IDRIS RABIU v. THE STATE(2004)

IDRIS RABIU v. THE STATE

(2004)LCN/1658(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of November, 2004

CA/A/6/C/2004

 

JUSTICE

IBRAHIM TANKO MUHAMMAD justice of The Court of Appeal of Nigeria

ZAINAB ADAMU BULKACHUWA justice of The Court of Appeal of Nigeria

ALBERT GBADEBO ODUYEMI justice of The Court of Appeal of Nigeria

 

Between

 

IDRIS RABIUAppellant(s)

 

 

AND

THE STATERespondent(s)

 

  1. T. MUHAMMAD, J.C.A. (Delivering the Leading Judgment): The appellant and one Awalu Garba were charged and convicted of the offences of conspiracy and rape contrary to sections 97 and 283 of the Penal Code.
    Brief facts of the case are that on the 1st day of September 1996, at Bida, one Idris Rabiu (the appellant) conspired with one Awalu Garba to have and indeed had carnal knowledge of Mama Abdul-Rahman an eleven-year-old girl, forcefully. It was on this basis that the prosecutrix father reported to ‘A’ Division Police Station, Bida.
    The prosecutrix was taken to the General Hospital, Bida because she was bleeding and medical report to that effect was obtained indicating that she bled as a result of the vaginal rupture she suffered due to forceful penetration.
    Upon receipt of the case diary, the appellant and one other were prosecuted under sections 97 and 283 of the Penal Code, and convicted and sentenced to term of imprisonment.
    Being dissatisfied with the decision of High Court of justice, Minna delivered by Honourable justice, Jibrin N. Ndajiwo the Chief Judge of Niger State, the appellant has appealed to this Honourable Court upon grounds set out in his notice of appeal filed on the 20th day of January, 2004.
    The appellant by his notice of appeal has filed 5 grounds of appeal before this Honourable Court, challenging the decision of the trial court.
    Parties in this court complied with our rules by filing and exchanging briefs of arguments.
    In the appellant’s brief, learned counsel for the appellant Mr. Machukwu-Ume, formulated the following issues for determination, thus –
    1. Whether there was evidence before the court to support the conviction and sentencing of the appellant for an offence of rape?
    2. Whether the trial court was right to have convicted the appellant solely on his plea of guilty to an offence of rape without calling on prosecution to prove its case?
    3. Whether it could be said that the appellant had a fair hearing considering the manner of his conviction?
    4. Whether the transfer of the appellant’s trial from Bida where the offence was committed and where he resides to Minna did not occasion a miscarriage of  justice?
    5. Whether in the circumstances of this case, the sentence of the appellant was not manifestly excessive?”
    Learned counsel for the respondent, Mr. Majidadi, adopted the issues for determination formulated by the appellant.
    In his submissions, learned counsel for the appellant, argued in respect of issue No.1 that the prosecution did not lead any evidence to prove its case and it was wrong for the trial court to have convicted the appellant. The prosecution was required by law to prove such a serious offence beyond reasonable doubt. Reliance was made to section 138 of the Evidence Act. All the ingredients of the offence must have been proved to secure a conviction. Ogunbayo v. The State (2002) 15 NWLR (Pt.789) 76 at 79 referred. Learned counsel submitted that under no circumstances is the prosecution relieved of the statutory burden of proving every ingredient in the offence of rape. State v. Anolue (1983) 1 NCR 71, Jegede v. State (2001) 14 NWLR (Pt. 733) 264 at 267 were cited in support.
    On issue No.2, learned counsel for the appellant submitted that a plea of guilt cannot be conclusive evidence of guilt in law and the court cannot convict solely on that without meeting certain statutory and judicially stipulated conditions. Before an accused can be convicted on a plea of guilty, it must be established that he has admitted all the facts on which his charge is founded as well as guilt in respect of them. The cases of Onuoha v. Police (1956) NRNLR 96; Ojetola v. C.O.P (1972) CCHCJ 29; Osie Tutu v. The State (1965) GLR 593; Akanbi v. C.O.P (1993) 1 NCR 266 at 269. Failure by the trial court to comply therewith will render the conviction a nullity. The plea of guilty, it is argued, was not genuine as the appellant did not understand his situation, his rights and the consequences of the plea and was coerced to making the plea.
