JIBRIN v. STATE (2022)

JIBRIN v. STATE

(2022)LCN/16940(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, March 30, 2022

CA/G/105C/2021

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ALIYU JIBRIN APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT IN A CRIMINAL TRIAL, WHERE THE ACCUSED PERSON PLEADS NOT GUILTY TO THE ALLEGATION(S) IN A CHARGE, ALL THE CONSTITUENT ELEMENTS OF THE OFFENCES CHARGED ARE PUT IN ISSUE

In a criminal trial, where the accused person pleads not guilty to the allegation(s) in a charge, all the constituent elements of the offence(s) charged are put in issue. The trial Court, after receiving evidence, both in proof and in defence of the offence(s) charged, will deal with the evaluation of facts, belief or disbelief of witnesses and findings and conclusions based on the evidence accepted by the Court. Then the trial Court will briefly summarise the case of either party. This does not mean producing verbatim the evidence of the prosecution witnesses and defence witnesses one by one, but it does mean using such evidence to tell a coherent and connected story. Then the Court will decide which story to believe. Having made his findings of fact, the trial Judge will then draw the necessary inference or conclusion from the facts as found. Finally, the trial Court will discuss the applicable law against the background of facts as found. From an examination of the judgment of the trial complaint complained against, I am unable to see the justification for the complaint of the Appellant as the basic components of a good judgment are reflected therein. The essential focus should be on whether the learned trial Judge made proper findings and reached the correct conclusion/judgment upon the facts before him. It is not the method or approach that necessarily determines those ends. A judgment will not be set aside simply on the method of assessment of the evidence or approach to the entire case he may have adopted. It is no cause for worry that different Judges adopt varied approaches. See Okulate V Awosanya (2000) LPELR-2529(SC) 15-17, per Uwaifo, JSC. In the case of Usiobaifo V Usiobaifo (2005) 1 SC (Pt. II) 60 at 70, para 4, Tobi, JSC stated thus: “Judgment writing is not an arithmetical or geometric exercise which must answer exactly to laid down rules in the field of mathematics. A Judge is not bound to follow a method or methodology stated by counsel in the brief. Once a judgment of a trial Judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief, arguments of counsel in counsel are in the matter, reactions of the Judge to the arguments, and the final order, an appellate Court cannot hold that the judgment is not properly written.” PER SANKEY, J.C.A.

THE CONDITION THAT MUST BE FULFILLED IN ORDER TO AFFECT A JUDGEMENT AND HAVE IT SET ASIDE FOR BREACH OF FAIR HEARING

WHETHER OR NOT A PARTY HAS BEEN DENIED HIS RIGHT TO A FAIR HEARING IS TO BE JUDGED BY THE NATURE AND CIRCUMSTANCES SURROUNDING A PARTICULAR CASE

THE STANDARD OF PROOF IN A CRIMINAL OFFENCE SUCH AS RAPE

The law is trite that in any criminal offence, such as rape punishable under Section 283 of the Penal Code, the standard of proof remains undiluted as prescribed by our law and orchestrated within the provisions of Section 135 of the Evidence Act, 2011. Courts have repeatedly pronounced on the prescription of proof beyond reasonable doubt in a host of decisions, some of which are: State V Obobolo (2017) LPELR-48405(SC), Mbang V State (2013) 7 NWLR (Pt. 1352) 48, Adekoya V State (2012) 9 NWLR 68. This standard of proof demands that it is not enough for the prosecution to suspect a person of having committed a criminal offence. There must be evidence which identified the person accused of the offence. PER SANKEY, J.C.A.

THE POSITION OF LAW ON PROOF BEYOND REASONABLE DOUBT

Nonetheless, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means that the prosecution should establish the guilt of the accused person with compelling and conclusive evidence. The law will fail to protect the community if it admits of any or all fanciful possibilities to deflect the course of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, then the case is proved beyond reasonable doubt. However, nothing short of that will suffice. See Ofordike V State (2019) LPELR-46411(SC) 8-9, C, State V Obobolo (supra) 17-20, A and Ugwanyi V FRN (2012) 8 NWLR (Pt. 1302) 384, 399, B.
How is a case proved beyond reasonable doubt? The law has established or approved three methods for proof of criminal offences by the prosecution in any criminal trial. These methods include: (i) By admissions/confessions of the person accused of the crime; (ii) by direct oral evidence i.e., evidence of witnesses who saw and heard; (iii) by circumstantial evidence. In this latter category, it is often said that witnesses can lie, but circumstances do not. In that sense, circumstantial evidence affords better proof beyond reasonable doubt. See Taiye V State (2018) LPELR-44466(SC) 15, A, per Sanusi, JSC; Ugboji V State (2017) LPELR-43427(SC) 29-30, E, per Sanusi, JSC, Bille V State (2016) LPELR-40832(SC) 15, A, per Ngwuta, JSC, Mohammed V State (2007) LPELR-1894(SC) 12, E, per Tobi, JSC, Onuoha V State (1989) LPELR-2704(SC) 7-8, G, per Oputa, JSC and Adio V State (1986) LPELR-183(SC) 22-23, G, per Oputa, JSC. Therefore, the prosecution in this case had their work cut out for them but they rose to the occasion. PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Borno State in Charge No. BOHC/MG/CR/44/2020 delivered on 31st March, 2021 by A.B. Kumalia, J.

