009) 17 NWLR (PT. 1169) 33, MUHAMMED VS. THE STATE (2010) LPELR 9019, IKARIA VS. THE STATE (2010) LPELR 4291 and ABIODUN VS. THE STATE (2019) LPELR 41399.

The offence of conspiracy is established once the evidence has shown that the criminal design alleged is agreed upon by all the parties. Proof of how the suspects are connected with or among themselves is unnecessary. The conspirators need not know each other. The bottom line of the offence is the meeting of the minds of the conspirators. See NWOSU VS. THE STATE (2004) 15 NWLR (PT. 897) 466 and ABRAHAM VS. THE STATE (2017) LPELR 42873.
It is always difficult to prove the offence of conspiracy as is done in other offences. Proving conspiracy is in most cases a matter of inference from acts of the parties or from surrounding circumstances in any given case. The trial Court can convict if satisfied on the available evidence that the various parts played by each of the accused persons culminated into the alleged crime. See USUFU VS. THE STATE (2007) 3 NWLR (PT. 1020) 94; TANKO VS. THE STATE (2008) 16 NWLR (PT. 1114) 597 and YAKUBU VS. THE STATE (2014) 8 NWLR (PT. 1408) 111.

Invariably, because conspiracy is mostly determined by making references from the circumstances of a given case, the proper approach to an indictment which contains charge of conspiracy and a substantive charge is to deal with substantive charge first and then proceed to see how the conspiracy count has been made out in answer to the fate of the charge of conspiracy. See JIMOH VS. THE STATE (2014) 10 NWLR (PT. 1414) 105, AGUGUA VS. STATE (2017) 10 NWLR (PT. 1573) 254, BALOGUN VS. THE STATE (2018) LPELR 44215 and OLADEJO VS. THE STATE (2018) LPELR 44310. The offence of rape will in the light of the above be considered first.

In a charge of rape contrary to Section 283 of the Penal Code, the prosecution must prove the following ingredients of the offence:-
a. that the accused has sexual intercourse with a woman or girl,
b. that the act was done in circumstances falling under any one of the five paragraphs in Section 282 (1),
c. that the woman was not the wife of the accused or if she was his wife that the she had not attained puberty,
d. that there was penetration.
All the listed ingredients must be proved by the prosecution before a conviction can be had.
Rape has been defined as unlawful carnal knowledge of a woman or girl by a man without her consent or with her consent if her consent was obtained by force or by means of threat or intimidation of any kind or by fear of harm or by means of false act or when the girl is below 14 years of age and in case of a married woman by impersonating her husband or has not attained the age of puberty. See POSU VS. THE STATE (2011) 2 NWLR (PT. 1234) 392.

The Appellant argued that the conviction and sentence of the Appellant was wrongful in view of contradictions in the evidence of the prosecution witnesses, absence of evidence of the age of the victim, the contradiction on the evidence of the victim, the mode of recording the statement of the Appellant and failure to consider the evidence of the Appellant. The Respondent on the other hand maintained adduce at the trial Court properly considered the evidence adduced at the trial and come to a correct decision to convict the Appellant.

Now, on the first ingredient of the offence contrary to Section 283 of the Penal Code, the prosecution must prove that the accused had sexual intercourse with a woman or girl. The trial Court held that on the strength of the evidence of PW1 and confessional statement of the Appellant the first ingredient of the offence was established. The Appellant has argued strenuously that the evidence of PW2, PW4 and is contradictory and ought not to be believed by the trial Court.

The Appellant argued that PW2 stated in evidence that the case was reported to the C.I.C. office on 24/09/2013, PW4 also testified that in July, 2013 the Appellant in company of a woman and PW1 met him at his shop and PW5 also testified that the case was reported to the Sharada Police Division on 24/03/2013. Counsel argued that from the dates given by PW2, PW4 and PW5, it seems that the matter was first reported to Sharada Police Division before the Appellant took her to PW4 for abortion which is a clear contradiction of fact. I am not sure if learned Counsel for the Appellant understands the meaning and nature of contradiction in law.

A contradiction simply means a situation where a piece of evidence states the opposite of what another witness had affirmed or admitted or lack of agreement between two related facts. See OCHIBA VS. THE STATE (2010) LPELR 9002; USEN VS. THE STATE (2012) LPELR 20062 and EZE VS. THE STATE (2018) LPELR 43715. The effect of contradictory evidence is to render the whole evidence incapable of belief as a Court has a duty to reject contradictory evidence. See SOWEMIMO VS. THE STATE (2004) ALL FWLR (PT. 208) 95 and ICHE VS. THE STATE (2013) LPELR 22035.
However, not every contradiction in the evidence of a witness is fatal to a case. For a contradiction to have effect, it must relate to the material ingredients of the offence charged. It is therefore not every inaccuracy in the testimony of a witness that would render such evidence unreliable. Minor inaccuracies or discrepancies which do not touch on the substance of the case should not be allowed to constitute sufficient ground or reason to disturb the judgment of a Court on appeal. See IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100, BASSEY VS. THE STATE(2012) ALL FWLR (PT. 633) 1816 and DERIBA VS. THE STATE (2016) LPELR 40345.

