ISAH v. STATE
(2020)LCN/14281(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, June 30, 2020
CA/KN/558C/2016
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
YUSIF ISAH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF POOF IN CRIMINAL CASES
Let me begin by restating the elementary principle in criminal trials as rightly submitted by the Appellant’s Counsel that the burden of proving the guilt of an accused person rests squarely on the prosecution to prove each and every ingredient of the alleged offence beyond reasonable doubt as statutorily promulgated by 138 Evidence Act. See the celebrated case of WOOLMINGTON VS D.P.P. (1935) A.C. 462 which has been adopted by our apex Court as pronounced upon in several cases including the cases ofUCHE VS. THE STATE (2015) 4 – 5 SC (PT. 11) 40; SANI VS. THE STATE (2015) 6/7 S.C. (PT. 11) 1 AT 170; ABDULMUMINI VS. FRN (2018) 13 NWLR (PT. 1635) 106. This burden never shifts but remains with the prosecution throughout the trial and with no corresponding burden on the accused to prove his innocence. See NJOKU VS. THE STATE (1993) 6 NWLR (PT. 299) 272, 285; ASAKE VS. THE NIG. ARMY COUNCIL & ANOR (2007) 1 NWLR (PT. 1015) 408; OGIDI VS. THE STATE (2005) 5 NWLR (PT. 918) 286. If on the entire evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof and the accused will be entitled to a discharge and an acquittal: See OFORLETE VS. THE STATE (2000) 12 NWLR (PT. 681) 45; IDOWU VS. THE STATE (2000) 12 NWLR (PT. 690) 48. PER WAMBAI, J.C.A.
DEFINITION OF THE OFFENCE OF RAPE
Rape in legal parlance simply means a forceful sexual intercourse with a girl or woman without her giving consent to it or when in law she is incapable of giving her consent the most important ingredient of which is penetration.
Section 282 (1) of the Penal Code defines rape, thus:
“A man is said to commit rape who, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstances – (a) against her will; (b) without her consent; (c) without 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.”PER WAMBAI, J.C.A.
ESSENTIAL INGREDIENTS OF THE OFFENCE OF RAPE
This provision has received concordant judicial interpretation spelling out the essential ingredients which the prosecution must prove to succeed. In POSU & ANOR. VS. THE STATE (2011) 3 NWLR 393 Adekeye JSC laid down the essential ingredients of the offence to be proved as the criteria for the success of the prosecution’s case as follows:
a.That the accused had sexual intercourse with the prosecutrix (the victim).
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 or when she is under the age of 14 years.
c. That the prosecutrix (victim) is not his wife and
d. That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not.
e. That there was penetration.
See LUCKY VS. THE STATE (2016) LPELR – 40541 (SC); IKO VS. THE STATE (2001) 14 NWLR (PT. 332) 195; POSU & ANOR. VS. THE STATE (2011) LPELR 1969) (SC); EZIGBO VS. THE STATE (2012) ALL FWLR (PT.683) 841.
To discharge its duty, the prosecution is at liberty to prove the guilt of an accused person by any or a combination of the followings: – (i) Confessional Statement of the accused; (ii) Circumstantial evidence or evidence of eye witness account of the commission of the crime. See IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100; ADEKOYA VS. THE STATE (2012) VOL. 3 M JSC (PT. 11) 77; NIG. NAVY & 2 ORS. VS. LT. COMMANDER S. A. IBE LAMBERT (2007) ALL FWLR (PT. 398) 574, AT 586. PER WAMBAI, J.C.A.
REQUIREMENTS FOR TAKING THE EVIDENCE OF A CHILD
Now, the prescribed requirements of Section 209(1) as regards the taking of the evidence of a child are 3, namely; (i) that the child is possessed of sufficient intelligence to justify the reception of his evidence;
(ii) that he/she understands the duty of speaking the truth; and
(iii) that he gives unsworn evidence.
On the prescribed procedure for adoption by a trial Court in order to attain these requirements, the apex Court while interpreting the provisions of Sections 155 and 183(1) & (2) of the Evidence Act, 1990, in the case of DAGAYYA VS THE STATE (2006) 7 NWLR (PT980) 637, AT 661 E – H, which are in pari materia with Sections 175 (1) and 209 of the Evidence Act, 2011, set out the following procedure to be adopted in taking the unsworn evidence of a child in criminal proceedings . It is as follows:
“(a) The first duty of the Court is to determine first of all whether the child is sufficiently intelligent to understand the questions he may be asked in the course of his testimony and to be able to answer rationally. This is tested by the Court putting to him preliminary questions which may have nothing to do with the matter before the Court.
(b) If, as a result of these Preliminary questions, the Court comes to the conclusion that the child is unable to understand the questions or to answer them intelligently, the child is not competent witness within the meaning of Section 155(1). But if the child passes the preliminary test, then the Court must proceed to the next test as to whether, in the opinion of the Court, the child is able to understand the nature and implication of an oath.
(c) If after passing the first test, he fails the second test then being a competent witness, he will give evidence which is admissible under Section 182(2), though not on oath. If, on the other hand, he passes the second test so that in the opinion of the Court, he understands the nature of an oath, he will give evidence on oath.
See also the cases ofOBI V STATE (2016) LPELR (CA) and SAMBO VS. THE STATE (supra) cited by the Appellant’s Counsel among several other cases both of this Court and the apex Court. PER WAMBAI, J.C.A.
DUTY OF THE TRIAL JUDGE WHERE HE DECIDES TO EXERCISE A DISCRETION TO TAKE WAY THE CASE OF CHILD WITNESS
However, where the trial judge decides to exercise a discretion to take away the case of child witness from the provision of Section 182 (1) of the 1990 Act or 209 (1) of the 2011 Act to cause the witness to give evidence on oath or affirmation, he must make a note to the effect that in his opinion the child is capable of understanding the nature of an oath. This note must be clearly and unambiguously reflected in the record of Court stating that in his examination of the witness he was satisfactorily of the opinion that the child understood the nature of an oath. It will be difficult, nay impossible, without the note on record, for an appellate Court to know the basis of asking a minor to give evidence on oath or affirmation. The note justifies the reception of a sworn testimony of a child otherwise than as provided in Section 182 (1). SeeOKOYE VS. THE STATE (SUPRA).
Though it can be argued that the provisions of Section 183 (1) of the 1990 Evidence Act though similar are not exactly the same with Section 209 (1) of the 2011 Evidence Act, the Supreme Court has interpreted both provisions to be in pari materia. Section 209 (1) has been held to be in pari materia with Section 183 (1) of the Evidence Act 1990. In the case of IDI VS. THE STATE while interpreting Section 209 (1) of the Evidence Act 2011 the apex Court referred to and adopted in toto its earlier decisions in the cases of DAGAYYA VS. THE STATE (SUPRA); OKOYE VS. THE STATE (supra) that a sworn testimony of a child may be taken.
On the requirement and procedure of taking the evidence of a minor as well as the duty of the Court, the Court restated the law thus:
“… the law under the express provision of Section 209 (1) (3) of the Evidence Act, 2011 stipulates that the Court is duty bound to conduct a preliminary enquiry to ascertain whether or not the minor possessed sufficient intelligence to answer the questions that will be put to her, also that she understands the duty of speaking the truth.”
The procedure is for the judge, to put first, certain questions that are unrelated and unconnected with the facts in issue to the minor, who ought to provide answers intelligently. However, the Court was emphatic that it is not a requirement of the law that the questions put to the child witness and his/her responses thereto must be recorded. What is required is that the record must show that the preliminary investigation was undertaken and the Court satisfied itself of the ability of the witnesses to testify.