The facts leading to the appeal stated succinctly, are that the Appellant was arraigned and tried before the lower Court for the offence of rape punishable under Section 283 of the Penal Code. This was based on a complaint made to the police on 07-02-20 that the Appellant employed the service of one Rabi Alhassan, a girl of 14 years old, as a housemaid in his house. He subsequently raped Rabi in the sitting room of his house. As a result, she sustained injuries to her private part. Following an investigation into the allegation, the Appellant was arrested, arraigned and charged before the lower Court on the following charge:
“That you Aliyu Jubril on or about the 6/2/2020 at about 1200hrs at Tudun Wada behind Borno Express Maiduguri which is within the jurisdiction of this Honourable Court committed rape on one Rabi Alhassan 14 yrs old of Jajeri Ward Maiduguri in that you forcefully had sexual intercourse with her without her consent and thereby committed an offence punishable under Section 283 of the Penal Code Law of Borno State, 1994.”

The Appellant pleaded not guilty to the charge and the case proceeded to full trial. To prove the charge, the Respondent adduced evidence through nine (9) witnesses and Exhibits ‘A’ to ‘I’. In his defence, the Appellant testified and called three (3) other witnesses. At the close of trial, Counsel for both parties addressed the lower Court on the issues of facts and law arising. Thereafter, the lower Court delivered judgment wherein it found the Appellant guilty as charged, and sentenced him to a term of five (5) years imprisonment, in addition to pay a fine of N500, 000.00, in default of which he is to serve an additional term of five (5) years imprisonment.

Dissatisfied with the judgment, the Appellant filed an Appeal to this Court on 12th April, 2021 vide his Notice and Grounds of Appeal, wherein he complained on five (5) grounds. Surprisingly, no reliefs were included in the Notice of Appeal.

At the hearing of the Appeal on 08-02-22, N.A. Dammo Esq., learned Counsel for the Appellant, adopted the arguments in the Appellant’s brief of argument settled by him and filed on 24-12-21, in urging the Court to allow the appeal, set aside the decision of the lower Court and discharge and acquit the Appellant. On his part, learned Counsel for the Respondent, A.S. Kaigama Esq., DDPP Ministry of Justice Borno State, adopted the Respondent’s Brief of argument filed on 17-01-22 and settled by K.S, Lawan Esq., Hon. Attorney General Borno State, in urging that the appeal be dismissed and the decision of the lower Court be affirmed.

The Appellant in his brief of argument filed on 24-12-21, distilled two (2) issues for the determination of the appeal as follows:
1. “Whether in the circumstances of the lower Court first holding and finding that the Respondent has proved its case beyond reasonable doubt against the Appellant before considering the defence of the Appellant, has accorded the Appellant fair hearing. (Ground 2)
2. Whether in the circumstances of the evidence on record the lower Court was not wrong in coming to the decision that the Respondent did prove its case against the Appellant beyond reasonable doubt. (Grounds 1, 3, 4 and 5)”
The Respondent adopted the issues for determination formulated by the Appellant with slight modifications which are insignificant as they do not change the character of the Appellant’s issues. Thus, the issues of the Appellant are adopted in the determination of the appeal. The two issues shall be addressed together.

ARGUMENTS:
Under issue one, the Appellant’s main grouse as articulated by his Counsel is with the style adopted by the learned trial Judge in writing his judgment. The substance of his complaint revolves around the manner in which the learned trial Judge considered the evidence presented by the prosecution before he considered the case of the accused person and arrived at the conclusion that the Respondent had proved the ingredients of the offence charged beyond reasonable doubt.

Specifically, learned Counsel for the Appellant submits that the lower Court in its judgment at pages 71-87 of the printed record, listed and captured the submissions of the prosecution and then went on to consider each of the ingredients of the offence of rape as listed by the prosecution. Thereafter, it found that the ingredients had been proved beyond reasonable doubt. That it was only after this finding that the lower Court considered the defence of the Appellant. Counsel submits that in a criminal trial, the trial Judge has a duty to consider all the evidence before him and the guilt of the accused must be proved beyond reasonable doubt. He must give adequate consideration to the case of both parties before coming to a decision. Reliance is placed on a number of decisions including Bakare V State (1987) 3 SC 1, 36 & Adamu V State (1991) LPELR-73(SC).

Counsel contends that the lower Court, by first evaluating the evidence of the prosecution and making findings without having placed the evidence of the accused side by side, has deprived the Appellant of fair hearing and thus occasioned a miscarriage of justice. It is therefore his contention that the style adopted by the lower Court in its judgment put the defence in a situation where he should prove his innocence; and that this contravenes the constitutional provision where the accused is presumed innocent until proven guilty.

In respect of issue two, Counsel submits that from the evidence of the prosecutrix, it would seem that the alleged rape happened on the same day on which she assumed work as a house-help in the Appellant’s house. However, going by the Appellant’s evidence, the prosecutrix spent only two days as an employee. He contends that on the day of the incident as related by the prosecutrix, when his wife returned to the house at about 5:00pm, the prosecutrix did not tell his wife anything. Counsel therefore submits that the evidence relied on by the lower Court was full of contradictions thereby making it unreliable.

Counsel further submits that even though the prosecutrix stated that her pant and tights were stained with blood as a result of forceful sexual intercourse which the Appellant had with her, there is no forensic evidence to rule out the possibility that such blood was as a result of her normal menstrual flow. This, he contends, is fatal to the case of the Respondent and so, should not have been the basis for the conviction of the Appellant.

