MATO v. STATE
(2022)LCN/17076(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, January 28, 2022
CA/KN/19C/2021
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
DAUDA MALAM MATO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE INGREDIENTS OF THE OFFENCE OF RAPE
Counsel on both sides had stated what constitutes the ingredients of offence of rape and cited several authorities to support their submissions, particularly, the element of proof of penetration of the victim’s vagina by the assailant. See the case of State Vs Masiga (2017) LPELR-43474 SC where it was held:
“I have stated earlier that there is no doubt that in charge of rape, penetration must be proved…… On what prosecution must prove in charge of rape, this Court in Jegede Vs The State (2001) 14 NWLR (sic) (Pt 733) held that:
“whether the prosecutrix is a minor or an adult, to secure a conviction for rape, there must first be proof of penetration of the vagina and the penetration must be linked with the accused.” Per Bage, JSC.
In that case (State Vs Masiga, supra), My Lord Galinje, said:
“For prosecution to succeed in proving the offence of rape, it must prove:
1. That the accused has sexual intercourse with the woman.
2. That the act was done in circumstances falling under the following:
a. Against her will;
b. Against her consent
c. With her consent when her consent has been obtained by putting her in fear of death or of hurt
d. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he 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.
3. That there was penetration. See Ogunbayo Vs State (2007) 8 NWLR (Pt 1035) 157; Upahar Vs State (2003) 6 NWLR (Pt 816) 230; State Vs Ojo (1980) 2 NCR 391; Iko Vs State (2001) 14 NWLR (Pt 732) 221.”
Stating further, My Lord Galinje said:
“The most essential ingredients of rape is penetration, however slight, penetration with or without emission, is sufficient, even where the hymen is not ruptured. The slightest penetration will be sufficient to constitute the act of sexual intercourse. See Iko Vs State (supra), Ogunbayo Vs State (supra).” PER MBABA, J.C.A.
WHETHER OR NOT A TEN YEAR OLD GIRL CAN GIVE CONSENT TO ENGAGE IN SEXUAL ACTIVITIES
In this case, at hand, the victim is a 10 year old girl, an unfortunate child on the street, hawking food, to earn a living (or sent out to hawk) at such tender age. By law, she cannot even give consent to engage in sexual activities, being under the age of 14 and so was incapable of consenting to any act of sexual intercourse, with anyone. See Section 282 of the Penal Code.
In the case of Natsaha Vs State (2017) LPELR – 42359 (SC), the Supreme Court held:
“It is important to note that under the Penal Code, a child who is under the age of 14 years is incapable of giving consent. See Section 37(c) and 282 (1) (e) of the Code. See also Shuaibu Isa Vs Kano State (2016) LPELR-40011 SC.
Therefore, once it is proved that the accused person had sexual intercourse or unlawful carnal knowledge of a girl under the age of 14 years, he is guilty of rape.” Per Kereke-Ekun, JSC. PER MBABA, J.C.A.
WHETHER OR NOT A PARTY WHO DID NOT OBJECT TO THE TENDERING OF A CONFESSIONAL STATEMENT WHEN PUT IN EVIDENCE CAN PROTEST AGAINST THE STATEMENT
A party who did not object to the tendering of a confessional statement, when it was put in evidence, cannot protest against the statement, on appeal, or seek to deny making the statement, voluntarily. A confessional statement can only be challenged, when it is tendered (and at that time possibly call for trial-within-trial on its voluntaries), not on Appeal. See Sunday Vs FRN (2018) LPELR – 46357 (SC), where it was held:
“…The appellant, as an accused thereat, admitted committing the offence he was charged with in tandem with his voluntary confessional statement (Exhibit A). The challenges or attacks on the confessional statement arose only at the Court below. It is therefore not an issue or case of “retracted confession” since the appellant had never testified in the case. All the challenges posed by the learned counsel for the appellant did not relate to want of voluntariness of this confession due to either duress, promise, torture or inducement applied by the investigator(s) of the case or the non-calling of either any interpreter or the recorder of such statement which would have obviously rendered the statement inadmissible. It is trite law, that where a person makes a free and voluntary confessional statement which is direct and positive and is properly proved, a trial Court can comfortably convict him even on such confessional statement alone, without necessarily looking for any corroborative evidence. See Kim v State (1992)4 NWLR (pt.233)17; Queen v Itule (1961)2 SC NLR 183; Ejinima vs State (1991)6 NWLR (pt.200) 627; Smart v State (2016) EJSC Vol.36)145; Egboghonome V The State (1993)7 NWLR (pt.306) 383; Oseni Vs The State (2012) 5 NWLR (pt.1293) 351. It is in fact a well-settled law that a Court can convict an accused person based on his confession alone in as much as it is satisfied with the truth of such confession. See Yahaya V The State (1986)12 SC 282; Stephen vs The State (1986)5 NWLR (pt.46)978. In other words, once a Court is fully convinced of the truth of a confession, such confession or extra-judicial statement alone can ground a conviction. See also Edhigere v State (1996) 8 NWLR (pt.464); Aremu v State (1991)7 NWLR (pt.201)1. It is apt to state here that in the case at hand, the trial Court did not only rely on the voluntary confessional statement of the appellant (Exhibit A), but also it relied on the unequivocal and clear admission by him of the commission of the offence he was charged with when he unhesitatingly and clearly admitted his guilt at the Court in the presence of counsel of his choice when the charge was duly and properly read and explained to him.”