Once there are clear indications on the record of proceedings that a trial judge carried out the preliminary investigation envisaged by Section 209 (1) Evidence Act, 2011, before taking the evidence of a child or an infant, that would mean at least prima facie that the said inquiry was carried out even though the actual questions and answers in the course of the investigation are not recorded. See MBELE VS. THE STATE (1990) 4 NWLR (PT. 145) 484.
It is therefore an interpolation or a concoction to read into the provision the requirement that the questions and answers must be recorded. In the IDI VS. THE STATE’s case (supra) the Court held as sufficient compliance with Section 209 (1) where the trial Court recorded as follows:-
“I have asked the witness as to her age, school her family life, the existence of bad and the consequence of speaking the truth and I am satisfied that she can give evidence on oath.” PER WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This criminal appeal before us emanated from the judgment of the Kano State High Court in Charge No. K/39C/2013 delivered on 11th May, 2016 by Hon Justice A. R. D. Mohammed wherein the Appellant was convicted for the offence of rape punishable under Section 283 of the Penal Code and sentenced to 18 years imprisonment with hard labour.
The charge against the Appellant to which he pleaded not guilty as contained at Page I of the record in the Charge Sheet dated 16th April, 2013 reads: –
“That you Yusif Isah, on or about the 10/07/2012 at about 15:30hrs, at Yalwan Danziyal, Rimin Gado Local Government within Kano Judicial Division committed the offence of rape, by doing an act to wit; lured one Mariya Muhammad, a thirteen years old girl, into your room and committed rape on her and you therefore committed an offence punishable under Section 283 of the Penal Code, (Cap. 105) Laws of Kano State 1991.”
The facts on the part of the Respondent are that while Maria Mohammed (PW1 and the victim of the offence) aged 13 years of age was hawking rice and beans at Yalwan Danziyal Rimin
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Gado Local Government Area of Kano State, the Appellant lured her into his room on the pretext of buying rice and beans to be delivered to his house. As she entered the house with the dish to hand over to the Appellant, the Appellant held her hand, dragged her into his wife’s bedroom, pulled off her hijab and pant and tried to close her mouth with his hand. Then he forced her down and forcefully put his penis into her vagina. She felt pains and could not get up afterwards. The Appellant told her to stand up and leave his house and not to inform her parents or any person about the incident or else he would do something unimaginable to her or even kill her. Subsequently, he continued to have sexual intercourse with her severally until her mother noticed that she was pregnant the responsibility of which pregnancy, PW1 (the Prosecutrix) pinned to the Appellant.
The matter was reported to the Ward head and later to the Police who took the PW1 to the Hospital where she was confirmed to be 22 weeks pregnant. She later gave birth to a baby girl who died 7 months after.
The Respondent paraded five witnesses and tendered two exhibits, Exhibits A and B
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(the Appellant’s confessional statement at the C.I.D. Office and the Medical report respectively).
On the part of the defence, the Appellant who testified as DW2 and called one witness, DW1, denied committing the offence but that PW1 (the Prosecutrix) wrongly accused himself and one Sagiru whom the Police later discharged for being a relation of PW1’s mother, of raping her. He also denied the voluntariness of Exhibit A.
At the end of the trial, the trial Court found the prosecution’s case proved beyond reasonable doubt and accordingly convicted the Appellant as charged and sentenced him to 18 years imprisonment.
Upset by his conviction and sentence, the Appellant through his Counsel, Tonye Krukrubo Esq., filed a Notice of Appeal on 18/07/2016 predicated upon 4 grounds as contained at pages 168 – 171 of the record of appeal.
In the Appellant’s brief of argument settled by Tonye Krukrubo Esq. and filed on 06/06/2017 but deemed on 11/01/2018, a sole issue was identified for determination, namely:-
Whether from the evidence before the trial Court, and in the circumstances of this case, the offence of rape was
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proved beyond reasonable doubt to warrant the guilty conviction of the Appellant.
Dalhatu Yusuf Dada, Director Ministry of Justice Kano State with Faridah Wada Umar, S.S.C who settled the Respondent’s brief of argument filed on 16/06/2017 on the other hand, submitted two issues for determination, to wit:-
ISSUE NO. 1
Whether the Respondent has proved the offence of rape beyond reasonable doubt against the Appellant.
ISSUE NO. 2
Whether the Appellant has successfully put up a good defence to the care against him.
I shall consider and determine this appeal on the Appellant’s sole issue reframed as follows:
Whether from the totality of the evidence adduced, the ingredients of the offence of rape were proved beyond reasonable doubt to warrant or secure the conviction of the Appellant.
Arguing the appeal, learned Counsel to the Appellant restated the elementary position of law in criminal trials that the prosecution bears the burden of proving the guilt of an accused person by proving beyond reasonable doubt each and every ingredient of the alleged offence, and in this case, of rape as provided in Section 282 (1) (a) – (e) of the Penal Code
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and Posited that the prosecution failed in such proof.
On the 1st ingredient that the Appellant had sexual intercourse with the prosecutrix (PW1), learned Counsel faulted the lower Court’s finding that the said ingredient was proved beyond reasonable doubt because according to him, while the evidence of PW1 who the record shows is a minor and legally incapable of giving sworn testimony and which the lower Court relied upon requires corroboration which was legally absent, that of PW2 had nothing to do with the offence of rape nor does it validate the evidence of PW1, thus the reliance placed on it he argued, does not accord with the law. He referred to Section 209 (1) and (3) and pressed further that the unsworn testimony of a child (a person less than 14 years of age) such as PW1, is receivable and reliable only upon three conditions, viz: (i) that the Court is satisfied that the witness is possessed of sufficient intelligence to justify the reception of her evidence; (ii) that he/she understands the duty of telling the truth; and (iii) That his/her testimony is corroborated by some material evidence in support of
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such testimony implicating the accused person.
He maintained that the lower Court did not, as admitted by the learned trial judge and borne out of the record, launch any inquiry into the capability and suitability of PW1 to testify and that contrary to the finding of the lower Court, the evidence elicited in cross-examination from PW1 on her understanding of the nature of an oath and consequence of telling lies which the Court relied upon as sufficient compliance with Section 209 (3) of the Evidence Act, does not satisfy the requirement of the said provision which requires not only that the inquiry be done by the trial judge and before the reception of the evidence, but also that same must be shown on the record to have been done. OKOYE VS. THE STATE (1972) ALL NLR 938; SAMBO VS. THE STATE (1993) 6 NWLR (PT. 300) 399, 422 PARAS D – G. Thus, according to him the learned trial judge never determined whether the PW1 was possessed of sufficient intelligence to understand the questions that would be put to her or whether the evidence so received was corroborated.DAGAYYA VS. THE STATE (2006) 7 NWLR (PT. 980) 637.
On the finding of the lower Court
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that the evidence of PW2 confirmed or corroborated that of PW1, it was Counsel’s argument that contrary to the view held by the lower Court, the rejected extra judicial statement of the Appellant made at the Rimin Gado Police Station for being involuntary cannot corroborate that of PW1 and ought not to have been relied upon as corroborative evidence of rape, citing in support the case ofOGUNBAYO VS. THE STATE (2007) LPELR 2323 (SC), contending further that there is nothing cogent in the evidence of PW2 or PW3 which corroborates that of PW1 in proof of rape or penetration, (the primary ingredient of rape) their evidence being essentially on suspicion and not on their personal knowledge but on what the wife of PW2 told him, that the Appellant impregnated his daughter PW1. He cited the cases of AJIBOYE VS. THE STATE (1994) 8 NWLR (PT. 364) 593 AT 600 and IJIOFFOR VS. THE STATE (2001) LPELR – 1465 (SC) in support of his submission that the lower Court was wrong to have found corroboration of rape in the evidence of PW2.