In addition, Counsel submits that the lower Court’s recourse to other pieces of evidence, such as the medical report, as corroborative evidence, occasioned a miscarriage of justice. He contends that the medical report did not clearly state that the semen found upon an examination of the prosecutrix was that of the Appellant. In addition, the report was made five or six days after the incident and therefore could not have revealed the bruises allegedly seen which are synonymous with forceful entry.

Counsel considered these pieces of evidence as contradictions and discrepancies in the prosecution’s case which rendered the case of the prosecution unreliable. He therefore submits that where there are material contradictions in the prosecution’s case raising doubts, such doubts ought to be resolved in favour of the accused person. Reliance is placed on a host of cases, among which is Adisa V State (2019) 3 NWLR (Pt. 1660) 488, 500-501. Hence, Counsel submits that the lower Court erred in convicting and sentencing the Appellant on evidence which is unreliable. Counsel finally urged the Court to resolve both issues in favour of the Appellant, allow the appeal, set aside the conviction and sentence; and in its place, enter Judgment for the Appellant, discharging and acquitting him.
In response to the submissions under issue one, learned Counsel for the Respondent submits that the arguments of the Appellant are hinged on mere technical justice and have no correlation to the breach of the Appellant’s right to fair hearing. Relying on Garba V FRN (2014) LPELR-24591(CA) 13, D-F, he submits that Courts will not allow technical justice to defeat substantial justice.

In this regard, Counsel submits that a Court has a discretion to decide the style it adopts in writing its judgment. Whether it commences with the evidence of the prosecution or that of the defence, what matters is that the trial Judge evaluates all the evidence placed before it from both sides before arriving at its decision. Reliance is placed on a couple of decisions, including Bello V State (2006) LPELR-7710(CA) 17-17, E-B. Counsel submits that in the instant case, the lower Court painstakingly evaluated the evidence placed before it by both parties arriving at a decision, and so the Appellant’s right to fair hearing was not breached.

In respect of issue two, Counsel submits that in order to prove the offence of rape against the Appellant, the prosecution must prove all the ingredients of the offence which he tabulated. More specifically, in respect of the first ingredient of the offence, to wit: that the accused had sexual intercourse with the prosecutrix, Counsel refers to the evidence of PW4 – the prosecutrix herself, Exhibit H – the statement made by the prosecutrix at the Police Station (tendered by the defence), the evidence of DWII (Appellant’s wife), Exhibits A1 & A2 (the bloodstained pant and tights of the prosecutrix) and Exhibit I (the medical report).

In proof of the second ingredient, to wit: that the prosecutrix was not the wife of the accused, Counsel refers to the evidence of PWII, the mother of the prosecutrix. In respect of evidence in proof of the third ingredient, to wit: that the accused had the mens rea to have sexual intercourse with the prosecutrix without her consent or that the accused person acted recklessly, not caring whether the prosecutrix consented or not, he refers to Exhibits B, G, AJ, AJ2 and H which shows that the Appellant’s action to forcefully rape the prosecutrix was premeditated.

On the fourth ingredient of the offence of rape which is: that the accused had sexual intercourse with the prosecutrix without her consent being fourteen (14) years old, Counsel refers to the evidence of the victim herself as PW4 and Exhibit I which establishes that the sexual intercourse the Appellant had with the victim was forceful and without her consent.

Finally, on the fifth ingredient of the offence, which is that there was penetration, Counsel refers to the testimony of the victim herself, PW4, which was corroborated by the evidence of the medical doctor, PW9 wherein upon a vaginal examination conducted on her, he described the injuries sustained by the victim, Exhibits A1 & A2 being the bloodstained pant and tights of the victim, the evidence of DW4, a Professor of Gynaecology who was a witness called by the Appellant and also Exhibit I, the medical report issued based on the examination conducted on the prosecutrix by PW9. Grounded on all these pieces of evidence, Counsel submits that the learned trial Judge was right when he found that penetration was proved.

In respect of the denial of the Appellant to the charge, Counsel submits that the lower Court relied on the medical report, Exhibit 9, which played a major role in proving the case. On the contradictions alleged in the evidence of the prosecution witnesses, Counsel submits that contradictions that will weigh on the mind of the Court must be such that are fundamental to the real question before the Court. Therefore, for such contradictions to be fatal, they must be of such a nature that they create reasonable doubt in the mind of the Court. Reliance is placed on some decisions such as Mahmuda V State (2019) LPELR-46343(SC).

On the standard of proof required to prove a criminal charge before a Court, Counsel submits that proof beyond reasonable doubt under Section 135 of the Evidence Act, 2011 (as amended) is not proof beyond a shadow of doubt. He relies on Ezeani V FRN (2019) LPELR-4800(SC) 23, A-C, and others. Counsel also submits that the Respondent proved the charge against the Appellant by means of both direct and circumstantial evidence, which is acceptable in law. He relies on Igbikis V State (2017) LPELR-41667(SC) 13-14, F-D. Based on these submissions, Counsel urged the Court to resolve both issues against the Appellant, to dismiss the appeal and affirm the decision of the trial Court.

RESOLUTION OF ISSUES ONE AND TWO:
As highlighted in the Appellant’s submissions, the substance of the complaint of the Appellant against the judgment of the lower Court is centred on the manner in which the learned trial Judge, first considered the evidence presented by the prosecution before it considered the defence of the accused person. The record shows that the lower Court highlighted the ingredients of the offence of rape as set out under Section 283 of the Penal Code. He then examined the evidence of the prosecution with a view to ascertaining whether or not each of the five ingredients had been established. At the end of each of such consideration, he made a finding on whether the evidence submitted had proved the essential ingredient of the offence. After considering the evidence of the prosecution, the learned trial Judge proceeded to examine the Appellant’s defence to the allegation in the charge. Having considered the case as presented by both parties, the learned trial Judge arrived at the final conclusion that the Respondent had proved the charge against the Appellant beyond reasonable doubt. I fail to see how this style adopted by the lower Court infringed upon the Appellant’s right to fair hearing entrenched in Section 36 of the Constitution, which right is based on the twin Common Law principles of law, to wit: Audi alterem partem and Nemo Judex in causa sua.