See also the case of Ichita & Anor Vs Ichita (2017) LPELR – 42074 (CA), where this Court held:
“Can Appellants, therefore, raise appeal against the admission of those documents, which they never challenged their admissibility at the Court below? I think not. See the case of John & Anor Vs The State (2011) LPELR – 8152 (SC): “The contention that Exhibit 3 was inadmissible because it was not tendered by the maker is in the circumstance of no moment. Besides, when the said Exhibit 3 was about to be tendered, there was no objection by the learned Counsel for the defence… Having not objected to the admissibility of the confessional statement (Exhibit 3), this omissions translates to the fact that the 1st Appellant was comfortable with the admission and saw no reason to challenge its admissibility. In a situation like this, the Court is at liberty to ascribe probative value to the document as succinctly put in the case of Alade Vs Olukade (1976) 2 SC 183…” PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of Jigawa State High Court in Charge No. JDU/52C/A/2019, delivered on 10th December, 2020 by Hon. Justice Musa Ubale wherein Appellant was convicted for rape, under Section 3 of the Penal Code (Miscellaneous Amendment) Law, 2014 of Jigawa State and sentenced to twenty-one years imprisonment.
At the lower Court, Appellant was accused as follows:-
“That you Dauda Malam Mato ‘M’ aged 35 years of Tsangayar Yamma, Kangire Birnin Kudu Local Government on or about the 24th day of October, 2017, at Tsangayar Yamma Quarters, Birnin Kudu Local Government Area within Jigawa Judicial Division, called one Fa’iza Idris, aged about 10 years old to your friend’s room and had sexual intercourse with one Faiza Idris ‘f’ aged 10 years (sic) and you hereby (sic) committed the offence of rape punishable under Section 3 of the Penal Code (Miscellaneous Amendment) Law of Jigawa State of Nigeria, 2014.”
Appellant was arraigned on 21/7/2020 when the charge was read and interpreted to him in Hausa Language and he said he understood the same and pleaded, Not Guilty. After hearing the case and considering the evidence and addresses of Counsel, the trial Court held the appellant guilty of the offence and said:
“In Ezigbo Vs State (2012) LPELR – 7855 at Pp. 8-9, the Supreme Court held that “It is settled in law that for the prosecution to sustain a conviction against the appellant under Section 283 of the Penal Code Law and the following ingredient of the offence must be established by evidence. A man is said to commit rape when he had sexual intercourse with a woman in any of the following circumstances…..
(e) with or without her consent when she is under fourteen years of age or of unsound mind” Per Onnoghen, JSC
The facts before this Court is the charge against the defendant for the rape of PW4, a ten year old girl and she testified that the defendant called her, bought her food, asked her to take the food to his room, as she entered he followed her, removed her wrapper and he removed his trouser and had sexual intercourse with her. In his defence, DW1 the defendant testified that the prosecutrix had brought food, in his house and he bought the food and gave her money and left. But when he came out and saw her with PW2 vigilante people when they asked him he denied admitting that the prosecutrix was from his house until they beat him that he admitted but said he only bought food from her.
Under cross-examination, the defendant testified that on the fateful night when the prosecutrix entered his house, his wife was not at home. The evidence adduced by PW4 was never shaken nor contradicted, in fact, the defendant had corroborated her entry into his house only that he denied having sexual intercourse with her. It is however to be noted that in a case of rape, the person ravished is a competent witness and her evidence is always vital in dealing with the most important element in the case. See Ekpo & Anor Vs. State (1976) LPELR – 1095, SC, therefore, the prosecutrix testified that the defendant had sexual intercourse with her and the Doctor who testified as PW3 stated that the hymen of PW4 was found not intact. This clearly established that the defendant had sexual intercourse with the prosecutrix.
It is important to note that under the Penal Code Law, a child who is under the age of 14 years is incapable of giving consent. Therefore, it is my respectful view that the evidence led by the prosecution are not contradicted and therefore are acceptable by me.