Similarly, learned Counsel drew our attention to pp 141 – 144 of the record where the Court examined the evidence and
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picked hole with the Court’s finding that Exhibit A which it relied upon to find the Appellant responsible for PW1’s pregnancy and guilty of rape, passed the veracity tests. He faulted the reference made to the Appellant’s rejected 1st statement at Rimin Gado Police Station in assessing and determining the veracity of the 2nd statement, Exhibit A, made at the C.I.D. and concluding that the confession in Exhibit A was possible. Predicated on these, Counsel argued that Exhibit A having failed to pass the veracity test, it ought not to have been relied upon in convicting the Appellant or as corroborative evidence of PW1.
On the lower Court’s finding that the evidence of PW1 and PW2 were uncontroverted for absence of serious cross-examination, it was Counsel’s submission on the authority of the cases of USMAN SHEU VS. THE STATE (2016) LPELR – 41145 (CA) and OMMAN VS EKPE (1991) 1 NWLR (PL. 641) 365 that the paucity of or failure to effectively cross-examine PW1 and PW2 does not discharge or shift the burden on the prosecution to provide corroborative evidence to that of PW1 or of proving its case against the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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His further argument is that the tendering of the Medical Report, (Exhibit B) an uncertified copy of a public document from the Bar after the testimony of PW5 (its maker) and the closure of the prosecution’s case despite objection by the Appellant’s Counsel, deprived the Appellant the right and opportunity to cross-examine PW5 on it and amounted to a gross violation of his right to fair hearing and thus renders Exhibit B fundamentally defective and ought to have been expunged from the record as the Court can only base its finding on legally admissible evidence or else any judgment based on illegally admissible evidence is liable to be set aside; calling in aid the cases ofACCESS BANK PLC VS. TRILO NIG. COMPNAY LTD. & ORS (2013) LPELR CA/K/22/2012 (unreported); ABDULLAH VS. FRN (2016) 10 NWLR (PT. 1521) 475 and UNITED CEMENT CO. LTD. & ANR VS. LIBEND GROUP LTD. & ANR (unreported – Appeal No. CA/C/277/2013 delivered on 13/12/2016).
Still on the worthlessness of Exhibit B written by a Senior Nursing Officer, it is contended that Exhibit B is not a medical report of an expert on the alleged rape of PW1 or that the Appellant had
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sexual intercourse with the prosecutrix or was responsible for the pregnancy, but a report confirming only that PW1 was 22 weeks pregnant and thus does not constitute corroboration of the evidence of PW1SAMBO VS. THE STATE (SUPRA) AT 416 PARAS F – G.
His further reason why he contends that the lower Court was wrong in its assessment of and finding on Exhibit B and the evidence of PW5 is that since Exhibit B was neither tendered through PW5 but from the bar as an afterthought (after PW5 had testified) nor was it ever presented to him for identification or even in Court at the time PW5 testified, the findings of the lower Court that; (i) the failure to cross-examine PW5 on the age of PW1 is an acceptance of his evidence that PW1 was 13 years old at the material time and corroborated that of PW1 or PW5, and (ii) that PW5 identified his signature on Exhibit B and the report to be in respect of PW1 (Mariya Muhammed Yunusa) made in 2012, are all unfounded and misplaced, hence, the evidence of PW5 does not in any way corroborate that of PW1.
In conclusion, in urging us to allow the appeal and set aside the conviction and sentence of the Appellant learned
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Counsel submitted that the prosecution having failed to lead any credible evidence beyond reasonable doubt in proof of the alleged rape to sustain the conviction and sentence, the Appellant’s conviction and sentence cannot be justified or sustained but must be set aside, citing the case of AMADI VS. THE STATE (1993) 8 NWLR (PT. 314) 644.
In his response, learned Counsel for the Respondent submitted that proof beyond reasonable doubt is not tantamount to proof beyond all shadows of doubt but proof sufficient to drown the presumption of innocence and that the prosecution successfully proved all the ingredients of the offence beyond reasonable doubt, to sustain the conviction and sentence namely:
1. That the accused had sexual intercourse with the woman in question;
2. That the act was done in circumstances envisaged in any of the five paragraphs of Section 282 (1) of the Penal Code;
3. That the woman is not the wife of the accused; or if she was the wife, she had not attained puberty;
4. That there was penetration.
On the 1st, 2nd and 4th ingredients, that the Appellant had sexual intercourse with the prosecutrix (PW1) and
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there was penetration, it was Counsel’s submission that PW1 being a girl of 13 years of age (a minor) at the time of the commission of the offence, the prosecution needs not prove the absence of consent, MUSA VS. THE STATE (2013) 9 NWLR (PT. 1359) 214 but needs only to prove that the Appellant had sexual intercourse with the prosecutrix (PW1); that there was a penetration which led to her being pregnant and was delivered of a baby girl. Penetration howsoever slight, weak, or even without emission of semen or bruises on the vagina he submitted on the authorities of IKO VS. THE STATE (citation not provided) and POSU VS. THE STATE (2011) 1 – 2 S.C. (PT. 1) 156; is sufficient.
Counsel referred to the evidence of PW1 at page 5 of the record where she gave evidence covering the ingredients, that the Appellant had sexual intercourse with her and there was penetration as she felt pains. He thus posited that the ingredients were proved beyond reasonable doubt.
On the Appellant’s argument that the evidence of PW1 was taken in violation of Section 209 (1) and (3) of the Evidence Act and should be discountenanced, learned Counsel contended that
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there was substantial compliance with the requirement of the said provision since PW1 aged 13 years gave sworn testimony only after the Court satisfied itself of her physical and mental appearance to do so. That though the questions put to PW1 by the Court and her answers thereto were not recorded by the Court her answers to the questions posed in cross-examination satisfy the requirements of the Section viz; that she possessed sufficient intelligence to justify the reception of her evidence and understands the nature of oath and there was no miscarriage of justice, citing in support the cases of AREBAMEN VS. THE STATE (1972) 4 SC 35 and D.P.P VS. HESTER (1973) AC 296, 314.
On the issue of corroboration, Counsel posited that though the uncontroverted evidence of PW1 requires no corroboration by law as was decided in the case of HABIBU MUSA VS. THE STATE (2013) LPELR (19932) (SC) Suit No. SC 409/2011, yet the prosecution offered corroborative evidence through PW2, PW3, PW4 and tendered the Appellant’s Confessional Statement (Exhibit A) which alone is sufficient to prove the guilt of the Appellant that he raped PW1, and thus all the fuss on
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corroboration is unnecessary as corroboration needs not consist of direct evidence that the person committed the offence nor does it amount to a confirmation of the whole account given by a witness, provided that it collaborates the evidence in some respect material to the charge – ISAH AHMED VS. THE STATE (2011) NWLR (PT. 1227) 89; DAGAYYA VS. THE STATE (2006) 7 NWLR (PT. 980) 647 (SC).
In response to the Appellant’s argument that Exhibit A did not pass the veracity test, learned Counsel drew our attention to pages 142 – 144 of the record and insisted that the lower Court satisfied itself of the truth of the confession before admitting it in evidence as required by law, citing the case of ULUEBEKA VS. THE STATE (2000) 2 SCNQR 186, 189 per U.A. Kalgo JSC.