In a criminal trial, where the accused person pleads not guilty to the allegation(s) in a charge, all the constituent elements of the offence(s) charged are put in issue. The trial Court, after receiving evidence, both in proof and in defence of the offence(s) charged, will deal with the evaluation of facts, belief or disbelief of witnesses and findings and conclusions based on the evidence accepted by the Court. Then the trial Court will briefly summarise the case of either party. This does not mean producing verbatim the evidence of the prosecution witnesses and defence witnesses one by one, but it does mean using such evidence to tell a coherent and connected story. Then the Court will decide which story to believe. Having made his findings of fact, the trial Judge will then draw the necessary inference or conclusion from the facts as found. Finally, the trial Court will discuss the applicable law against the background of facts as found. From an examination of the judgment of the trial complaint complained against, I am unable to see the justification for the complaint of the Appellant as the basic components of a good judgment are reflected therein. The essential focus should be on whether the learned trial Judge made proper findings and reached the correct conclusion/judgment upon the facts before him. It is not the method or approach that necessarily determines those ends. A judgment will not be set aside simply on the method of assessment of the evidence or approach to the entire case he may have adopted. It is no cause for worry that different Judges adopt varied approaches. See Okulate V Awosanya (2000) LPELR-2529(SC) 15-17, per Uwaifo, JSC. In the case of Usiobaifo V Usiobaifo (2005) 1 SC (Pt. II) 60 at 70, para 4, Tobi, JSC stated thus: “Judgment writing is not an arithmetical or geometric exercise which must answer exactly to laid down rules in the field of mathematics. A Judge is not bound to follow a method or methodology stated by counsel in the brief. Once a judgment of a trial Judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief, arguments of counsel in counsel are in the matter, reactions of the Judge to the arguments, and the final order, an appellate Court cannot hold that the judgment is not properly written.”
This decision was followed in Susainah (Trawling Vessel) V Abogun (2006) LPELR-7732(CA) 35-36, paras G-E, per Galinje, JCA (as he then was).
Again, in Stephen V State (1986) LPELR-3117(SC) 48-50, Oputa, JSC, in proffering what he considered to be a proper and scientific approach to the difficult problem of writing a judgment, laid out guidelines as follows:
“Stage 1: If the plea of the accused person is guilty, no issues arise and no evidence is required. The trial Court can proceed straight to Judgment. But if the plea is not guilty (as it is bound to be in murder trials) then all the constituent elements of the offence or offences charged are put in issue. And the onus lies heavily on the prosecution to prove the offence charged beyond reasonable doubt.
Stage 2: When issues are thus joined, evidence is led in proof or disproof of each issue. At this stage, the duty of the trial Court is merely to record the evidence led and observe the demeanour of the witnesses called by either party.
Stage 3: This is the most important and crucial stage as it deals with the perception of facts, evaluation of facts, belief or disbelief of witnesses and findings and conclusions based on the evidence accepted by the trial Court.
At this stage, the trial Court will briefly summarise the case of either party. This does not mean reproducing verbatim the evidence of the prosecution witnesses and of defence witnesses one by one but it does mean using such evidence to tell a coherent and connected story. Having done this, the trial Judge will then decide which story to believe. Here, it is important to emphasize that the overworked expressions “I believe” or “I do not believe” have no intrinsic magic power or potency. There is nothing wrong in believing one side and disbelieving the other if either the belief of the evidence and the probabilities which on the totality of that evidence, it is natural to expect.
Stage 4: Having exercised his prerogative to believe or disbelieve, having made his findings of fact, the trial Court will then draw the necessary inference or conclusion from the facts as found. Finally, the trial Court would then discuss the applicable law against the background of the facts as found. Any judgment that follows the above pattern or something similar to it will be of invaluable help to the Courts of Appeal as well as to the parties to the appeal. One would only wish that our trial Courts do approach the difficult task of writing judgment in some methodical and orderly fashion.” (Emphasis supplied)
Yet again, in the case of Sanusi V Ameyogun (1992) LPELR-3008(sc) 27, paras E-G, Olatawura, JSC held instructively as follows:
“The writing of Judgment is a question of style, whichever style one prefers to adopt, it must show a clear understanding of the issues raised by the pleadings and evidence. It must be a dispassionate appraisal of the evidence led, a consideration of the submission made and above all, one must bear in mind the onus of proof.”
Finally, in Mbani V Bosi (2006) LPELR-1853(SC) 23-24, paras F-A, Onnoghen, JSC (later CJN) also stated thus:
“It is important to note that there is no particular format in writing a judgment. What matters is the content of the judgment on the issues and once the judgment contains the traditional elements, I hold the view that it is not the duty of an appellate Court to interfere therewith merely on the ground of style, which is personal. It is very clear, as demonstrated in this judgment that the learned trial Judge, notwithstanding his style of writing the judgment, identified the issues, evaluated the evidence adduced and made clear findings of facts and arrived at a definite conclusion.” (Emphasis supplied).
The law is well settled that the judgment of a Court, which must demonstrate a thorough and painstaking reflection and balancing of the case of the parties, cannot be vitiated simply because of the Judge’s style of writing. See Uzuda V Ebigah (2009) LPELR-3458(SC) 23 paras E-F, per Mohammed, JSC.