It seems from the facts of this case there is no factual contradiction in the evidence of the prosecution witnesses in the date the case was reported to both Sharada Police Division, the C.I.D. office and the date the Appellant took PW1 to PW4 for abortion. All the series of events mentioned are independent of another. It is logical to report the case at the Divisional office of the Police and then C.I.D. office at different dates. In the circumstances, the case was transferred to the C.I.D. office from the Divisional office which is perfectly in order. It is also not the law that there must be recourse to PW4 before a report of the matter was made to the Police. The purpose of going to PW4 was to procure an abortion and if PW4 testified that PW1 was taken to him to determine medically whether she has been sexually assaulted, that is a different issue, but since the purpose was to procure an abortion, that can be done at any time either before a report to the Police or after the matter was reported to the Police. After all, it is an illegality in itself that requires no exact time to commit. The law did not and is not saying that in the circumstances of the facts as shown herein there must be recourse to PW4 before a report is made to the Police. There is no contradiction in the evidence of PW2, PW4 and PW5 as to the dates they mention. The contradiction only exists in the mind of the Appellant’s Counsel which happily is not the stance of the law. Even where it is proved that there is contradiction on the pieces of evidence, having not touched on the ingredient of the offences charged, it is not substantial enough to warrant rejection of their testimony.

Now, coming to the ingredient of the offence, it can be seen that the prosecutrix (PW1) testified on how the Appellant had sexual intercourse with her on numerous occasions resulting in pregnancy and subsequent delivery of a baby girl. The evidence of PW1 was reinforced by the extra-judicial statement of the Appellant to the Police. In the extra-judicial statement, the Appellant states thus:-
“I was born and brought up at Gwale Quarters Kano. I attended Gwale Primary School and Secondary School Kano. I also attended School of Hygiene, which I am still on it. For over one year now that I come to known (sic) a girl name (sic) Farida Yusuf through my friend named Muntari Usman of the same address, Kano.
He make sexual intercourse with her at the same time I too make. After some time I still repeat it again while one of my friend named Auwalu Abdullahi called her after some days and make sexual intercourse with her together with me. After she left, Amodu told me that the girl is pregnant. I told them that I am not responsible. From there her parents asked me of a way out and I took them to one of my friend named Usman Nurse at Kano Quarters Kano while I paid him the sum of Four Thousand Naira (N4,000) and he injected and gave her tablets. Since then I did not see her till on the 24/09/2013 when Policemen can to invite me.”

Learned Appellant’s Counsel contended that the person who translated the above statement from Hausa language to English language is not fluent in Hausa language. The law is settled that it is desirable to record statements of suspects, whenever practicable, in the language in which they are made to ensure correctness and accuracy, a statement is not ipso facto inadmissible merely because it was not recorded in the language it was made. See OLALEKAN VS. THE STATE (2001) 18 NWLR (PT. 746) 793; OSENI VS. THE STATE (2011) 6 NWLR (PT. 1242) 138 and ADEYEMI VS. THE STATE (2013) 3 NWLR (PT. 1340) 78.

For a confessional statement of an accused to be recorded in the language it was given, the Police officer recording the statement must be fluent in the language spoken by the suspect. That is the only way he can accurately record what the suspect said. Where it is contended that the Police officer who recorded the statement is not fluent in the language of a suspect, it behoves a party making the allegation to prove same. In the appeal at hand the only evidence on the record of appeal is the witness’s answer to a question under cross-examination that she is Igala by tribe from Kogi State. But she added that she can speak Hausa fluently. See P. 11 of the record of appeal. The Appellant’s Counsel ought to have taken PW2 further on her proficiency in Hausa language but did not. The burden is on the Appellant to prove that PW2 who is Igala by tribe is not fluent in Hausa language to have recorded the statement of the Appellant. This burden the Appellant did not discharge and as such the statement recorded by PW2 in Hausa language and translated by her was properly admitted in evidence by the trial Court.

The evidence of PW1 and the confessional statement of the Appellant have clearly shown that the Appellant had sexual intercourse with the prosecutrix and therefore the first ingredient of the offence is established and the position of the trial Court on this is upheld.

On the second ingredient, it is for the prosecution to prove that the Appellant had sex with the PW1 without her consent or with her consent if she is under 14 years of age. The Appellant also argued that there is contradictory evidence on the age of the prosecutrix and the trial Court is wrong to hold that she was a 13 years old girl when some prosecuting witnesses testified that she is 14 years of age.