Still on Exhibit A, in negating the Appellant’s argument that Exhibit A requires Certification as a public document, Counsel submitted that Exhibit A which is in its original form as a primary evidence requires no certification to be admissible in evidence by virtue of Section 86 of the Evidence Act as held in the case of PDP VS. INEC (2014) 17 NWLR (PT. 1437) 525, 562 and whereas
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in the case at hand the original copy is available, it is admissible in evidence without any requirement for certification as decided in DAGGASH VS. BULAMA (2004) 14 NWLR (PT. 892) 144.
On the contention that the Appellant was denied opportunity to cross-examine PW5, learned Counsel’s response is that it was the duty of the Appellant’s Counsel, as provided in Section 237 (5) of the Criminal Procedure Code (C.P.C) to apply to recall PW5 for further cross-examination. Afterall, with or without Exhibit B, there is no dispute that PW1 was pregnant and delivered a baby girl who died 7 months after delivery. That the purpose of Exhibit B is only to show that after the 1st incident of the rape, the Appellant continued to have series of sexual intercourse with the PW1, a girl of 13 years of age.
To all these compelling and overwhelming pieces of evidence which the learned trial judge relied upon in convicting the Appellant especially the uncontroverted and unchallenged graphic evidence of PW1 as to how the Appellant dragged her to his wife’s bedroom and had sexual intercourse with her as corroborated by those of PW2, PW4 and PW5, learned
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Counsel argued that the defence did not put up any good defence to the case against him and urged upon us to dismiss the appeal in its entirety for lacking in any merit, and affirm the decision of the trial Court.
In his reply (contained in his reply brief) to the Respondent’s argument on Section 209 (1) and (3) of the Evidence Act, 2011, Counsel to the Appellant submitted that it is erroneous and a misconception to argue that the inquiry conducted in cross examination by the Appellant’s Counsel as to whether PW1 possessed sufficient intelligence and understood the duty of speaking the truth satisfies the requirement of Section 209 (1) and (3) insisting that the inquiry must, as a compulsory duty, be conducted by the Court and before the commencement of the evidence and not by Counsel in cross-examination stressing that none compliance with the mandatory provision is not an irregularity that can be waived but one which renders the evidence worthless such that no conviction can be based on it as decided in cases of SAMBO VS. THE STATE (1993) 6 NWLR (PT. 300) 399, AT 419 PARAS B – C (SC); DAGAYYA VS. THE STATE (2006) 7 NWLR (PT. 980) 637
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SC; SOLOLA VS. THE STATE (2005) 2 NWLR (PT. 937) 460 AT 482.
In further argument, it was submitted that the reliance placed by the lower Court on the wrongly admitted evidence of PW1 in violation of Section 209 (3) had occasioned miscarriage of justice against the Appellant. GBENEYE & ORS VS. ISIAYEI & ORS. (2014) LPELR -23216 AT P. 23 PARAS A – F.
On the issue of requirement of corroboration of the evidence of a child below 14 years, he referred to Section 209 (3) of the Evidence Act and the case of IGBINE VS. THE STATE (1997) 9 NWLR (PT. 519) 101, (CA); OKPANEFE VS. THE STATE (1969) ANLR 411 and finally urged that the Appeal be allowed and the decision of the lower Court set aside.
RESOLUTION OF APPEAL
The issue in this appeal is whether from the admissible evidence on record the learned trial judge rightly found and held that the prosecution (Respondent) proved its case of rape against the Appellant beyond reasonable doubt.
Let me begin by restating the elementary principle in criminal trials as rightly submitted by the Appellant’s Counsel that the burden of proving the guilt of an accused person rests squarely
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on the prosecution to prove each and every ingredient of the alleged offence beyond reasonable doubt as statutorily promulgated by 138 Evidence Act. See the celebrated case of WOOLMINGTON VS D.P.P. (1935) A.C. 462 which has been adopted by our apex Court as pronounced upon in several cases including the cases ofUCHE VS. THE STATE (2015) 4 – 5 SC (PT. 11) 40; SANI VS. THE STATE (2015) 6/7 S.C. (PT. 11) 1 AT 170; ABDULMUMINI VS. FRN (2018) 13 NWLR (PT. 1635) 106. This burden never shifts but remains with the prosecution throughout the trial and with no corresponding burden on the accused to prove his innocence. See NJOKU VS. THE STATE (1993) 6 NWLR (PT. 299) 272, 285; ASAKE VS. THE NIG. ARMY COUNCIL & ANOR (2007) 1 NWLR (PT. 1015) 408; OGIDI VS. THE STATE (2005) 5 NWLR (PT. 918) 286. If on the entire evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof and the accused will be entitled to a discharge and an acquittal: See OFORLETE VS. THE STATE (2000) 12 NWLR (PT. 681) 45; IDOWU VS. THE STATE (2000) 12 NWLR (PT. 690) 48.
Rape in legal parlance simply means a forceful sexual intercourse
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with a girl or woman without her giving consent to it or when in law she is incapable of giving her consent the most important ingredient of which is penetration.
Section 282 (1) of the Penal Code defines rape, thus:
“A man is said to commit rape who, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstances – (a) against her will; (b) without her consent; (c) without 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.”
This provision has received concordant judicial interpretation spelling out the essential ingredients which the prosecution must prove to succeed. In POSU & ANOR. VS. THE STATE (2011) 3 NWLR 393 Adekeye JSC laid down the essential ingredients of the offence to be proved as the criteria for the success of the prosecution’s case as follows:
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- That the accused had sexual intercourse with the prosecutrix (the victim).
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 or when she is under the age of 14 years.
c. That the prosecutrix (victim) is not his wife and
d. That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not.
e. That there was penetration.
See LUCKY VS. THE STATE (2016) LPELR – 40541 (SC); IKO VS. THE STATE (2001) 14 NWLR (PT. 332) 195; POSU & ANOR. VS. THE STATE (2011) LPELR 1969) (SC); EZIGBO VS. THE STATE (2012) ALL FWLR (PT.683) 841.
To discharge its duty, the prosecution is at liberty to prove the guilt of an accused person by any or a combination of the followings: – (i) Confessional Statement of the accused; (ii) Circumstantial evidence or evidence of eye witness account of the commission of the crime. See IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100; ADEKOYA VS. THE STATE (2012) VOL. 3 M JSC (PT. 11) 77;
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NIG. NAVY & 2 ORS. VS. LT. COMMANDER S. A. IBE LAMBERT (2007) ALL FWLR (PT. 398) 574, AT 586.
In the case at hand, the prosecution tendered five (5) witnesses, and Exhibits A and B. The record shows that the lower Court relied on the evidence of PW1 (the prosecutrix) and her father (PW2); the Confessional Statement of the Appellant (Exhibit A); Exhibit B (the Medical Report) and that of PW5 (the Senior Nursing Officer) in coming to its conclusion that the case of rape was made out beyond reasonable doubt against the Appellant.
It is apt to state that the unchallenged evidence of PW1 (the victim) in this appeal is that she was 13 years of age at the time of the commission of the offence. By law, she cannot consent to sexual intercourse and her consent is immaterial. With or without her consent sexual intercourse with a minor such as PW1 in the circumstances enumerated in Section 283 amounts to rape, for she is incapable of giving her consent to it.