    It was submitted for the appellant under issue No.3 that the non-representation of the appellant by a legal counsel in such offence is a denial of fair hearing. Ajile v. State (1999) 9 NWLR (Pt.619) 503 at 505 cited in support. Further, serious offences such as rape should not be tried summarily. R. v. Cox (1968) 1 WLR (1950) 53 CAR 66 and R. v. Pitson (1972) 56 CAR 391. Doing so, argued further by learned counsel, would deprive the applicant his constitutional guaranteed right to be legally represented. The learned trial Judge adopted a summary trial procedure in a capital offence such as rape when there is no such provision under the law. The case of Tsaku v. State (1986) 1 NWLR (Pt.17) 516 at 519 referred to.
    Issue No.4 raises the issue of transfer of appellant’s trial from untold hardship on the appellant. It forestalled every arrangement made by the appellant to be legally represented and it affected the right of the appellant to a fair hearing.
    Learned counsel for the appellant argued on issue No.5 that there was nothing to justify the trial court’s harshness and caprice with which the sentence on the appellant was handed down and a reformative attitude should have been adopted considering the circumstances and age of the appellant. It was wrong for the trial court to have stated that the appellant deserved a heavy sentence on the misconception that he showed no remorse. Learned counsel urged this court to quash the conviction and sentence of the appellant.
    Learned counsel for the respondent submitted under issues 1 and 2 that there was evidence before the court to support the conviction and sentencing of the appellant for the offence of rape. Learned counsel stated that the lower court complied with the provisions of sections 160 and 187(1) and (2) of the Criminal Procedure Code while exercising its discretion. He stated further that the appellant’s plea is enough evidence for the court to convict and sentence him and that he was rightly convicted and sentenced by the lower court.
    On issue No.3, learned counsel for the respondent argued that the appellant was accorded fair hearing in line with section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as the accused was informed promptly in the language that he understood and in details of the offences which he appeared to have understood the charge preferred against him. Several adjournments were given to the appellant in order to enable him secure the services of a legal practitioner but to no avail. Rape did not fall within the contemplation of capital offences so the court could not scout for legal representation for the appellant. Fair hearing does not permit a litigant to hold a court to ransom or permit for a delay of  justice. Learned counsel cited the cases of Ojukwu v. Nnoruka (2000) 1 NWLR (Pt.641) 348 at 350; Yanor v. State (1965) 1 All NLR 193.
    On the 4th issue, learned counsel for the respondent submitted that the transfer of the case from Bida Judicial Division to High Court No.1, Minna, was proper and in line with section 72(1), (2) & (3) of the High Court (Rules) of Niger State, Cap. 52. The transfer was for administrative convenience as the appellant, even before the transfer, was at Minna prison.
    It was submitted by learned counsel on issue No.5 that there was no dispute in the plea of the appellant at the trial court that he pleaded guilty to the charge. The court, under section 283 of the Penal Code has power to impose sentence of life imprisonment or any lesser term. The jurisdiction of the learned trial Judge was therefore unlimited, provided it did not exceed the maximum prescribed for the offence. The appellant, he argued further, was rightly convicted and sentenced. Learned counsel urged us to dismiss the appeal and affirm the lower court’s decision. Rape is the unlawful carnal knowledge of a woman by a man forcibly and against her will. Or, put more tersely, it is the act of sexual intercourse committed by a man with a woman not his wife and without her consent, committed when the woman’s resistance is overcome by force or fear, or under other prohibitive conditions. It is a serious offence and attracts severe penalties under the various criminal codes operating in Nigeria.
    Section 282(1) of the Penal Code, Cap. 89, Laws of Northern Nigeria, 1963, provides that a man is said to commit rape, who, save where he had sexual intercourse with his wife, has sexual intercourse with a woman in any of the following circumstances.
    (a) against her will;
    (b) without her consent;;
    (c) with her consent when her consent has been obtained by putting her in fear of death or of hurt;
    (d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
    (e) with or without her consent, when she is under fourteen years of age or of unsound mind
    The appellant, along with one other person, stood answerable to two counts charge preferred against each of them before the lower court. The charges read as follows:
    “That you, Idrisu Rabiu and Awalu Garba, on or about the 2nd day of September, 1996, at Bida, within the Bida Judicial Division agreed to do an illegal act, to wit you had carnal knowledge of Mama Abdul-Rahman, an eleven year-old girl (and the act was done in pursuance of the agreement), and you thereby committed an offence punishable under S. 97(1) of the Penal Code.
    No. II
    That you, Idrisu Rabiu and Awalu Garba on or about the 2nd day of September, 1996, at Bida, within the Bida Judicial Division did commit the offence of rape, by doing an act, to wit: You had carnal knowledge of Mama Abdul-Rahman, an eleven year-old girl, and you thereby committed an offence punishable under S. 283 of the Penal Code.”
    After taking the pleas of each of the accused persons wherein each admitted having committed the offences, the learned trial Judge proceeded to convict and sentence them to various terms of imprisonment with hard labour. In other words, the appellant was found guilty of the offences charged and was sentenced to terms of imprisonment on the strength of his “confession” of committing the offences charged. In essence, no witness was called to testify in favour of the prosecution and against the appellant. In his reasoning process while sentencing the two accused persons, the learned trial Chief Judge, stated among other things-
    “I have carefully considered the plea of the accused persons for leniency in respect of the two charges against them. Equally also, I have considered the submissions of the learned counsel for the state to the effect that two accused persons are first offenders. However, I deem it necessary to point out that for these two convicts to have carnal knowledge of an eleven year old girl without her consent is callous. This inhuman and callous act is certainly not only against the laws of this country but also against the laws of Almighty Allah. Offences of rape and the likes are certainly very prevalent in the jurisdiction under which the two offences were committed. Small innocent children of under age and indeed all females of whatever age needs (sic) to be protected against the likes of the accused persons. A stop must be put to these types of ungodly and illegal acts. This therefore calls for severe punishments for the convicts. I wish however to add that I have carefully also considered the demeanor of the two accused persons. The 2nd accused has all along appear (sic) very sober, reflective and repentant. I am of the firm accused (sic) (first) on the other hand appears arrogant and unrepentant. He has been displacing an attitude of I don’t care. This too calls for lighter punishment for the 2nd accused in the circumstances of this case and a stiffer (heavier) one of (sic) the 1st accused. Consequently, the convicts are hereby sentenced as follows.”
    The main grouse of the appellant as contained in ground one of the notice of appeal and argued in issue No.1 formulated by the appellant is that there was no evidence upon which the lower court relied to convict him. Now, what appeared in the record of appeal, especially the proceedings of the lower court of 19/5/98, is as follows:
    “Babadoko: The accused persons are not represented by counsel. We now want the court to proceed with the hearing of the matter…
    Court: This court has been adjourn (sic) this matter since 22/4/97 to enable the accused persons to engage the services of a lawyer. All along, it has been one excuse or the other. This court will no longer wait for the 1st accused persons (sic) and indeed the 2nd accused persons (sic). To do so will be an endless exercise.  justice of this case now clearly demands that the State should proceed with its case and the accused persons to defend themselves as provided under our laws.
    State: We have 2 witnesses in court and we are ready to call them. I apply to the court that the plea of the accused persons be taken.”
    It was after this that the pleas of the appellant were taken. On the 1st charge, the appellant stated as follows –
    “1st accused: I agree I committed this offence. I admit the charge. It is true.”
    One the 2nd charge, the appellant stated as follows –
    “1st accused: I understand the 2nd charge as read and explained to me by the court, I agree with the charge. I admit the offence. I committed this offence.”
    Thereafter, learned counsel for the State urged the lower court in the following words –
    “State: In view of the plea of guilty by the accused persons, I pray this Hon. Court to convict the accused persons of the the 2 offences charged accordingly.”
    The lower court found the appellant guilty of the two offences charged and convicted him accordingly.