Furthermore, the defendant had made extra judicial statement to the police were (sic) in he stated voluntarily that he had sexual intercourse with the prosecutrix… The defendant had never resiled from making the statement in his testimony in open Court. It is therefore my view that the confession made by the defendant, which was admitted in evidence and marked Exhibit A1 and A2, proved to have been made voluntarily…” (see pages 45-46 of the Records of Appeal)
Dissatisfied with the above findings and decision of the lower Court, Appellant brought this appeal, as per the Amended Notice of Appeal, filed on 18/6/2021 and deemed duly filed on 7/10/2021, disclosing 4 grounds of Appeal. Appellant filed his Brief of Arguments on 18/6/2021, which was also deemed duly filed on 7/10/2021. Appellant distilled a lone issue for the determination of the Appeal as follows:
“Whether upon a solemn consideration of the entire evidence on record and the absence of corroborative evidence, the prosecution successfully established the presence of the element of penetration and linked same to the Appellant, to warrant a conviction for Rape?”
The Respondent filed its brief on 2/9/2021 which was also deemed duly filed on 7/10/2021. The Respondent also raised a lone issue, namely:
“Whether the Respondent had proved the offence of rape against the Appellant beyond reasonable doubt?”
The Respondent also filed a Cross-Appeal (which shall be treated, separately, later).
Arguing the appeal on 24/11/2021, Appellant’s Counsel, Olukayode Ariwoola Jnr., Esq., said the justice of this case requires the ingredients of rape to be established, that where it is not done, our emotions and human nature notwithstanding, the Appellant being a man in his prime should be allowed to go home. He relied on the case of Josiah Vs. State (1985) LPELR-1633 SC, and said that, before Appellant can be found guilty, he must be properly tried, and the ingredients of the offence proved by credible and cogent evidence, he said that sympathy and sentiments have no place in the administration of justice – relying on Poatson Graphic Arts Trade Ltd & Anor Vs. NDIC (2017) LPELR-42567 CA:
“The justice administration in a Court is not abstract justice conceived by the judge. It is according to law. The law is trite, that sympathy and sentiments have no place in the administration of justice. A Court of law does not base its decision on sympathy or sentiments.”
Counsel relied on the case of State Vs. Masiga (2017) LPELR-43474 (SC) to say that, among other ingredients to be established in a rape case, penetration must be proved – Shuaibi Musa Vs. The State (supra) and Jegede Vs. The State (2001) 4 NWLR (Pt 733) to the effect that:
“Whether the prosecutrix is a minor or an adult, to secure a conviction for rape, there must first be proof of penetration of the vagina and the penetration must be linked with the accused.”
He also relied onIsa Vs. State (2016) LPELR-40011 (SC); Ezigbo Vs. State (2012) LPELR-7855 (SC) and Idi Vs State (2017) LPELR-42587 (SC).
Counsel argued that penetration was not established by the prosecution. He also argued that since the victim (PW4) was only a minor of 10 years of age, her evidence required corroboration to succeed. He argued that there was no corroboration of the evidence by PW4. Counsel tried to analyze the evidence of PW1, PW2, PW3 and Pw4 and said that the story of rape was what PW4 presented, that even PW2, who saw when PW4 ran out of the house, did not give evidence of the condition of the PW4 at that stage – whether her clothe was torn or there was blood stain; any evidence of struggle; or that PW4 was crying; he said there was sperm stain on her cloth etc. – to induce the inference of rape. He relied on the case of Okoyomon Vs State (1973) NSCC Vol. 8 page 9 at 13.
Counsel said the evidence of PW3 showed that he (Doctor) saw the prosecutrix (PW4) a day after the molestation; that his (PW3) evidence, repeatedly used the word ‘molest’ instead of rape or sexual intercourse, Counsel said that to ‘molest’ means to disturb or annoy by malevolent interference or to accost or attack, especially with the intention of assaulting sexually.” He relied on Collins Dictionary. He also relied on New Webster Comprehensive Dictionary and Black’s Law Dictionary for the meanings of ‘molest’ to means “To annoy or harm by interference, disturb incuriously” and “The persecution or harassment of someone as in the molestation of a witness; the act of making unwanted and indecent advances to someone, especially for sexual gratification” respectively.
Counsel said the PW3 (Medical Doctor) was therefore not talking about rape, that his evidence did not connote the presence of intention to rape. He urged us to so hold and added that even if the evidence of PW3 could suggest a rape, it did not establish penetration and link it to the Appellant. He relied on the case of Ochiba Vs State (2011) LPELR-8245 (SC) to say that the failure of the prosecution to provide the result of the fluid, swapped from the prosecutrix’s vagina, goes to show that Appellant was not linked to the offence and was innocent. He submitted that the evidence of Pw1, PW2 and Pw3 failed to establish the offence of rape, and that none of them corroborated the evidence of the PW4 (the victim). He relied on Ahmed Vs Nigerian Army (2016) LPELR-40826 (SC), where it was held:
“It is long settled that in sexual offences that corroboration of the prosecutrix is desirable. That is to say the evidence of the prosecution should be strengthened by other evidence implicating the accused person…”
He also relied on Iko Vs State (2001) 14 NWLR (pt 732) 221 to say that:
“Evidence in corroboration must be independent testimony, direct or circumstantial, which confirms in some material particular, not only that the accused has committed it.”
