MOHAMMED ALI v. THE STATE
(2018)LCN/11982(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of July, 2018
CA/J/337C/2017
RATIO
EVIDENCE: CORROBORATING EVIDENCE
“Corroborating evidence is defined by the learned authors of Black’s Law Dictionary 5th Ed. as evidence supplementary to that already given and tending to strengthen or confirm it; additional evidence of a different character to the same point. This definition was adopted by the Supreme Court in Stephen Vs State (2013) 8 NWLR (Pt. 1355) 153 (2013) 8 NWLR (Pt. 1355) 153. In Omisade Vs The Queen (1964) NSCC 170 corroborative evidence was defined as evidence given by an independent witness which showed or tended to show that it was true that the accused committed the crime, not merely that the crime was committed but that it was committed by the accused. InState Vs Gwangwan (2015) 13 NWLR (Pt. 1477) 600, the Supreme Court stated that corroboration means or entails the acts supporting or strengthening the statement of a witness by fresh evidence of another witness and it does not mean that the witness corroborating must use the exact or very like words and this is because evidence that is regarded as corroboration is clearly not a repetition of the evidence sought to be corroborated, otherwise there will be no need for the original evidence.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
EVIDENCE: WHERE EVIDENCE IS MADE BY WITNESS
“It is elementary that evidence of a statement made to a witness by a person who is not himself call as a witness is hearsay and is inadmissible when the object of the evidence is to establish the truth of what is contained in the statement – Arogundade Vs The State (2009) 6 NWLR (Pt 1136) 165, Jubril Vs Federal Republic of Nigeria (2018) LPELR 43993(CA). The evidence led by the fourth prosecution witness that she sent the victim to the shop of the accused defendant to buy beans and that the victim stayed for a long time and came back without the money or the beans and that when she sent the victim to go back to buy the beans, the victim refused to go and was crying, are statements that the witness perceived herself and is not hearsay evidence. The statement of the witness of what the victim told her as the reason for her not wanting to go back to the shop of the accused defendant cannot also be termed as hearsay evidence because the victim, who told her, testified as a witness and her evidence confirmed the statement of the fourth prosecution witness. The evidence of the fourth prosecution witness corroborated the evidence of the victim in material particulars and the lower Court was correct to have treated it as such.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
MOHAMMED ALI Appellant(s)
AND
THE STATE Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Gombe State delivered by Honorable Justice J. A. Awak in Charge No GM/26C/2013 on the 30th of June, 2015. The Appellant was arraigned before the lower Court for the offence of rape contrary to the provision of Section 282 of the Penal Code and punishable under Section 283 of the Penal Code. The Appellant was alleged to have, on or about the 12th of March, 2012 at Jauro Abare Quarters of Gombe State, had unlawful carnal knowledge of one Hadiza Shaibu who was five years old at the time of the commission of the offence.
The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial and in the course of which the Respondent called six witnesses and tendered three exhibits as Exhibits A, B and C in proof of its case and the Appellant testified and called two other witnesses in proof of his defence. At the conclusion of trial, Counsel to the parties filed and adopted the arguments in their written addresses. The lower Court found the Appellant guilty of the charge and sentenced him to ten years imprisonment without an option of fine. The Appellant was aggrieved by the decision and he caused his Counsel to file a notice of appeal dated the 2nd of July, 2015 and containing five grounds of appeal against it.
The records of appeal was compiled and transmitted to this Court on the 3rd of October, 2017 and it was deemed properly compiled and transmitted by the Court on the 12th of October, 2017. In arguing the appeal before this Court, Counsel to the Appellant filed an original brief of arguments dated the 12th of October, 2017 on the 23rd of October, 2017. Counsel to the Respondent filed a brief of arguments dated the 28th of November, 2017 on the 29th of November, 2017 in response. Counsel to the Appellant filed a reply brief of arguments dated the 9th of February, 2018 on the 13th of February, 2018 and the reply brief of arguments was deemed properly filed by this Court on the 15th of February, 2018. Counsel to the Appellant subsequently applied to amend his brief of arguments and he filed an amended brief of arguments dated the 19th of February, 2018 on the 22nd of February, 2018 and the amended brief of arguments was deemed properly filed by this Court on the 26th of February, 2018. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments.
Counsel to the Appellant distilled two issues for determination in the appeal and these were:
i. Whether the lower Court was not wrong in law when it held that the testimony of PW5 was corroborated by Exhibit C?
ii. Whether having regard to the totality of the evidence adduced by the prosecution, a case of rape was established against the Appellant by the Respondent.