In the light of these decisions, I have examined the judgment of the trial Court against the backdrop of the complaints of the Appellant. It is very apparent that the learned trial Judge, notwithstanding his style of writing the judgment, identified the issues, evaluated the evidence adduced and made clear findings of facts and arrived at a definite conclusion. I therefore discountenance the complaint in this regard as being baseless.

In respect of the contention that the style adopted by the learned trial Judge breached the Appellant’s right to fair hearing, it must be emphasised and reiterated that fair hearing is not a technical doctrine but a rule of substantial justice. Black’s Law Dictionary, Ninth Edition at page 789, defines the phrase “fair hearing” as:
“A judicial or administrative hearing conducted in accordance with due process.”
In essence, fair hearing means giving equal opportunity to be heard. A party cannot complain of a breach of the fair hearing principles where he has been given an opportunity to advocate his case equal to that given to the opposing party.

Thus, in order to affect a judgment and have it set aside for breach of fair hearing it must be shown that fair hearing was infringed; or fair hearing was clearly threatened with infringement; or there was a likelihood of infringement of fair hearing. It is therefore not sufficient that fair hearing was merely suspected to have been infringed. See Metropolitan Properties Co. Ltd V Lanon (1968) 3 All ER 304, per Denning, Mr.
In the instant appeal, there is no evidence before the trial Court that the Appellant was denied a fair hearing. From the printed record, the Appellant was duly represented by Counsel at all times during the proceedings, his Counsel cross-examined all the prosecution witnesses unhindered, the Appellant testified in his defence and called three other witnesses and he was availed all the opportunity to defend himself from the charge against him. The evidence adduced by both sides was reviewed and considered by the learned trial Judge before he made findings and gave his verdict. Learned Counsel for the Appellant in his brief of argument, has not made any specific complaint that the Respondent was granted advantages or special favours in the presentation of its case which were denied the Appellant. And the style adopted in writing the judgment certainly did not confer any undue advantage on the Respondent that overreached the Appellant.
A complaint founded on a denial of fair hearing is an invitation to the Court hearing the appeal to consider whether or not the Court against which the complaint is made, has been generally fair on the basis of equality to all the parties before it. Counsel has not indicated or shown in what circumstances the Appellant was denied fair hearing, apart from the style of the learned trial Judge in writing the Judgment. It is not enough for Counsel to say that the right to fair hearing was breached in a matter; he must show such by the evidence available and the circumstances of such breach. And the evidence must be that the party was not given an opportunity to state his case which he wanted to state in his own way. As has been stated earlier, fair hearing is not a technical doctrine, but a rule of substance.

With reference to the Judgment of the lower Court, what is important is that the trial Judge in making his findings as an unbiased umpire, should not pick only evidence which vindicates the case of one party and dump the evidence that is favourable to the other party. Instead, a trial Judge has the duty to place all the evidence on an imaginary scale of justice and see where the pendulum tilts in the measuring process. By our evidential rules, the Judge must give judgment in favour of the party where the evidence tilts favourably.
The justice of a case and statutory requirements will not be met if the trial Court considers only one side of a case. Adequate consideration must be given to both sides. In discharging this duty, the Judge must evaluate all the evidence. It is not the justice of a case if the Judge, without evaluating the evidence, holds that he believes one side and disbelieves the other. Only an evaluation of the evidence will logically lead to his reasons for believing or disbelieving. However, Judges differ in style. Nevertheless, whichever style a Judge uses or adopts, the important thing is that he considers all the evidence before him by evaluation before arriving at his conclusion, which is the finding. See Daniel Tayar Ent. (Nig) Co. Ltd V Busari (2011) LPELR-923(SC) 49, Azuokwu V Nwokanma (2005) LPELR-690(SC) 13, C-E, Odi V Iyala (2004) LPELR-2213(SC) 22, D-F and Awopejo V State (2001) LPELR-656(SC).

The Supreme Court in the case of Pam V Mohammed (2008) LPELR-2895(SC), 26-27, per Oguntade, JSC, held as follows –
“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its judgment…
It is wrong and improper to approach the meaning of fair hearing by placing reliance on any a priori assumptions as to its technical requirements. The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a Court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed prerequisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across their case.”
See also Dangote Gen. Textile Products Ltd V Hascon Assocs. Nig. Ltd (2013) LPELR-20665(SC) 21, A-B; INEC V Musa (2003) LPELR-24927(SC) 94, A-B, per Tobi, JSC. Consequently, based on all the above findings, I reject the submission of learned Counsel for the Appellant on fair hearing. It totally lacks merit.

In respect of issue two, the substance of the Appellant’s complaint is that there were material contradictions and discrepancies in the evidence of the prosecution witnesses which cast doubt on the case of the prosecution and that such doubt ought to have been resolved in favour of the Appellant. The contradictions and discrepancies highlighted by the Appellant are briefly as follows:
1. Firstly, in respect of when the incident alleged occurred. He says that from the evidence of the PW4, the Appellant had forceful sexual intercourse with her on the same day that she resumed work as a house-help in his house. However, from the evidence he presented to the Court in his defence, the victim spent only two days in his house.
2. Secondly, that although PW4 said he took his wife to the destination where she plaited her hair, on the contrary, his wife went there by herself.
3. Thirdly, that upon the wife’s return to the house at 5:00pm, PW4 did not tell her anything about the incident.
4. Fourthly, that there was no forensic test conducted on the blood-stained pant and tights of PW4, Exhibits A1 and A2, to exclude the possibility that the bloodstains were as a result of her menstrual flow in view of evidence of DW2 that at the time PW4 came to the house, she was having her menstrual cycle.
5. Fifthly, that the medical report, Exhibit I, issued after the examination of PW4 and which was used as evidence in corroboration of PW4’s evidence, did not state that it found the semen of the Appellant in the PW4.
6. Sixthly, that the medical report which was issued five or six days after the alleged rape could not have shown alleged bruises synonymous with forceful entry.