Counsel said the medical report Exhibit FMC1 and the confessional statement Exhibit A1 and A2 lacked probative value and that the trial judge wrongly placed premium on them as corroborating the evidence of PW4. He urged us to resolve the issue for Appellant, set aside the judgment, and discharge and acquit the Appellant.
Responding, Counsel for Respondent, the learned Attorney-General of Jigawa State, Dr. Musa Aliyu, stated the three main ways of establishing commission of offence, namely:
1) By confessional statement of the accused;
2) By circumstantial evidence; and
3) By evidence of an eye witness.
He relied on the cases of Okanlawon Vs State (2015) 17 NWLR (pt 1489) 445; Alufohai Vs State (2015) 3 NWLR (Pt 1445) 172 and Dele Vs State (2011) 1 NWLR (Pt 1229) 508.
He submitted that in establishing the commission of offence beyond reasonable doubt, the law does not require proof beyond any iota of doubt Eke Vs State (2011) ALL FWLR (Pt 566) 430; Abeke Vs State (2007) ALL FWLR (Pt 366) 644 and Paul Vs State (2015) ALL AWLR (Pt 778) 839. Counsel gave the meaning of rape as “forceful sexual intercourse with a girl or a woman without her consent or when by law she is incapable of giving consent.” (Posu & Anor Vs The State (2011) LPELR-1969 (SC).
Counsel stated the essential ingredients of offence of rape, under Section 282 of the Penal Code, as follows:
a. That the accused had sexual intercourse with the prosecutrix (victim);
b. The sexual intercourse was done without her consent, or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation, or when the victim is under the age of 14 years;
c. That the prosecutrix is not his wife;
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, and
e. That there was penetration.
He relied on the case of Lucky Vs The State (2016) LPELR-40541 SC; Iko Vs State (2001) 14 NWLR (Pt 332) 195.
In the instant case, Counsel said, the prosecution had established confession by the Appellant as well as evidence of the victim, corroborated, to establish the offence. He referred us to the evidence of PW1, PW2, PW3 and PW4 (victim). He added that the extra-judicial statement of the appellant (Exhibit A2) had confirmed the act of sexual intercourse by Appellant with the prosecutrix – a 10-year-old child; that it is trite law, that a confessional statement, which is clear and positive, as in the instant case, is enough to sustain conviction. He relied on the case of Imoh Vs State (2016) LPELR – 47989 SC.
Counsel asserted that the extra-judicial statement was properly before the Court and properly admitted, that the contents thereof were corroborated by the other pieces of evidence of PW2 and PW4. He urged us to resolve the issue against Appellant and dismiss the appeal.
RESOLUTION OF THE ISSUE
I think the issue distilled by the Appellant for the determination of this appeal is apt, but I shall modify it to read thus:
Whether, upon careful consideration of the evidence on record, including the extra-judicial statement of the Appellant, the prosecution had established the offence of rape of the 10-year-old girl against the Appellant, as held by trial Court?
Counsel on both sides had stated what constitutes the ingredients of offence of rape and cited several authorities to support their submissions, particularly, the element of proof of penetration of the victim’s vagina by the assailant. See the case of State Vs Masiga (2017) LPELR-43474 SC where it was held:
“I have stated earlier that there is no doubt that in charge of rape, penetration must be proved…… On what prosecution must prove in charge of rape, this Court in Jegede Vs The State (2001) 14 NWLR (sic) (Pt 733) held that:
“whether the prosecutrix is a minor or an adult, to secure a conviction for rape, there must first be proof of penetration of the vagina and the penetration must be linked with the accused.” Per Bage, JSC.
In that case (State Vs Masiga, supra), My Lord Galinje, said:
“For prosecution to succeed in proving the offence of rape, it must prove:
1. That the accused has sexual intercourse with the woman.
2. That the act was done in circumstances falling under the following:
a. Against her will;
b. Against her consent
c. With her consent when her consent has been obtained by putting her in fear of death or of hurt
d. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he 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.
3. That there was penetration. See Ogunbayo Vs State (2007) 8 NWLR (Pt 1035) 157; Upahar Vs State (2003) 6 NWLR (Pt 816) 230; State Vs Ojo (1980) 2 NCR 391; Iko Vs State (2001) 14 NWLR (Pt 732) 221.”