    But for a conviction to stand where the accused person is alleged to have committed an offence of rape, the law places the burden of proof on the prosecution and it never shifts. See: Section 138 of the Evidence Act, Cap. 112, Laws of the Federation, 1990; Obiakor v. State (2002) 10 NWLR (Pt.776) 612. The ingredients of this offence which the prosecution is under duty to prove as per the provision of section 282(1) of the Penal Code, Cap. 89, Laws of Northern Nigeria, 1963, are as follows:-
    (a) That a man, the accused, had sexual intercourse with a woman, the victim.
    (b) That the act of intercourse was unlawful not being between husband and wife.
    (c) That in giving the evidence of intercourse, complete penetration is proved.
    (d) The accused must also be proved to have had the requisite mens rea, that is, intention to have intercourse with a woman without her consent or that the accused acted recklessly not caring whether the woman consented or not.
    (e) Also the prosecution must adduce evidence to corroborate the complaint made by the victim, and although this is not required as a matter of law, it is required in practice.
    It is clear from the printed record of appeal before this court that no evidence was led by the prosecution to establish any of the ingredients of the offence of rape as listed above.
    Authorities are agreed on the general principle of the law of rape that there must be proof of penetration, no matter how slight before the offence of rape can be said to be proved. In the recent case of Iko v. State (2001) 14 NWLR (Pt.732) 221 at 245 the Supreme Court, per Kalgo, J.S.C., stated, inter alia:
    “The essential and most important ingredient of the offence of rape is penetration and unless penetration is proved, the prosecution must fail (See R. v. Hill 1 East P.C. 439). But penetration however slight is sufficient and it is not necessary to prove any injury or the rupture of the hymen to constitute the crime of rape. (See R. v.  Allen 9C & p. 31).”
    See also: Okoyomon v. The State (1972) 1 NMLR 292; (1972) 1 SC 21 at P. 33; Jos N.A. Police v. Allah NA Gani (1986) NMLR 8; Igbine v. The State (1997) 9 NWLR (Pt.519) 101. Even where the prosecutrix testified that the accused inserted his penis into her vagina, the law requires such evidence to be corroborated by an independent witness. See: Okoyomo v. State (supra); Iko v. State (supra). This issue is resolved in favour of the appellant.
    On the conviction of the appellant by the lower court on the appellant’s plea only, the lower court seemed to base its conviction under section 187(2) of the Criminal Procedure Code (CPC) in the Northern States of Nigeria which provides as follows –
    “187 (2) If the accused pleads guilty, the plea shall be recorded and he may in the discretion of the court be convicted thereon unless the offence charged is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused.”
    Section 283 of the Penal Code prescribes the punishment for committing the offence of rape for life imprisonment or for any less term and shall also be liable to fine. The offence of rape therefore is not one punishable with death. The learned trial Chief Judge was correct in recording the pleas made by the appellant. The question posed by the appellant is whether the trial court was right in convicting the appellant solely on his plea of guilty to an offence of rape without calling on the prosecution to prove its case. It has been observed earlier in this judgment that the appellant “agreed” that he committed the offence; the charge was true and he admitted it. Now, in the normal course of things, if one says he ‘agrees’, that connotes the idea that one shares same opinion expressed by another. See: Hornby’s Oxford Advanced Learner’s Dictionary, 6th ed., page 23. To admit the commission of an offence ordinarily, connotes to agree, often unwillingly that something is true. Ss: Hornby, Op Cit page 15. If the expressions credited to the appellant happened to be the exact words used by him, then the next hurdle is: can such expressions amount to confession as contemplated by section 27 of the Evidence Act. A confession according to that section is an admission made at any time by a person charged with crime, stating or suggesting that he committed that crime. If voluntary, such a confession is deemed to be relevant facts as against the person who makes it only. Although, there are earlier authorities which subscribed to the view that, if during trial in court, an accused person confesses to the offence charged, and such a confession is in the nature of a plea of guilty, that alone does not make him to admit the truth of the facts contained in the charge as by that he merely admits that he is guilty of the offence as charged and nothing else, as held in R. v. Riley (1896) 1 Q.B. 309, our Supreme Court has held however, on such confessional statements, in the case of Edhigere v. State (1996) 8 NWLR (Pt.464) 1 at page 10 B-C, as follows:
    “As has been decided in a long line of cases by this court, it is trite law that a free and voluntary confession of guilt made by a prisoner whether under examination before a Magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant conviction without any corroborative evidence as long as the court is satisfied of the truth of the confession. See Jimoh Yusufu v. The State (1976) 6 SC 167 and Edet Obosi v. The State (1965) NMLR 119.
    It has also been laid down that it is desirable however to have outside a defence’s confession to the police some evidence be it slight of the circumstances which make it probable that the confession is true vide Paul Onochie & 7 Ors. v. The Republic (1966) NMLR 307; R. v. Kanu (1952) 14 WACA 30 and Onuoha v. The State (1987) 4 NWLR (Pt.65) 331.”
    A voluntary confession of guilt, if it is fully consistent and probable, is usually regarded as evidence of the highest and most satisfactory nature if there is an independent proof that a criminal act has in fact been committed by someone. See: Philip Kanu & Anor. v. R. (1952) 14 WACA 30 at 32; that the accused person had the opportunity of committing the offence; and that the confession was consistent with the other facts which had been ascertained and proved. See: R. v. Chukwuji Obiasa (1962) WNLR 354; R. v. Sykes (1913) 8 CAR 233.
    In this appeal, as there was no evidence placed before the learned trial Chief Judge apart from the “plea” of guilty by the appellant, I do not think it was safe for the learned trial Chief Judge to convict the accused solely on his plea. After all, the prosecution showed its readiness to call its witnesses but had a sudden change of mind asking the court to convict on the strength of the appellant’s plea. But I think the court below had a duty to warn itself of the danger of convicting the appellant solely on his plea of guilty. A plea of guilty is not and cannot be conclusive proof of guilt in law. In the case of Nwaebonyi v. The State (1994) 5 NWLR (Pt. 343) 138, the Supreme
    Court laid some conditions which should guide a trial court in evaluating such admissions/confessions in a criminal trial. These include the following –
    (i) Is there anything outside the confession which shows that it may be true?
    (ii) Is it corroborated in any way?
    (iii) Are the relevant statements of fact made in it most likely true as far as they can be tested?
    (iv) Did the accused have the opportunity of committing the offence?
    (v) Is the confession possible?
    (vi) Is the alleged confession consistent with other facts which have been ascertained and established?
    Thus, before an accused can be convicted on a plea of guilty, it is my view that the trial court is under a duty to ensure that the accused has admitted all the facts upon which his charge was based as well as guilt in respect of same and unless the accused distinctly admits each and every fact necessary to constitute an offence, he cannot be convicted merely on his plea. It has been laid in the case of Onuoha v. Police (1956) NRNLR 96 that-
    “Where an accused person pleads guilty the court should ask questions to ensure that the accused is admitting the charge and intends to plead guilty.”
    In the instant appeal, the learned trial Chief Judge, apart from asking the appellant whether he understood the charge read and explained to him, no further relevant questions were put to the appellant to ensure that he understood the nature and implication of the charge and the consequences that were to follow. I think the court ought to have asked the accused such relevant questions and what he had to say on those facts and after that to decide whether the facts together with the answer given by the accused would warrant a finding of guilt. It was held in Akanbi v. C.O.P. (1993) 1 NCR 266 at 269, that before conviction, the court must look for all the essentials of the offence, and if they are lacking in any way, there is cause to the contrary and an order of acquittal must be entered. I entirely agree with the learned counsel for the appellant in his submission that had the learned trial Chief Judge adverted his mind to the requirement of the law that he must be satisfied that the appellant understood the charge against him that he must hear all the facts alleged by the prosecution as constituting the offence charged; that he must ask the appellant if he admits all the facts alleged by the prosecution, that he must be satisfied that the appellant intended to admit the commission of the offence charged, the facts stated by the prosecution and admitted by the appellant must sustain the charge against the appellant, the learned trial Chief Judge would not have convicted the appellant. I hereby resolve this issue in favour of the appellant. Issue No.3 is on the lack of fair hearing accorded the appellant.