Based on these, Counsel submits that the evidence relied on by the prosecution to convict the Appellant was unreliable and raised doubts that ought to have been resolved in favour of the Appellant.

I note that this same complaint of material contradictions and discrepancies in the evidence of the prosecution, was made before the trial Court. The learned trial Judge, at pages 86 of the record addressed the complaint and examined each piece of evidence alleged to be a contradiction and/or discrepancy and found that there was no such contradiction or discrepancy that could have negatively impacted on the prosecution’s evidence. Upon an examination of the complaints made by the Appellant before the lower Court, it is apparent that the alleged contradictions and discrepancies raised in this appeal are different from those raised at the lower Court and upon which there was a pronouncement. Nonetheless, since the conviction of the Appellant must be based on credible evidence adduced in proof of the charge, they will be addressed with a view to a determination, one way or the other.

On the matter of dates and timing, from the evidence before the trial Court the evidence of PW4(the prosecutrix) and as contained in Exhibit H, (her statement of complaint made to the Police on 07-02-20), the prosecutrix was taken to the Appellant’s house as a house-help on 04-02-20. That she was sexually assaulted on 05-02-20 and left the house on 06-02-20. The medical report, Exhibit I, confirms that the information/history PW4 gave to the doctor, PW9, was that she was assaulted on 05-02-20. The evidence of DW2 (the Appellant’s wife) is that it was on 06-02-20 that she went out of the house to plait her hair and left PW4 alone in the house and that PW4 finally left their house on 07-02-20 (i.e., after the incident). She also stated that her husband told her to pay PW4 for two days work. In addition, the letter of the Appellant’s Lawyer to the Commissioner of Police alleging defamation of character against PW4, expressly states that PW4 told the Appellant that she was leaving his house on 06-02-20. It is in evidence that PW4 indeed left the Appellant’s house on that date. Thus, direct evidence from the main characters, to wit: the victim (PW4) and the Appellant’s own witness (DW2), the letter by the Appellant’s Lawyer(Exhibit AJ3) and the medical doctor’s/report (Exhibit I) when synchronized, establish that the sexual assault occurred sometime between 05-02-20 and 06-02-20, while PW4 left the Appellant’s house the next day.

However, even if there is any contradiction in the dates given by the witnesses, it is immaterial and it amounts to a mere discrepancy which does not go to the root of the case. The proven facts established by the prosecution are consistent that sometime on or about 05-02-20, PW2 handed over PW4, a 14-year-old girl, to the Appellant and his wife to serve as their house-help, the next day, 06-02-20 when the wife went out to plait her hair and apply henna design on her body, the Appellant also briefly went out only to return and sexually assault PW4. Pursuant to the threats of death the Appellant issued to PW4, on the return of his wife (DW2) to the house, she (PW4) did not report the assault to the wife but left the house the very next day after the assault and rather, reported the assault to PW3 and PW2 (her mother and Aunt).

Her mother (PW3) testified that when PW4 came home, she was crying and walking awkwardly. PW5, PW6 and PW6 all testified as to how the Appellant, upon being confronted with the accusation of PW4 at the house of PW2, knelt down and begged them not to report the matter to the Police. He even promised that he would give money for PW4 to be taken to hospital for treatment. They however refused to hearken to his pleas and the case was subsequently reported to the Police and PW4 made a statement of complaint to the Police on 07-02-20 (Exhibit H).

However, in the event that there were any inconsistencies in the evidence of the prosecution witnesses as to dates and timing, they did not amount to contradictions sufficient to discard the largely consistent, clear and believable evidence presented at the trial Court. The evidence was found to be cogent, cohesive and compelling and I have no reason to depart from the findings of the learned trial Judge who saw and heard the witnesses, on this.

In respect of the attacks directed at the medical evidence placed before the lower Court by the Appellant, Exhibit I and the explicit evidence of PW9, the medical doctor who examined the Appellant a couple of days after the sexual assault and issued the report, as well as the evidence of the Appellant’s own witness, DW4, an expert and Professor of Gynaecology, debunk all the fanciful possibilities thrown up by the Appellant that the bloodstains on PW4’s underwear was due to menstruation and that on the date of the examination, bruises could not have been visible. It is unimaginable that a medical doctor examining a patient, in this case, PW4, would be unable to decipher blood and injuries attributable to penetration as a result of rape and a girl experiencing her menstrual cycle. It is even more indicting that two or three days after the assault, the injury suffered by PW4, a 4cm laceration, was still very present and visible.

Finally, the absence of a test for semen is not fatal to the prosecution’s case as there were other pieces of evidence adduced that established that it was the Appellant that sexually assaulted PW4 on the date in question. The medical report specifically disclosed that PW4 suffered “laceration injury to her labia minora measuring 4cm” and her hymen was broken. The assessment of the medical doctor therein was: “There was evidence of injury on vaginal examination.”