Stating further, My Lord Galinje said:
“The most essential ingredients of rape is penetration, however slight, penetration with or without emission, is sufficient, even where the hymen is not ruptured. The slightest penetration will be sufficient to constitute the act of sexual intercourse. See Iko Vs State (supra), Ogunbayo Vs State (supra).”
In this case, at hand, the victim is a 10 year old girl, an unfortunate child on the street, hawking food, to earn a living (or sent out to hawk) at such tender age. By law, she cannot even give consent to engage in sexual activities, being under the age of 14 and so was incapable of consenting to any act of sexual intercourse, with anyone. See Section 282 of the Penal Code.
In the case ofNatsaha Vs State (2017) LPELR – 42359 (SC), the Supreme Court held:
“It is important to note that under the Penal Code, a child who is under the age of 14 years is incapable of giving consent. See Section 37(c) and 282 (1) (e) of the Code. See also Shuaibu Isa Vs Kano State (2016) LPELR-40011 SC.
Therefore, once it is proved that the accused person had sexual intercourse or unlawful carnal knowledge of a girl under the age of 14 years, he is guilty of rape.” Per Kereke-Ekun, JSC.
Counsel for the Appellant has argued, strenuously, that the Prosecution did not establish penetration of the victim (PW4) by the Appellant, that the evidence of the victim (PW4) who recounted how she was ravaged (raped) by Appellant needed corroboration, that there was no such corroboration and that the Medical Report (Exhibit FMC1) and the evidence of PW3 (Doctor) which the Court relied on to corroborate the evidence of PW4, lacked probative value.
Of course, the evidence of the 10 year old victim was clear and cogent. She said:
“…I was hawking selling foodstuff when the defendant called me and offered to buy and he bought and directed me to take it to his room and I took it to his room, as I entered the room he followed me and he undress my rapper (sic) and he also removed his trouser (sic) and he had sex with me and gave me my money for the foodstuff and asked me to leave. As I was coming out from the room, the vigilante people hold me and asked me what happened and I told them what happened between me and the Defendant. So the vigilante people arrested the defendant. From there we were taken to Police Station at Birnin Kudu and the following day was taken to the hospital. I was examined at hospital…” (See 10 of the Records of Appeal).
Though the narration by the PW4, did not suggest any overt force on her to extract the sexual act or struggle by her to resist it (it appeared to be familiar to her), the fact that the PW4 was only ten years old, brings her under the Protection of Law, that a child (girl) under 14 years of age, is incapable of consenting for sexual intercourse, and whoever takes undue advantage of her, or lures her into such act, violates her and rapes her. See Natsaha Vs The State (2017) LPELR – 42359 (SC); and Ezigbo Vs State (2012) LPELR – 7855:
“A man is said to commit rape, when he had sexual intercourse with a woman… with or without her consent, when she is under fourteen years of age or of unsound mind.” Per Onnoghen JSC (later CJN).
Of course, the story of the PW4 was corroborated by PW2 and PW3 (Medical Report) and above all by the Appellant, himself, who admitted the act before the Vigilante (PW2), and also made a confessional statement to the Police on the offence – See Exhibits A1 and A2.
PW2 had said:
“… We saw a girl called Faiza running out from the defendant house, we stopped her and asked her she said it was the accused that called her and had sexual intercourse with her, we were with the girl, when the defendant came out from his house and met us, with the girl standing before us. So we asked the defendant what happened between him and the girl. He pleaded to us to forgive him… he said he had sexual intercourse with the girl, we told him we will not forgive him. (Page 5 of the Records of Appeal)
The PW3, the Medical Doctor who examined the victim (PW4), a day after the sexual intercourse, said:
“… I happened to be a medical officer, O & G Section when a child of about 10 years named Faiza Idris, was brought before me, that she was molested a day before she was brought. When we received her, she said that, for the past one year, one Nura was molesting her, repeatedly. That each time she went to sale (sic) her food stuffs, he will give her N50 and molest her. And she also said few days later a friend to Nura, one Rabiu, also molested her and gave her money. And she said, a day before she was brought to the hospital, another beggar a friend to Nura and Rabiu, also molested her. And she said the beggar was caught that day and they were taken to the Police Station. So they now brought her to us for investigation… We examined her, every other examination was normal, when we looked at the virgina (sic) there is some fluid and the hymen was not normal. So we directed for RVX and HIV test and pregnancy test and Viral Hepatitis test. So the hepatitis becomes positive. And the other tests were negative, so we swap the fluid from the vagina for examination, but the swap was not returned back to us to see the result. Later the Police came and requested for our report of investigation which we wrote and gave – Exhibit FMC1. See pages 8 and 9 of the Records of Appeal.