Therefore, all the prosecution is required to prove is that the Appellant had sexual intercourse with PW1 (the prosecutrix) and by the operation of the
21
law, absence of consent will be deemed.
On the proof of the 1st and 2nd ingredients, that the Appellant had sexual intercourse with the prosecutrix (PW1), the graphic evidence of PW1 (relied upon) as contained at pages 7 – 9 is that:
“My names are Maria Mohammad. I am 13 years old, I live at Yalwa Danziyal Rimin Gado Local Government Area of Kano State.
“… One day I was hawking rice and beans at my home town Yalwan Danziyel. The accused is our neighbor. Then the accused said I should take rice and beans for N50 to his house. Then I put in a dish and gave my sister by name Bahijja to take to him. Then as she was taking it to him I saw that she was about to drop it so I went to her and received it so that she doesn’t drop it and I went to take it to him. Then I entered his house saluting but nobody answered me. Then as I turn back to go back, the accused then spoke and said he was inside I should take it inside the room. Then I went back to give him. As I entered my hand to give him the dish, he held my hand. Then he dragged me into his wife’s bedroom and he removed my hijab. I started crying, then he removed
22
my pant and he tried to close my mouth with his hand. Then he put me down and put his penis into my vagina unit I feel pains.”
It is however the contention of the Appellant’s Counsel that the above evidence of PW1 is worthless for it was taken in contravention of Section 209 (1) of the Evidence Act, 2011. The Sub Section (1) together with the relevant Sub-Sections 2 and 3, provide:
209 (1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.
(2) A child who has attained the age of 14 years shall, subject to Section 175 and 208 of this Act give sworn evidence in all cases.
(3) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection (1) of this Section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating
23
the defendant.
It is the contention of the learned Counsel to the Appellant that the above provision was not complied with by the trial Court before and in the manner in which the evidence of PW1 was taken as admitted by the learned trial judge.
Now, the prescribed requirements of Section 209(1) as regards the taking of the evidence of a child are 3, namely; (i) that the child is possessed of sufficient intelligence to justify the reception of his evidence;
(ii) that he/she understands the duty of speaking the truth; and
(iii) that he gives unsworn evidence.
On the prescribed procedure for adoption by a trial Court in order to attain these requirements, the apex Court while interpreting the provisions of Sections 155 and 183(1) & (2) of the Evidence Act, 1990, in the case of DAGAYYA VS THE STATE (2006) 7 NWLR (PT980) 637, AT 661 E – H, which are in pari materia with Sections 175 (1) and 209 of the Evidence Act, 2011, set out the following procedure to be adopted in taking the unsworn evidence of a child in criminal proceedings . It is as follows:
“(a) The first duty of the Court is to determine first of all whether the child is sufficiently
24
intelligent to understand the questions he may be asked in the course of his testimony and to be able to answer rationally. This is tested by the Court putting to him preliminary questions which may have nothing to do with the matter before the Court.
(b) If, as a result of these Preliminary questions, the Court comes to the conclusion that the child is unable to understand the questions or to answer them intelligently, the child is not competent witness within the meaning of Section 155(1). But if the child passes the preliminary test, then the Court must proceed to the next test as to whether, in the opinion of the Court, the child is able to understand the nature and implication of an oath.
(c) If after passing the first test, he fails the second test then being a competent witness, he will give evidence which is admissible under Section 182(2), though not on oath. If, on the other hand, he passes the second test so that in the opinion of the Court, he understands the nature of an oath, he will give evidence on oath.
See also the cases ofOBI V STATE (2016) LPELR (CA) and SAMBO VS. THE STATE (supra) cited by the Appellant’s Counsel
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among several other cases both of this Court and the apex Court.
It is evident from judicial authorities that both under Section 182 (1) of the 1990 Act and Section 209 (1) of the 2011 Act, the trial Court has a discretion to take away the case of a child witness from those provisions and to receive his/her sworn testimony where in its opinion, the child is capable of understanding the nature of an oath. See DAGAYYA VS. THE STATE (SUPRA) (decided under the 1990 Act) and; SAMBO VS. THE STATE (supra) (decided under the pre 1990 Act) wherein Ogundare JSC cited in approval the dictum of G. B. A. Coker JSC in OKOYE VS. THE STATE (supra), PETER VS. THE STATE, (decided in 1997), three years after the SAMBO’S case relied upon by the Appellant’s Counsel, and IDI VS. THE STATE decided under the 2011 Act, wherein the Court found nothing wrong in the trial Court, ab initio, causing a child witness aged 13 years to be sworn, since the trial judge was satisfied that the child also understood the nature of oath.
However, where the trial judge decides to exercise a discretion to take away the case of child witness from the provision of Section 182 (1) of the 1990 Act or 209 (1) of the 2011 Act
26
to cause the witness to give evidence on oath or affirmation, he must make a note to the effect that in his opinion the child is capable of understanding the nature of an oath. This note must be clearly and unambiguously reflected in the record of Court stating that in his examination of the witness he was satisfactorily of the opinion that the child understood the nature of an oath. It will be difficult, nay impossible, without the note on record, for an appellate Court to know the basis of asking a minor to give evidence on oath or affirmation. The note justifies the reception of a sworn testimony of a child otherwise than as provided in Section 182 (1). SeeOKOYE VS. THE STATE (SUPRA).
Though it can be argued that the provisions of Section 183 (1) of the 1990 Evidence Act though similar are not exactly the same with Section 209 (1) of the 2011 Evidence Act, the Supreme Court has interpreted both provisions to be in pari materia. Section 209 (1) has been held to be in pari materia with Section 183 (1) of the Evidence Act 1990. In the case of IDI VS. THE STATE while interpreting Section 209 (1) of the Evidence Act 2011
27
the apex Court referred to and adopted in toto its earlier decisions in the cases of DAGAYYA VS. THE STATE (SUPRA); OKOYE VS. THE STATE (supra) that a sworn testimony of a child may be taken.
On the requirement and procedure of taking the evidence of a minor as well as the duty of the Court, the Court restated the law thus:
“… the law under the express provision of Section 209 (1) (3) of the Evidence Act, 2011 stipulates that the Court is duty bound to conduct a preliminary enquiry to ascertain whether or not the minor possessed sufficient intelligence to answer the questions that will be put to her, also that she understands the duty of speaking the truth.”
The procedure is for the judge, to put first, certain questions that are unrelated and unconnected with the facts in issue to the minor, who ought to provide answers intelligently. However, the Court was emphatic that it is not a requirement of the law that the questions put to the child witness and his/her responses thereto must be recorded. What is required is that the record must show that the preliminary investigation was undertaken and the Court satisfied itself
28
of the ability of the witnesses to testify.
Once there are clear indications on the record of proceedings that a trial judge carried out the preliminary investigation envisaged by Section 209 (1) Evidence Act, 2011, before taking the evidence of a child or an infant, that would mean at least prima facie that the said inquiry was carried out even though the actual questions and answers in the course of the investigation are not recorded. See MBELE VS. THE STATE (1990) 4 NWLR (PT. 145) 484.
It is therefore an interpolation or a concoction to read into the provision the requirement that the questions and answers must be recorded. In the IDI VS. THE STATE’s case (supra) the Court held as sufficient compliance with Section 209 (1) where the trial Court recorded as follows:-
“I have asked the witness as to her age, school her family life, the existence of bad and the consequence of speaking the truth and I am satisfied that she can give evidence on oath.”
It proceeded to hold further, that what the law requires is that the Court’s record must show that the necessary enquiry was carried out and the Court was satisfied that
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the child was competent to testify, either on oath or unsworn.