The charge against the Appellant indicated that he admitted the offence of rape against PW1 a girl of 13 years. I acknowledge the fact the PW1 in her evidence stated that she is 14 years of age and PW2 stated that the prosecutrix is 13 years. The trial Court held that the prosecutrix was 13 years old. The basis of the trial Court’s holding stemmed from the fact in the charge sheet as well as the prosecutrix evidence that her age to be 14 years and the period of reckoning ought not to be at the time of giving evidence but rather at the time of commission of the offence. Therefore, there is evidence that the prosecutrix was 13 years of age at the time of the commission of the offence. In that case, there is no need for the prosecutrix to have refused consent as argued by the Appellant’s Counsel. The import of Section 282 (1) (e) of the Penal Code is to find an accused culpable even where the victim consents to such act as the law regards such consent as an invalid consent. See Section 31 of the Penal Code, STATE VS. MUSA (2018) LPELR 46318 and MAMUDA VS. THE STATE (2019) LPELR 46343.

The next ingredient is proof of penetration. This is most essential of all the ingredients of the offence of rape. Whether the prosecutrix is a minor or an adult, the prosecution must prove that the vagina has been penetrated by the accused person’s penis. See JEGEDE VS. THE STATE (2001) 14 NWLR (PT. 733) 264 and STATE V. MUSA (2018) LPELR 46318. A slight penetration is enough to constitute the offence of rape. Thus evidence of emission of seminal fluid is not a necessary requirement. See STATE VS. OJO (1980) 2 NCR 391; JEGEDE VS. THE STATE (Supra) and OGUNBAYO VS. THE STATE (2007) 8 NWLR (PT. 1035) 157.

I have considered the evidence of the Appellant at the trial Court. Apart from denying the offence, the Appellant also denied knowing PW4 and his co-accused. I cannot find any defence from the evidence of the Appellant upon which the trial Court failed to make a finding. He denied making the confessional statement and the trial Court dutifully applied the rule on the admissibility of a retracted confessional statement as settled by the law. The mere fact that the Appellant resiled or retracted his earlier confessional statement does not render such statement inadmissible or worthless in considering the guilt of the Appellant. See ULUEBEKA VS. THE STATE(2000) 4 SC (PT.1) 203 and IDOWU VS. THE STATE (2000) 7 SC (PT. 11) 50. The Courts are however enjoined to take a decision on whether the retraction avails the Appellant or not. In most cases, the weight to be attached to such retracted confessional statement is what is important. See OCHE VS. THE STATE (2007) 5 NWLR (PT. 1022) 214 and ZUBAIR VS. THE STATE (2021) LPELR 53986.
The retraction of the confessional statement was done at the trial and the trial Court has a duty to ascertain from other pieces of evidence adduced at the trial to determine whether the confession was true, voluntary, direct and positive. See ALARAPE VS. THE STATE (2001) 2 SC 114; EFFIONG VS. THE STATE (1998) 214. In the appeal at hand, the trial Court dutifully considered the test evolved on retracted confessional statement before coming to the conclusion that it is both an admission and can be used as evidence against the Appellant by ascribing probative value to it.

Coming back to the issue of penetration, it should be noted that the prosecutrix was impregnated by the Appellant and there can be no better evidence of penetration in a rape case than evidence of pregnancy. The prosecutrix became pregnant as a result of the acts of the Appellant and eventually delivered a baby girl, so it is evident that there is a penetration. This ingredient is equally proved.

The trial Court to my mind has dutifully and meticulously appraised the evidence before it and in particular found corroborative evidence which tended to show that the evidence of PW1 was true and came to a correct decision that the Appellant is guilty as charged. The prosecution has indeed proved the case of rape against the Appellant beyond reasonable doubt.

On the offence of conspiracy, the trial Court rightly found that proof of conspiracy is a matter of inference from surrounding circumstances. The trial Court admirably considered the surrounding circumstances and found that there exists a conspiracy to rape the prosecutrix. Upon a careful appraisal of the evidence adduced particularly the confessional statement of the Appellant and his co-accused leading to raping the prosecutrix and upon finding that there is a meeting of the minds to rape the prosecutrix, the inference drawn from the facts placed the trial Court on a sound footing. The inferences are correctly drawn from the facts and circumstances of this case and its finding that the Appellant is guilty of conspiracy is justified.

In the circumstances, the only issue for determination is resolved against the Appellant and in favour of the Respondent. The appeal is grossly unmeritorious and it is accordingly dismissed. The conviction and sentence on the appellant are hereby affirmed.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment, just delivered by my learned brother, Lamido, JCA, and I agree completely with his reasoning and conclusion that the appeal is devoid of merit and should be dismissed.

Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56936, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus:
“By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made. See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR – 9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.”

I too dismiss the appeal and abide by the consequential orders in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, ABUBAKAR MU’AZU LAMIDO, JCA in this appeal. I am in total agreement with my learned brother that the appeal is unmeritorious. The appeal is also dismissed by me.

I abide by the consequential orders therein.