The Medical Report (Exhibit FMC1) is published on pages 20 and 21 of the Records of Appeal. It said (among other things):
“… There was no history of per vaginum bleeding, no history of vaginal discharge, no trauma to the vulva. Not known Diabetic, sickle cell anemia. Other systemic symptoms not contributory o/e not in any obvious distress, not pale, afebrile, anicteric, acyanosed, nill pedal oedema.
CVS: PR= 106b/m regular full volume
BP= 90/60
HS= 1,11
Chst – RR= 24cl, vesicular breath sound
Abd – No abnormalities detected
VE: Nivly Has become fluid around the virginal orifice, hymen breached
Investigation result showed:
RVS – Negative (Non-reactive)
HBAG – Negative
HCV – Positive
Pregnancy test – Negative
However, swab M/C/S Virginal Secretion – Not retrieved.
Please accord her the necessary assistance.
Sgnd
Obiako Prince Felix
For: Medical Director.”
Appellant’s Counsel had picked quarrel with the medical report, saying that the PW3 used the Word “molest” repeatedly, to describe what was done to the little girl, instead of the word rape. He indulged himself in the dictionary meaning of Molest, to explain away the rape accusation leveled against Appellant. I think that submission was an attempt to ridicule and belittle a rather serious situation, as the context of use of the word “molest” by the Medical Doctor, certainly denoted sexual abuse of the minor, by her assailant.
As earlier stated, Appellant had admitted before PW2 and in his confessional statement, Exhibits A1 and A2 (Hausa and English versions), that he had sexual intercourse with the 10 year old girl. The said statement was admitted in evidence, without any objection, as Appellant’s Counsel, at the trial Court (Mrs. Louisa) had said:
“We are not objecting. But we are praying for the Court to put more weight to the discrepancies in the statement.” (Page 4 of the Records of Appeal)
A party who did not object to the tendering of a confessional statement, when it was put in evidence, cannot protest against the statement, on appeal, or seek to deny making the statement, voluntarily. A confessional statement can only be challenged, when it is tendered (and at that time possibly call for trial-within-trial on its voluntaries), not on Appeal. See Sunday Vs FRN (2018) LPELR – 46357 (SC), where it was held:
“…The appellant, as an accused thereat, admitted committing the offence he was charged with in tandem with his voluntary confessional statement (Exhibit A). The challenges or attacks on the confessional statement arose only at the Court below. It is therefore not an issue or case of “retracted confession” since the appellant had never testified in the case. All the challenges posed by the learned counsel for the appellant did not relate to want of voluntariness of this confession due to either duress, promise, torture or inducement applied by the investigator(s) of the case or the non-calling of either any interpreter or the recorder of such statement which would have obviously rendered the statement inadmissible. It is trite law, that where a person makes a free and voluntary confessional statement which is direct and positive and is properly proved, a trial Court can comfortably convict him even on such confessional statement alone, without necessarily looking for any corroborative evidence. See Kim v State (1992)4 NWLR (pt.233)17; Queen v Itule (1961)2 SC NLR 183; Ejinima vs State (1991)6 NWLR (pt.200) 627; Smart v State (2016) EJSC Vol.36)145; Egboghonome V The State (1993)7 NWLR (pt.306) 383; Oseni Vs The State (2012) 5 NWLR (pt.1293) 351. It is in fact a well-settled law that a Court can convict an accused person based on his confession alone in as much as it is satisfied with the truth of such confession. See Yahaya V The State (1986)12 SC 282; Stephen vs The State (1986)5 NWLR (pt.46)978. In other words, once a Court is fully convinced of the truth of a confession, such confession or extra-judicial statement alone can ground a conviction. See also Edhigere v State (1996) 8 NWLR (pt.464); Aremu v State (1991)7 NWLR (pt.201)1. It is apt to state here that in the case at hand, the trial Court did not only rely on the voluntary confessional statement of the appellant (Exhibit A), but also it relied on the unequivocal and clear admission by him of the commission of the offence he was charged with when he unhesitatingly and clearly admitted his guilt at the Court in the presence of counsel of his choice when the charge was duly and properly read and explained to him.”
See also the case of Ichita & Anor Vs Ichita (2017) LPELR – 42074 (CA), where this Court held:
“Can Appellants, therefore, raise appeal against the admission of those documents, which they never challenged their admissibility at the Court below? I think not. See the case of John & Anor Vs The State (2011) LPELR – 8152 (SC): “The contention that Exhibit 3 was inadmissible because it was not tendered by the maker is in the circumstance of no moment. Besides, when the said Exhibit 3 was about to be tendered, there was no objection by the learned Counsel for the defence… Having not objected to the admissibility of the confessional statement (Exhibit 3), this omissions translates to the fact that the 1st Appellant was comfortable with the admission and saw no reason to challenge its admissibility. In a situation like this, the Court is at liberty to ascribe probative value to the document as succinctly put in the case of Alade Vs Olukade (1976) 2 SC 183…”
In the case of Ajibade Vs State (2012) LPELR – 15531 (SC), the Supreme Court held:
“Where a confessional statement is therefore admitted without any objection, the irresistible inference is that same was voluntarily and a Court can rightly convict on the basis of the admission contained therein.” Per Ogunbiyi JSC.