In the case at hand at page 7 of the record, PW1 started her evidence as follows:-
“PW1 – Muslim/Affirmed/Speaks Hausa. Section 242 Criminal Procedure Code complied with by Auwalu Abdullahi Senior Registrar of Court 7
“My names are Maria (sic) Mariya Mohammed. I am 13 years old …”
In its judgment at page 153 of the record, dealing with the issue of non-compliance with Section 209 (1) of the Evidence Act 2011 with respect to the argument canvassed by the Appellant’s Counsel, the learned trial judge held:
“It’s true that these questions were not recorded on the record of the Court however; I was satisfied with the physical and mental appearance of PW1 and that was why she was asked whether she wants to swear or affirm upon which she was affirmed to testified(sic) before the Court. These questions which Counsel posed were answered by the PW1 in her evidence under cross-examination as such satisfied the provision of Section 209 (3) of the Evidence Act. In her evidence under cross examination she stated:
“Yes I am a
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Muslim. Yes, I know there is a day of Judgment if I tell lies God will punish me with Hellfire. Yes, the accused has had several sexual intercourse with me.”
Premised on this, the learned trial judge concluded thus:
“Therefore this evidence confirms the Court’s position that PW1 was physically and mentally matured enough to be affirmed without the necessity of proof questions to determine her intelligence and the duty of telling the truth.”
Two questions are pertinent;
i. Does the record show that the learned trial judge conducted the necessary preliminary inquiry before taking the evidence of PW1?
ii. Does the enquiry conducted by the Appellant’s Counsel in cross-examination meet the requirement of the law?
Straight away, I will answer the 1st question in the negative. The proceedings of the trial Court recorded at page 7 of the record which shows that PW1 was ab initio affirmed to testify and without any indication in the record to show any preliminary inquiry was conducted before asking the child to give evidence on affirmation, contravenes the provision of Section 209 (1) of the Evidence Act, 2011.
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The learned trial judge in his judgment while responding to the issue of non-compliance with the provisions of the Section (209 (1) Evidence Act 2011), raised by the Appellant’s Counsel, responded thus:
“Its true these questions were not recorded on the record of the Court. However, I was satisfied with the physical and mental appearance of PW1 and that was why she was asked whether she wants to swear or affirm upon which she was affirmed to testified (sic) before the Court.”
While there is legally no problem with the admission that the questions and answers were not recorded since it is not being a requirement of the law to do so. What I find faulty and have a problem with is the statement that “I was satisfied with the physical and mental appearance of PW1”. Most candidly, that statement at the stage of judgment writing falls short of the requirements of the law. It does not meet the requirement of Section 209 (1). The requirement of the Section is not about physical and mental appearance of a child by observation. It is about testing and confirming the child’s level of understanding and intelligence
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to justify the reception of his/her evidence. Secondly, it is about ensuring that the child witness understands the duty of telling the truth, and where the Court elects to take the child’s evidence away from the provisions of 209 (1) (as the learned trial Court seems to have done), to ensure not only the witness understands the nature of an oath (or affirmation) but most importantly that a note is made in the record stating that in his opinion, the child is capable of understanding the nature of an oath.
Obviously, there is nothing in the entire record to show that these preliminaries were done by the trial Court before affirming PW1 to give her evidence. What the lower Court concerned itself with, albeit, wrongly, is the physical and mental appearance of PW1; but these are not the deciding factors in Section 209 (1). If mere appearance were to be the sole criterion for receiving the evidence of a child, then, the law makers would not have deemed it necessary to set specifics of what facts are to be ascertained, beyond appearance, before taking the evidence of a child or an infant, and Section 209 (1) would have been unnecessary. Fortunately, it
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is not the physical and mental appearance of a child as observed by the trial judge, but the possession by the child of sufficient understanding and intelligence revealed from a preliminary inquiry conducted by the Court as regulated by Section 209 (1) that justifies the reception of the evidence. It is the criterion that enables the Court either to receive or to reject the evidence of a child.
Flowing from this, the answer to the 2nd poser is not far-fetched. The Question and Answer Session conducted between the Appellant’s Counsel and PW1 in cross-examination to fill in the gap which the learned trial judge relied upon as a confirmation of his position that he was satisfied of the physical and mental appearance of PW1, does not stand in place of or meet the requirement of Section 209 (1) of the Evidence Act 2011, earlier reproduced in this judgment for two reasons. Firstly, the enquiry envisaged by Section 209 (1) is preliminary to the reception of the evidence; as a condition for the reception of the evidence and not in cross-examination, after the witness has given his evidence in chief. The test is preliminary and precedes the commencement of
34
the evidence. The purpose is for the judge to form an opinion whether the child possesses sufficient intelligence to give evidence and understands the nature of an oath. It follows that the impression must be formed before and not after the child has testified or started testifying. It is the enquiry that enables the Court to form an opinion as to the competence of a child to testify.
Secondly, the enquiry is a judicial function or duty of the trial judge and not that of Counsel. The specific duty imposed on the trial Court by Section 209 (1) and (3) Evidence Act, 2011 where a child is forwarded as a witness, is compliance with the provisions. Therefore, the attempt by Counsel to fill in the gap cannot, as erroneously held by the learned trial judge, be a substitute for or relieve the judge of his duty to conduct a preliminary, (not a post enquiry), to determine the ability and suitability of the child witness to testify at all or to give sworn testimony. I therefore answer this 2nd poser also, in the negative.
Having said this, should the evidence of PW1 be completely discarded as pressed upon us by the Appellant’s Counsel on the authority of
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SAMBO’s VS. THE STATE (supra)?
It is true that by the majority decision in the SAMBO’s case, non-compliance with the specified procedure in Section 183 (1) of the Evidence Act 1990, judicially interpreted to be similar with the present Section 209 (1) of the Evidence Act, 2011), was treated as fundamental and not a mere irregularity.
However, in the later case of PETER VS. THE STATE (supra) decided in 1997, Onu JSC following the dictum of Ogundare JSC in SAMBO’s case (supra) and quoting with approval Coker JSC in OKOYE VS. THE STATE (supra), treated non-compliance with the provision as an irregularity. His Lordship also observed that it was well the duty of the Counsel to raise an objection to any irregularity in the conduct of proceedings especially when it is clear that a particular step ought to have been taken or a particular thing done. He then held thus:
“… Thus, although in SAMBO VS THE STATE (supra), the Appellant’s appeal was allowed, in the instant case, I will be loath to interfere with the discretion exercised by the trial Court which the Court below affirmed… by failing to carry out
36
preliminary investigation before taking the evidence of PW1 in the instant case, no error of a fundamental irregularity rendering the evidence so received worthless and of no use as in Sambo vs. the State (supra) and Agenu vs. the State (1992) 7 NWLR (pt. 256) 749 respectively…”
I will therefore in the circumstance also treat the non compliance with Section 209 (1) Evidence Act, 2011, as an irregularity and not fundamental.
Accordingly, the sworn evidence of PW1 shall not be completely discarded but will be treated and considered within the ambit of Section 209 (3), Evidence Act, 2011.
What this means is that to sustain the Appellant’s conviction and sentence, the evidence of PW1 must be corroborated by some other material evidence implicating the Appellant. While the Respondent contends that such corroborative evidence exists in Exhibits A and B and the evidence of PW2, PW3 & PW5, the Appellant’s Counsel on the other hand posits that none of the aforestated evidence corroborates that of PW1.