    The learned counsel for the appellant submitted that the non-representation of the appellant by a legal counsel is a denial of fair hearing and that the trial court declined to adjourn to enable the appellant secure a counsel and that the court ought to have assigned a counsel to the appellant, knowing the gravity of the offence and its punishment. Yes, it is true as observed by learned counsel for the appellant that the right to fair hearing is an extreme fundamental right in the Constitution and a breach thereof has its implication on the proceedings. It is very clear from our Constitution, section 33(6)(b) and (c) thereof, that every person charged with a criminal offence is entitled to be given adequate time and facilities for the preparation of his defence. Thus, the right to be heard is fundamental and indispensable requirement of any judicial decision. To this effect, the Supreme Court observed in the case of State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33, among other things that fair hearing is in the procedure followed in the determination of the case, not in the correctness of the decision. See also the case of Kim v. The State (1992) 4 NWLR (Pt.233) 17. In the court below, the appellant expressed his desire to engage the services of a counsel to represent him. Several attempts were made to get a counsel but to no avail. There was even an occasion when the appellant drew the lower court’s attention that he had been in detention since 1996 and that he gave money to his father to secure the services of a counsel for him but could not secure one. However, in fairness to the lower court some opportunities were given to the appellant to engage the services of a counsel. There was even an occasion when the lower court asked appellant to leave the name and address of his counsel. The lower court finally observed as follows:-
    “Court: This court has adjourn (sic) this matter since 22/4/97 to enable the accused persons to engage services of a lawyer. All along, it has been one excuse or the other. This court will no longer wait for the 1st accused per sons (sic) and indeed the 2nd accused persons (sic). To do so will be an endless exercise.  justice of this case now clearly demand (sic) that the State should proceed with its case and the accused persons to defend themselves as provided under our laws.” It is true that  justice delayed is  justice denied. It is equally true that  justice rushed is  justice denied. In Ceekay Traders v. General Motors (1992) 2 NWLR (Pt. 222) 132, (1992) 23 NSCC 188, the Supreme Court stated:
    “Delay of  justice is bad but denial of  justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of  justice.”
    Again, in Unongo v. Aper Aku (1983) 11 SC 129 at p. 153, the apex court observed:
    “The old adage that delay of  justice is denial of  justice has the same force as the maxim that hasty or hurried  justice is also a denial of  justice.”
    Although the provision of the Constitution referred to above, and no other provision thereof for that matter, defines “adequate time and facilities” which must be accorded a person charged with criminal offence for his own defence, common sense and prudence should dictate that a person who is in custody and who has no opportunity to walk around and engage the services of a legal practitioner of his choice, is certainly put at a disadvantage and should be trusted for what he said that he could not up to that point in time secure a counsel. In this appeal, the appellant stated that he even went to the extent of giving money to his father to engage a counsel for him but to no avail. The trial court itself, although not under obligation to assign a counsel for him as the offence is not a capital one, did not help matters by raising the hope of the appellant in collecting from him the name and address of his counsel when the court knew that it was not going to make the necessary contacts on his behalf. The offence of rape is such a complicated issue that requires the attention of an expert for handling. One basic point we must always bear in mind is that fair hearing incorporates a trial done in accordance with the rules of natural  justice. Natural  justice in the broad sense is  justice done in circumstances which are just, equitable and impartial. I resolve this issue as well in favour of the appellant.