In his evidence in Court, Appellant admitted that Faiza (PW4) was in his house but said he bought her food and she left, but that when the vigilante accosted PW4, coming out of his house, he denied for fear of being beaten but he later admitted, upon being beaten!
Under cross-examination, he said:
“When I said we, I mean me and one Rabiu that were taken to Police Station up to Court. Rabiu was also facing the same allegation of rape. The said Rabiu was not my friend; he was my in-law, because I married in their house… I am aware that PW4 was the prosecutrix in this case. I know Nura at Kangire. Nura runs away from Kangire because of this allegation. On that fateful night, when Faiza entered my house, my wife was not at home… The offence was committed three years back it was Nura and Rabiu who were suspected to committing the offence.” See Pages 12 and 13 of the Records
In his confessional statement (Exhibit A1), Appellant said:
“… That he could remember… that he had carnal knowledge with Faiza Idris “F” in my room, when my wife went to nearby quarters, whereof he gave her the sum of Fifty Naira N50.00. It was one Rabiu Usman that brought her to my house. On Wednesday, being 24/10/2017 2030 hrs, I saw the victim in one shop where I used… she came. We left to my house. Inside my room I told her that I wanted to have sex with you and she agreed. I ordered her to pull off her cloth after all I had sex/raped her and I released sperms inside her vagina. When coming out of my house one Sagiru Yusuf “M”, a Vigilante group member, arrested us…” See Page 16 of the Records of Appeal.
The above statement was translated from Exhibit A2 (the Hausa Version) and though rendered in reported speech in some portions, it no doubt revealed what transpired at the recording of the statement.
But since Appellant did not object to the tendering of the statement and even gave evidence to support it, in Court, the trial Court was right, in my opinion, to rely on it, to corroborate the evidence of the Victim (PW4).
What is very sad about this case, is the obvious negative effect of sending out little children on the streets to hawk, or allowing them, especially the girl child, to hawk, who most often, are exposed to crimes, abuses and prostitution, at such a tender age! From the account of PW4, she appeared familiar with sexual intercourse, at such tender age, and was therefore vulnerable to be preyed upon by evil men, in the course of hawking! Because of her tender age, consensual sex was ruled out, even where she appeared to have yielded to the allurement of the Appellant.
I cannot therefore see any merit in this appeal and so resolve the issue against Appellant and dismiss the appeal.
CROSS-APPEAL
The Respondent had filed a Cross-Appeal in this matter, as per the Notice of Cross-Appeal, filed on 11/2/2021. See the Supplementary Records of Appeal, transmitted to this Court on 12/2/2021.
The Cross-Appellant filed brief of argument on 2/9/2021, which was deemed duly filed on 7/10/21. It distilled a lone issue for determination, as follows:
“Whether the learned trial Judge has discretion or power to alter a mandatory sentence, stated in the Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014 of Jigawa State, which came into force on the 29th December, 2014?
The Cross-Respondent filed his brief on 22/11/2021 and conceded to the Cross-Appeal (where this Court found no merit in the main Appeal).
In Paragraph 3.3 of the Cross-Respondent’s brief, the Counsel said:
“… I submit that if your Lordships do not find merit in the main appeal, then the mandatory sentence has to be imposed and therewith allow this Cross-Appeal. However, if the main appeal is allowed, then your Lordships are urged, with the greatest respect, to summarily dismiss this Cross-Appeal…” See Pages 3 – 4 of the Cross-Respondent’s Brief.
I commend the learned Counsel for Cross-Respondent, for that mature spirit of demonstration of the knowledge of law, therefore not being unnecessarily combative over a straight forward prescription of the law.
By the provision of Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014, Section 283 of the Penal Code Law was deleted, and replaced with the following provision:
“Notwithstanding the provision of any other law to the contrary, but subject to Section 285B, whoever commits rape shall be punished for life or for a term of not less than ten years and, where the rape committed falls under paragraph (e) of Section 282(1), shall be punished with imprisonment for life.”
Of course, Section 282(1), (e) of the Penal Code is to the effect that:
“A man is said to commit rape when, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstances… (e) with or without her consent, when she is under fourteen years of age or of unsound mind.”
Counsel had submitted that, Appellant having been convicted for raping the 10 year old girl, the trial Court had no discretion to exercise in the matter and should have imposed the life jail prescribed by the law on the Appellant. He relied on the case of Muazu Vs State (supra) and Lawrence Vs FRN (2018) LPELR – 44510 CA.