The law is trite that in any criminal offence, such as rape punishable under Section 283 of the Penal Code, the standard of proof remains undiluted as prescribed by our law and orchestrated within the provisions of Section 135 of the Evidence Act, 2011. Courts have repeatedly pronounced on the prescription of proof beyond reasonable doubt in a host of decisions, some of which are: State V Obobolo (2017) LPELR-48405(SC), Mbang V State (2013) 7 NWLR (Pt. 1352) 48, Adekoya V State (2012) 9 NWLR 68. This standard of proof demands that it is not enough for the prosecution to suspect a person of having committed a criminal offence. There must be evidence which identified the person accused of the offence.

The consequences of the presumption of innocence in favour of a person as enshrined in Section 36(5) of the Constitution is that the burden placed on the prosecution to prove the guilt of the accused person beyond reasonable doubt must be satisfied.

Any doubt raised by an accused shall lead the Court to resolve this doubt in favour of the accused person.

Nonetheless, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means that the prosecution should establish the guilt of the accused person with compelling and conclusive evidence. The law will fail to protect the community if it admits of any or all fanciful possibilities to deflect the course of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, then the case is proved beyond reasonable doubt. However, nothing short of that will suffice. See Ofordike V State (2019) LPELR-46411(SC) 8-9, C, State V Obobolo (supra) 17-20, A and Ugwanyi V FRN (2012) 8 NWLR (Pt. 1302) 384, 399, B.

How is a case proved beyond reasonable doubt? The law has established or approved three methods for proof of criminal offences by the prosecution in any criminal trial. These methods include: (i) By admissions/confessions of the person accused of the crime; (ii) by direct oral evidence i.e., evidence of witnesses who saw and heard; (iii) by circumstantial evidence. In this latter category, it is often said that witnesses can lie, but circumstances do not. In that sense, circumstantial evidence affords better proof beyond reasonable doubt. See Taiye V State (2018) LPELR-44466(SC) 15, A, per Sanusi, JSC; Ugboji V State (2017) LPELR-43427(SC) 29-30, E, per Sanusi, JSC, Bille V State (2016) LPELR-40832(SC) 15, A, per Ngwuta, JSC, Mohammed V State (2007) LPELR-1894(SC) 12, E, per Tobi, JSC, Onuoha V State (1989) LPELR-2704(SC) 7-8, G, per Oputa, JSC and Adio V State (1986) LPELR-183(SC) 22-23, G, per Oputa, JSC. Therefore, the prosecution in this case had their work cut out for them but they rose to the occasion.

In the instant case, the Appellant was accused of raping PW4, Rabi Alhassan, a 14-year-old girl. In satisfaction of the requirement of proof beyond reasonable doubt, the trial Court considered all the evidence amassed by the prosecution in respect of each of the essential ingredients of the offence of rape (at pages 79-84 of the printed record). The position of the law in a rape case was articulated in the case of Mohammed V Kano State (2018) LPELR-43913(SC) 27-28, D, Okoro, JSC in the following words:
“In a rape case, corroboration means evidence which confirms the evidence of the prosecutrix. It is that evidence which tends to show that the story of the victim, the prosecutrix, is true and that it is the accused person that committed the crime. Such evidence need not be direct as this may not be possible as rape is not committed in the open. It is enough if it corroborates the said evidence in some material particular to the charge in question. However, where the child is a minor of some discernible age, her sworn evidence need no further corroboration. There is no law or statutory provision that in rape cases, evidence of the prosecutrix must be corroborated. However, it is a rule of prudence and the settled course of practice by the Court to seek for corroboration in rape cases.” (Emphasis supplied).
Thus, in respect of the offence of rape, Courts have always still looked for some independent evidence to show that the account of the prosecutrix is true, i.e., that the offence was committed by the accused person. This is especially so where the prosecutrix is a child of tender age. Based on the facts of a particular case, the nature of corroborative evidence that could suffice includes, but is not limited to: (a) medical evidence showing some injury to the private part or other parts of the prosecutrix’ body which may have been occasioned in a struggle; or (b) semen stains on her clothes or the clothes of the accused or at the place where the offence is alleged to have been committed – Aliyu V State (2019) LPELR-47421(SC) 18-24, E, Lucky V State (2016) LPELR-40541(SC), Posu V State (2011) 3 NWLR (Pt. 1234) 393, Ezigbo V State (2012) NWLR (Pt. 1326) 318.
However, as shown by the authorities referred to above, corroboration need not be direct evidence that the accused committed the offence charged. It need not amount to a confirmation of the whole account given by the prosecutrix. Yet, it must be completely credible evidence which corroborates the prosecutrix’ evidence in some aspect material to the charge. As was held in Lucky V State (2016) LPELR-40541(SC) 47-48, per Rhodes-Vivour, JSC, corroboration is evidence which supports the evidence of the prosecutrix. It is not restricted only to the evidence of a witness pointing to the Appellant as the person who committed the offence. This is evidently because sex is not an act that is usually performed in the presence of a third party. Instead, it is mostly a hidden act performed behind closed doors and away from prying eyes. It is quite rare to get a witness to give evidence on oath that he saw the Appellant have sex with the prosecutrix.

This is all the more reason why the evidence of PW4 the prosecutrix, PW3 her mother, PW2 her aunt, PW9 the medical doctor and Exhibit H the medical report, cannot be dismissed with a mere wave of the hand. This is because their testimonies constituted both direct and circumstantial evidence which established relevant facts (in consonance with Section 7 of the Evidence Act) as well as established the ingredients of the offence, which is that the Appellant did have sexual intercourse with the prosecutrix, a 14-year-old girl without her consent. Indeed, there is overwhelming evidence linking the Appellant with the crime.