It is now very well settled that in a case of rape where the offence is denied such as the one at hand, the evidence of
37
the prosecutrix, a minor below the age of 14 years, requires corroboration both as a matter of law as stipulated in Section 209 (3) of the Evidence Act, 2011 and by established practice as a matter of prudence.
Corroborative evidence is a confirmatory evidence or additional evidence to that already given. It is supplementary evidence which tends to strengthen or confirm the evidence already given. See Blacks Law Dictionary, 6th Edition page 344. Corroborative evidence is an additional evidence of a different character on the same point. See MUSA VS. THE STATE (2013) ALL FWLR (PT. 1688) B – C; THE STATE VS. GWANGWAN (2015) LPELR 504/2012 (SC).
The Courts have held that the corroboration required in rape needs not be direct evidence that the accused committed the offence. It is sufficient if it corroborates in material respect the evidence of the prosecutrix. It is any evidence which tends to show that the story of the prosecutrix (victim) is true that the accused committed the crime. See EZIGBO VS. THE STATE (2012) LPELR – 7855 (SC); R. VS. BASKETVILLE (1916 – 17) ALL ER REPRIN 38 AT 43; IKO VS. THE STATE (2001) 14 NWLR (PT. 732)
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221 AT 241 and this could be circumstantial in nature so long as it connects or tends to connect the accused to the commission of the offence. SeeDURUGO VS. THE STATE (1992) NWLR (PT. 255) 525; OGUNBAYO VS. THE STATE (2007) LPER – 2323 (SC).
The graphic evidence of PW1 is that the Appellant lured her to his room on the pretext of buying rice and beans from her and forcefully had sexual intercourse with her and that subsequently, he had sexual intercourse with her several times until she got pregnant. Through her mum, her father, PW2, later discovered that she was pregnant. Exhibit B and the evidence of PW5 confirm that PW1 was at the time of examination 22 weeks pregnant.
These pieces of evidence and the entire evidence of PW1 as rightly found and held by the learned trial judge remained uncontroverted and in fact strengthened in cross examination when she said:
“if I tell lies God will punish me with HellFire. Yes, the accused has had several sexual intercourse with me” which evidence, the trial judge was entitled to and rightly accepted as the truth see ADA VS. THE STATE (2008) 13 NWLR (PT. 1103) 149.
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Appellant’s Counsel submitted that Exhibit B was wrongly admitted being an uncertified copy of a public document. This argument is totally misconceived. By virtue of Section 85 of the Evidence Act documents may be proved by their primary or secondary evidence. Primary document is the document itself. Exhibit B tendered at the trial is the original document itself which requires no certification. See DAGGASH VS. BULAMA (2004) 14 NWLR (PT. 892) 144 and P.D.P. VS. INEC (2014) 17 NWLR (PT. 1437) 55 cited by the Respondent’s Counsel.
Similarly, the argument that the tendering of Exhibit B from the bar deprived the Appellant the opportunity to cross-examine PW5 on it, and infringed on the Appellant’s right to fair hearing is unavailing having regards to the provision of Section 237 (5) of the Criminal Procedure Code(C.PC) which entitles the accused/Appellant to apply to the Court to re-call PW5 or any other witness for further cross-examination. The Appellant who was represented by Counsel at the lower Court having not done so, cannot complain. See NWACHUKWU VS. THE STATE (2002) 2 NSCQR 663, AT 678.
The learned Counsel further argued and I agree with
40
him that the purpose of Exhibit B was to determine whether PW1 was pregnant and not whether the Appellant raped her or was responsible for the pregnancy. However, that submission holds sway only in the absence of the evidence of PW1 and Exhibit A wherein the Appellant admitted having sexual intercourse with the prosecutrix and accepting responsibility for the pregnancy.
In his words in Exhibit A:
“I know I am the one that I pregnant of Mariya”.
He further stated:
“I could remember six months ago, I start called on girl by name Mariya I sexual intercourse with her. I pay her sum of N100 every time I sexual intercourse with her six times. If I need to sex with her I can called her in my house or my shop entrance of my house, I deceive her with buying yam or rice and beans with from her. I know I am the one that I pregnant of Mariya and that is all I know.”
Exhibit A therefore corroborates Exhibit B (and evidence of PW5) that PW1 was pregnant and also corroborates the story of PW1 that the Appellant was responsible for the pregnancy.
On the subsequent times PW1 said the Appellant had sexual intercourse with
41
her which the Appellant in Exhibit A said was each time for a fee, the learned trial judge rightly held that on each of the several or uncountable times the Appellant had sexual intercourse with her, it was done without her consent, because PW1 was legally incapable of giving her consent to the act. That finding and holding of the trial Court is pukka.
On the question of whether pregnancy which Exhibit B evidences is proof of penetration which is the 4th and the most important ingredient of the offence, the learned trial judge held at page 158 of the record:
“Now what better evidence of penetration do we need in the uncontradicted and uncontroverted evidence of pregnancy admitted by the accused to be responsible for it? The acceptance of the PW1’s pregnancy conclusively proves the most important ingredient of the offence of rape.”
The above finding is also pukka and unassailable.
In Exhibit A the Appellant admitted having sexual intercourse with the prosecutrix. In his words:
“I could remember six months ago, I start called on girl by name Mariya I sexual intercourse with her. I pay her sum of N100 every time I
42
sexual intercourse with her six times. If I need to sex with her I can called her in my house or my shop entrance of my house, I deceive her with buying yam or rice and beans with from her. I know I am the one that I pregnant of Mariya and that is all I know.”
The Appellant has however in his evidence in Court, resiled from the contents of Exhibit A above and completely denied the commission of the offence.
The law is settled that a retracted confessional statement of an accused is not only sufficient to corroborate evidence that requires corroboration, but is in itself sufficient to sustain the conviction of an accused so long as it is direct, positive, and unequivocally and clearly suggestive of the guilt of the accused person. The retraction does not render the confession inadmissible nor deter the Court from acting upon it. See GALADIMA VS. THE STATE (2012) 18 NWLR (PT. 1333) 610; SOLOLA & ANOR. VS. THE STATE (2005) 11 NWLR (PT. 937) 460 and OGUDO VS. THE STATE (2011) 18 NWLR (PT. 1278). However, the Courts have enjoined, as decided inR. VS. SYKES (1913) 8 CAR 233, on trial Courts, to look for some other evidence no matter how slight
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outside the confession which will vindicate its veracity; whether it is corroborated in any way; whether its contents are true; whether the accused had the opportunity to commit the offence charged; whether the confession is possible and consistent with other facts which have been proved. See KAREEM VS. FRN (2002) 8 NWLR (PT. 770) 664; OSETOLA & ANOR. VS. THE STATE (2012) LPELR 9348.
Mindful of these requirements, the learned trial judge as shown on pages 142 – 144 of the record, put Exhibit A to each of the 6 tests and concluded that it passed all the tests.
Furthermore, it is instructive that Exhibit A is a product of a trial within trial proceedings, at the end of which the learned trial judge in a considered ruling found that the statement was made voluntarily and therefore admitted it in evidence.
The ruling is not a ground of complaint in this appeal nor has it been a subject of any appeal. The law is trite that once a confessional statement was admitted through a trial within trial proceedings, it will be difficult for an appellate Court to intervene because evaluation of evidence is based on credibility of witness, which duty
44
is primarily that of the trial Court which had the unique opportunity of seeing the witnesses testify and watching their demeanor. See LASISI VS. THE STATE (2013) 9 NWLR (PT. 1358) 74 AT 96; SALAWU VS. THE STATE (2011) 47 NSCQR 276 AT 349; ESANGBEDO VS. THE STATE (1989) 4 NWLR (PT. 113) 57.