I see merit in this Cross-Appeal, even as the Cross-Respondent’s Counsel, conceded. The trial Court had no room to exercise any discretion in the circumstance, other than impose the mandatory sentence, stated by the law – Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014, which gives life imprisonment for one who rapes or has carnal knowledge of a girl below 14 years of age or of unsound mind. See the case of Lucky Vs State (2016) LPELR – 40541 (SC), where it was held:
“Once the Court convicts an accused person for offence of rape, as defined in Section 357 of the Code, it has no discretion but is bound to obey the law by imposing a term of imprisonment for life.”
I therefore allow the Cross-Appeal and set aside the sentence of 21 years imprisonment, imposed by the trial Court on Appellant, and in its place, impose the mandatory provision of the Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014, that is, life imprisonment. Appellant shall therefore serve life imprisonment for raping the 10 year old girl – PW4.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Ita Mbaba, JCA and I am in complete agreement with the reasoning and conclusions reached.
The Respondent/Cross-Appellant’s Cross-Appeal challenged the sentence of the term of imprisonment awarded by the trial Court on the ground that by the Provision of Penal Code (Miscellaneous Amendment) Law No. 9 of 2014 of Jigawa State, Section 283 of the Penal Code was amended and replaced with the following:
“Notwithstanding the provisions of any other law to the contrary, but subject to Section 285 B, whoever commits rape shall be punished for life or for a term of not less than ten years and where the rape committed falls under paragraph (e) of Section 285(1), shall be punished with imprisonment for life.”
It can be seen that the above provision created two different types of sentences of a term of not less than 10 years and also life imprisonment. However, where the offence committed falls under paragraph (e) of Section 282 or on the other hand where the prosecutrix is under 14 years at the time of the commission of the offence, then the convict shall be punished for life imprisonment. There are the two limbs regarding the sentence of a convict for the offence of rape. The first limb may admit an exercise of discretion by a Court, whereas if the prosecutrix is under the age of 14 years, the second limb becomes activated and the mandatory penalty is life imprisonment. This is so because of the terminology used in the above provision. Though, there are instances, when, depending on the terminology used in prescribing the punishment for an offence, a trial Court possesses some discretion in determining the sentence to impose on a convicted person, and this is especially so where a statute provides a maximum sentence, as opposed to a mandatory one for an offence. See Nigerian Army Vs Iyela (2008) 18 NWLR (Pt 1118) 115; Tanko Vs State (2009) 4 NWLR (Pt 1131) 430 and Amoshima Vs State (2011) 4 NWLR (Pt 1268) 530. The penalty imposed by the section where the offence is committed against a girl below the age of 14 years is life imprisonment and from the wordings of the provision, it is a mandatory sentence as opposed to the maximum sentence for conviction on a rape of a woman.
In view of the fact that the penalty for rape of a minor under 14 years is life imprisonment, the Court has no option than to impose the penalty once a conviction for rape is had. The reason of my discourse here, is that I noticed the attitudes and reluctance of Courts in the state to impose the mandatory penalty after conviction. It cannot be an oversight but deliberate act with due respect and that is not helping the course of justice. The Court cannot by their act be amending the provision of Section 283 of the Penal code (as amended) by imposing a penalty different from the penalty imposed by the section. This type of attitude has been deprecated by the Supreme Court in Lucky Vs State (2016) LPELR-40541 AT 39 where Ngwuta, JSC (of blessed memory) held thus:
“The sentence imposed by the trial Court is not only a contradiction in terms of the Court’s stated intention to reduce jurisdiction of the offences of rape and defilement, but a contemptuous and contumacious departure or derogation from, as well as a violation of the provisions of Section 358 of the Criminal Code (supra) under which the appellant was convicted… Once the Court convicts an accused person for the offence of rape as defined in Section 357 of the Code, it has no discretion but is bound to obey the law by imposing a term of imprisonment for life.”
See Bashir Vs Kano State (2016) LPELR-41561; Muazu Vs State (2018) LPELR-46768 and State Vs Ali (2020) LPELR-50039. It is therefore mandatory for the trial Court to pass the sentence in accordance with the law under which it convicted the accused person.
It is for the above and fuller reasons advanced in the lead judgment of my learned brother, I too dismiss the appeal and allow the Cross-Appeal. I also abide by all of the consequential orders as contained in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, Ita G. Mbaba, JCA in this appeal. I am in total agreement with my learned brother that the appeal is unmeritorious. The appeal is also allowed by me.
I abide by the consequential orders therein.
Appearances:
OLUKAYODE ARIWOOLA JNR For Appellant(s)
DR. MUSA ADAMU ALIYU, HON. A.G. JIGAWA STATE For Respondent(s)