    The 4th issue is on the transfer of the case from Bida division to Minna. It was argued that it caused untold hardship, depravity, inconvenience and a miscarriage of  justice to the appellant. But let it be understood from the outset that the allocation of cases, transfer from one Judge to the other is the exclusive right of the Chief Judge or head of court of a given jurisdiction or administrative judge of the judicial division under reference. In the present appeal, the Chief Judge of Niger State has been empowered by section 72 of the Niger State High Court Law to effect transfers of any cause or matter from one Judge to another. The section provides –
    “72(1) The Chief Judge may at any time or any stage of the proceedings before judgment and either with or without application from any of the parties thereto, transfer any cause or matter before a Judge to any other Judge.
    (2) The power to transfer shall be exercised by means of an order under the hand of the Chief  justice and the seal of the court and may apply:-
    (a) to any particular cause or matter in independence either –
    (i) in its entirety, or
    (ii) in respect of any part thereof, or
    (iii) in respect of any procedure to be taken thereon, or
    (b) generally to all such causes or matters as may be described in such order whether future or independence at the date of the order.
    (3) The power conferred upon the Chief Judge by this section shall be in addition to and not in derogation from any other power or duty to transfer conferred or imposed upon a Judge by this law or by any other written law.”
    I think there is no way one can fault the exercise of transfer of the case embarked by the learned trial Chief Judge of the lower court. He did it within the powers conferred upon him by the law. I resolve this issue against the appellant.
    Issue No.5 is on the excessiveness of the sentence given to the appellant. From the record, the appellant was sentenced on the first charge to ten years imprisonment with hard labour. On the second charge, the appellant was sentenced to 10 years with hard labour.
    Sentences to run concurrently. The punishment for rape is provided by section 283 of the Penal Code. It reads as follows:
    “283. Whoever commits rape, shall be punished with imprisonment for life or for any less term and shall also be liable to fine.”
    It is clear that the learned trial Chief Judge has been given the discretion to impose the maximum sentence of life imprisonment or for a lesser term. The learned trial Chief Judge decided to impose a lesser term. This is discretionary. It is settled law that discretion exercised judiciously and judicially is not to be subjected to any question by a higher authority. Although there is marked disparity between the terms of sentences imposed on the two accused persons (although second accused decided not to appeal as at the time of this appeal), it can be said the learned trial Chief Judge exercised his discretion. I have no business to tamper with such exercise of discretion where it was based on well-known legal principles. See: General Oil Ltd. v. Oduntan (1990) 7 NWLR (Pt.l63) 423 at 441; Saraki v. Kotoye (1990) 4 NWLR (Pt.143) 144 at 151; Solanke v. Ajibola (1968) 1 All NLR 46 at 51; Royal Exchange Assurance (Nig.) Ltd. v. Aswani iles Ltd. (1992) 3 NWLR (Pt.227) 1 at p. 5.
    On the whole, I find that this appeal has some merit. I allow the appeal in part. The conviction of the appellant is hereby quashed. I set aside the sentence imposed on the appellant. The appellant is accordingly discharged.

    BULKACHUWA, J.C.A.: I have read before now the draft of the lead judgment just delivered by my learned brother Muhammad, J.C.A.
    I agree entirely with his reasoning and his conclusion that this appeal has merit and must be allowed in part particularly so as by the records of the lower court the charge and its particulars were never explained to the appellant and when he pleaded guilty to the charge the consequences of his plea were never explained to him as required by section 187(2) read with section 161(3) of the Criminal Procedure Code. For the reasons advanced in the lead judgment which I adopt as mine I allow the appeal on issues 1, 2, 3 and abide by the consequential orders.

    ODUYEMI, J.C.A.: I had the opportunity of reading before now, the judgment just delivered by my learned brother, Muhammad, J.C.A.
    His Lordship has dealt in a very lucid form, with all the issues arising for determination in this appeal.
    I agree with the reasonings contained in the judgment as well as the conclusion that the appeal has merit and ought to be allowed.
    I adopt the same as mine.
    In the event, I too allow the appeal. I quash the conviction of the appellant. I discharge him.
    Appeal allowed in part.
    >

 

Appearances

Chukwuma-Machukwu Ume, Esq.For Appellant

 

AND

Salisu A. Majidadi, (State Counsel) Niger State Ministry of  justiceFor Respondent

 

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