Additionally, I find Exhibit A being direct and positive. The lower Court was therefore right in relying on it. The argument of the Counsel for the Appellant, in the face of the foregoing, that Exhibit A did not pass the 5th veracity test and ought not to have been relied upon to test the possibility of making Exhibit A, is of no moment.
On the whole, we find no merit in this appeal and the Appellant has not been able to show why this Court should interfere with the judgment of the lower Court. The appeal is liable to be and is hereby dismissed for lacking in merit. The judgment of the lower Court including the conviction and sentence passed on the Appellant in Charge No. K/39C/2013 delivered on 11th May 2016 by Hon. Justice A. R. D. Muhammad is hereby affirmed, save for the words “with hard labour” in the sentence imposed which are hereby deleted from
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the sentence for being improper not being part of the sentence prescribed by Section 283 of the Penal Code.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have had a pre-view of the leading judgment of my learned brother Wambai JCA just delivered and I agree with his reasoning, and conclusion. As the issue for determination has been thoroughly analysed and resolved, I have nothing further to add. I too find the appeal lacking in merit and I dismiss it. I affirm the judgment of the trial Court delivered on 11th May 2016 in Charge No: K/39C/2013, on the conviction and sentence except the issue of hard labour which I hereby delete.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.
The Appellant was charged with the rape of thirteen year old girl. The case was that the Appellant has sexual intercourse with the victim several times over a period of time until the mother of the victim discovered
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that she was pregnant and the victim was taken to the hospital and whereat she was confirmed to be twenty-two weeks pregnant. The victim subsequently gave birth to a child who lived for only seven months.
The essential ingredients that the Respondent was under obligation to prove beyond reasonable doubt to sustain the charge against the Appellant were (i) that the Appellant had sexual intercourse with the victim; (ii) that the act of sexual intercourse was done without consent of the victim or that the consent, if any was obtained by fraud, force, threat intimidation, deceit or impersonation or that the victim was under the age of fourteen years, the law is that a girl under fourteen years cannot give consent; (iii) that the victim was not the wife of the Appellant; (iv) that the Appellant had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not; and (v) that there was penetration- Julius Vs State (2019) LPELR 48491 (CA), Enang Vs State (2019) LPELR 48682(CA), Idam Vs Federal Republic of Nigeria (2020) LPELR 49564(SC).
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It was not in contest in this case that the victim was thirteen years old at the time the offence was said to have been committed, so she could not have legally given consent and neither was it in contest that the victim was not the wife of the Appellant at the time. It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eve witness who saw the accused person committing the offence charged. Any one of the methods is sufficient- Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.
In proving the ingredients of the offence against the Appellant, the Respondent called in aid the evidence of five witnesses- the victim, her father,
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two investigating Police Officers and a Senior Nursing Officer – and tendered two documents, the confessional statement of the Appellant and a medical report, Exhibits A and B. The record of appeal shows that when the Respondent sought to tender the confessional statement, the Appellant took objection to it and consequent on which the lower Court conducted a trial-within-trial. The records show that at the conclusion of the trial-within-trial the lower Court delivered a considered Ruling wherein it found that the confessional statement was voluntarily made by the Appellant before admitting same in evidence as Exhibit A.
It is trite law that findings of fact made by a trial Court in a trial within trial are based on the credibility of witnesses after watching their demeanour and an appellate Court should not upset such findings- Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360, Abiodun Vs State (2013) 9 NWLR (Pt 1358) 138. The Appellant did not appeal against the Ruling of the lower Court on the trial within trial either at the time it was delivered or as part of this appeal against the final judgment. The law is that, in these circumstances, the finding of the
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lower Court on the voluntariness of the confessional statement is binding on the parties and conclusive and cannot be tampered with by this Court- Ogbu Vs State (2017) 8 NWLR (Pt 1567) 236, Emeka Vs Okoroafor (2017) 11 N\VLR (Pt 1577) 410 and Interdrill (Nig) Ltd Vs United Bank for Africa Plc (2017) 13 NWLR (Pt 1581) 52.
It is trite law that if a confessional statement is admitted after a trial-within-trial, an accused person cannot argue that he did not make the confession voluntarily without first impugning the trial-within-trial- Bouwor Vs State (2016) 4 NWLR (Pt 1502) 295, Lalapu Vs Commissioner of Police (2019) 16 NWLR (Pt 1699) 476, Sale Vs State (2020) 1 NWLR (Pt 1705) 205. By not appealing against the findings made in the trial-within-trial, the Appellant accepted the finding of the lower Court that he made the confessional statement voluntarily to be true and correct. A read through the contents of the confessional statement, Exhibit A, as reproduced in the lead judgment shows a clear, direct, positive and unequivocal confession by the Appellant to the commission of the offence charged. The Appellant admitted having sexual intercourse with the
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victim on several occasions, the circumstances of and places where the sexual intercourse occurred and that he knew that the victim was pregnant and that he was the one responsible for the pregnancy. With the confession of the Appellant, the question of penetration of the vagina of the victim ceases to be in controversy- Idam Vs Federal Republic of Nigeria (2020) LPELR 49564(SC).
It is trite law that a Court is entitled to convict an accused defendant solely on the basis of his direct, positive and unequivocal confession so long as it is satisfied of its truth, even without corroboration. In such circumstances, there is no need for a trial Court to look for evidence outside the confessional statement-Idoko Vs State (2018) 6 NWLR (Pt 1614) 117, State Vs Ahmed (2020) LPELR 49497(SC). This is premised on the reasoning that what an accused person says against his interest without police influence is most likely to be true- Igba Vs State (2018) 6 NWLR (Pt 1614) 44, Essien Vs State (2018) 6 NWLR (Pt 1614) 167, Fulani Vs State (2018) LPELR 45195(SC), Hamza Vs State (2019) LPELR 47858(SC) or (2019) 16 NWLR (Pt 1699) 418. In Ogu Vs Commissioner of Police (2018) 8
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NWLR (Pt 1620) 134, the Supreme Court made the point thus:
“Of all methods of proving the guilt of an accused person beyond reasonable doubt, a confessional statement, which is voluntarily made and which is direct, positive and satisfactory proved, is the most potent of all coming as it were, “from the horse’s mouth”. A free and voluntary confession of an accused person, if it is direct and positive and satisfactorily proved, should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further corroboration to warrant a conviction …”
The records of appeal show that, notwithstanding the above, the lower Court did look outside the confessional statement for corroborative evidence and it found it in the testimony of the fifth prosecution witness, Senior Nursing Officer, and in Exhibit B, the medical report confirming the pregnancy of the victim, and which the Appellant admitted being responsible for. The lower Court found that there was no better evidence of penetration of the vagina of the victim than the evidence of the pregnancy, and I
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totally agree. The finding of the lower Court that the Respondent led cogent, credible and unassailable evidence to prove the charge against the Appellant beyond reasonable doubt cannot be faulted.
It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in this appeal and I hereby dismiss same. I affirm the judgment of the High Court of Kano State delivered in Charge No K/39C/2013 by Honorable Justice Aisha R. D. Mohammed on the 11th of May, 2016 as well as the conviction of and sentence passed on the Appellant therein.
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Appearances:
TONYE KRUKRUBO, Esq. For Appellant(s)
DALHATU YUSUF DADA with him, Faridah Wada Umar For Respondent(s)