In the face of the avalanche of evidence amassed against the Appellant, all he offered was a bare denial as the evidence of DW2 and DW3 was not helpful to him, and the evidence of DW4, the medical expert he called as a witness, further buttressed the prosecution’s case. The evidence of the PW1 to PW9 were uncontroverted and so were believed by the learned trial Judge. I am also satisfied that the trial Court rightly found that the charge of rape was proved against the Appellant beyond reasonable doubt, the standard required by law in criminal cases. Since no cogent reason has been given to warrant the interference with the sound findings of the learned trial Judge, I decline to do so. For these reasons, I resolve the both issues for determination against the Appellant and in favour of the Respondent.

In the result, I find the appeal devoid of merit. It fails and is dismissed.

Accordingly, I affirm the judgment of the High Court of Justice of Borno State in Charge No. BOHC/MG/CR/44/2020, delivered on March 31, 2021 by A.B. Kumalia J., as well as the conviction and sentence of the Appellant.

IBRAHIM SHATA BDLIYA, J.C.A.: I read in draft the judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, just delivered.

I agree with the reasoning and conclusion arrived at by my learned brother that the appeal has no merit. It is for the reasons adumbrated in the lead judgment, which I adopt as mine, that I too dismiss the appeal for being unmeritorious. Consequently, I affirm the judgment of the lower Court in its entirety.

EBIOWEI TOBI, J.C.A.: The Appellant in this appeal was convicted for the offence of rape. He was convicted for raping a 14 years old girl that was engaged to help his wife as a maid. The Appellant appealed against the decision of the lower Court. My learned brother, J. H. Sankey, JCA in the lead judgment just delivered rightly in my view dismissed the appeal, affirming the judgment of the lower Court. My Lord has in her characteristic manner adequately addressed all the issues raised and formulated for determination arising from the 5 grounds of appeal.

I would have just stop here but I will fall for the temptation to make a comment or two on the subject of fair hearing and the perceived contradictions by the Appellant’s counsel of the evidence of the Prosecution witnesses. My Lord, J. H. Sankey, JCA has addressed the law on fair hearing. I agree with my Lord. I will however state that a challenge on fair hearing is a serious challenge and when raised a Court should deal with it and view it with all seriousness. The apex Court has however made it clear that the subject of fair hearing should not be seen as a survival strategy for a bad case. In Orugbo vs Una (2002) 9-10 SC 61, the apex Court gave a caution on the misuse of the challenge of fair hearing. The Court held thus:
“There is need for caution in the application of the fair hearing provision in the Constitution. Where the facts of the case, as in this appeal, do not support the application of the provision, parties should not urge the Court to invoke the provision, and even if so urged, the Court should not succumb to the pressure. Both the respondents and the Court below saw breach of fair hearing principle by the Koko District Customary Court. I do not see any breach. The Court did a very good job and I commend it. It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation and the Court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless, or completely dead outside the facts of the case.”

I have gone through the record of appeal and the judgment of the lower Court, I cannot see my way clear in any way to agree with the Appellant that he was denied fair hearing.

On the issue of contradictions in the evidence of the Prosecution witnesses, I must make the point that while contradiction in the case of the prosecution can be fatal to its case, the law is settled that it is not all contradictions that can affect the judgment of the lower Court. It is not all contradiction in the evidence of the parties that should affect the outcome of the decision of a Court. For the contradiction to affect the outcome of a case or the decision, the contradiction must be material. See Idagu V the State (2018) LPELR-44343 and Uche v. State (2015) LPELR-24693.
The question is what amounts to material contradiction in law? The contradiction will be material if the witness of the prosecution contradict each other on the ingredients of the offence for which the Appellant is charged, in this instance, rape. The condition must relate to the ingredients of the offence in such a way that, it creates doubt in the mind of any reasonable person that the offence was committed by the Appellant. I will refer to a case or two on this point. In Dibie vs. State (2007) 3 SC (Pt.1) 176, the apex Court held:
“A material contradiction must go to a material point in the prosecution’s case, as to create doubt in the case that the appellant is entitled to benefit from. See the case of Ahmed v. The State (2002) FWLR (Pt. 90) 1358 at 1385; (2002) 18 NWLR (Pt. 746) 622.”
Similarly, in Ikemson & Ors vs. State (1989) I SC (Pt.2) 33, the apex Court held:
“when the evidence of witnesses violently contradict each other, then that is a danger signal. A trial Court should not believe contradictory evidence. Contradictory means what is says – contra-dictum-to say the opposite. Contradiction should be on a material issue to amount to material contradiction. Whether it is the 1st, 2nd or 3rd appellants who shot P.W.1 is not material. Whether the P.W.2 was shot on the leg or thigh is again not material. What is material in a charge of armed robbery like the present charge is that the appellants were armed with a gun and that they made use of that gun to facilitate the robbery. The need for explanation as postulated in Onubogu & Anor vs. The State (1974) 9 S.C.1 at P.20 arises only when there are material contradictions.”
It is my firm view that the contradictions that the Appellant alleged are not contradiction that relate to the ingredient of the offence. They are not material contradictions. My Lord has brought out the points one after the other, I will not go through all that again.

For the above reasons and much more for the fuller reasons advanced in the lead judgment by my learned brother, J. H. Sankey, JCA, this appeal fails and it is dismissed.