In arguing the first issue for determination, Counsel referred to the provision of Section 209 (3) of the Evidence Act which provides that unsworn evidence of a child and given on behalf of the prosecution must be corroborated by some other material evidence implicating a defendant. Counsel stated that it is the duty of a trial Court to ascertain that whatever evidence is being used or regarded as corroboration is independent of the evidence to be corroborated and is such as supports the story of the main evidence to the effect that it renders that story more probable and that it implicates the accused person in some material particular and he referred to the case of Okabichi Vs State (1975) 3 SC (Reprint) 96. Counsel stated that the evidence of PW5, the victim, who was eight years old at the time of giving evidence and five years old at the time of the commission of the alleged crime, was to the effect that the Appellant inserted something in her private part which she did not know and that it was done outside the Appellant’s shop. Counsel stated that the evidence defied logic because PW5 did not cry at the time the thing was inserted into her private part and there was no eye witness to the act and that when she returned home she did not complain to her mother, PW3, until she was sent to the Appellant’s shop again to buy something.
Counsel stated that the case of the Respondent was not assisted by Exhibit C, the medical report of the examination conducted on the victim, because the medical report was not tendered by the maker, a Medical Doctor who was at the time doing his NYSC programme, but an Administrator and that as such Counsel to the Appellant had no opportunity of cross-examining the maker of the document.
Counsel stated that a careful examination of Exhibit C shows that it did not link the Appellant with the offence of rape and it cannot thus serve as independent evidence to corroborate the unsworn testimony of PW5. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.
On the second issue for determination, Counsel reiterated the established legal principles on burden of proving the guilty of an accused and the meaning of proof beyond reasonable doubt and listed the ingredients of the offence of rape as contained in Section 282 of the Penal Code. Counsel thereafter reproduced a summary of the evidence of the first to the fifth prosecution witnesses and those of the three defence witnesses and stated that the lower Court failed to properly evaluate the evidence led by the witnesses to see if the Respondent proved the offence of rape against the Appellant beyond reasonable doubt and he placed reliance on the case of Usman Vs The State (2014) SCM 202 in inviting the Court to examine the evidence led at trial and the basis upon which the lower Court reached its findings.
Counsel stated that the evidence led by the prosecution witnesses contained many gaps which ought to have raised doubt in the mind of the lower Court and which doubt ought to have been resolved in favour of the Appellant and he referred to the case of Babangida Iro Vs The State (2008) 3 NCC 1. Counsel restated his arguments on the first issue for determination that the evidence of PW5 defied logic and that the medical report, Exhibit C, did not connect the Appellant to the crime. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.
Counsel concluded his arguments by praying the Court to find that the Respondent woefully failed to prove the case against the Appellant and to allow the appeal, set aside the conviction and to discharge and acquit the Appellant.
Counsel to the Respondent also distilled two issues for determination in the appeal and these were:
i. Whether the trial Court was right when it held that Exhibit C corroborated the testimony of PW5.
ii. Whether the trial Court was right in aw in holding that the prosecution had proved the one count charge beyond reasonable doubt against the Appellant based on the evidence before the trial Court.
In arguing the first issue for determination, Counsel reproduced the testimony of the fifth prosecution witness, the victim, to the effect that the Appellant inserted something attached to the lower part of his body into her private part and of the contents of the medical report of examination of the witness, Exhibit C, which confirmed that there was a torn hymen and some whitish vaginal discharge at the vaginal orifice and stated that Exhibit C clearly corroborated the testimony of fifth prosecution witness, and that the finding of the lower Court thereon was correct. Counsel stated that it is correct that the Appellant denied committing the offence in his extra judicial statement and that the corroborative evidence that the trial Court should look for in such circumstances are (i) medical evidence showing injury to the private part or to other parts of her body which may be occasioned by a struggle; or (ii) semen stains on her clothes or the clothes of the accused or at the place where the offence is alleged to have been committed and he referred to the case of Posu Vs The State (2012) 10 LRCNCC 60.
Counsel stated that Exhibit C is an independent material evidence which corroborated the evidence of the fifth Respondent and satisfied the requirements of Section 209 (3) of the Evidence Act.
Counsel stated that the task of evaluation is for the trial Court which had the opportunity of seeing, watching and observing the witnesses and that the lower Court made a specific finding on the fact that it believed the evidence of the fifth prosecution witness as a witness of truth and that as such the assertion of the Counsel to the Appellant that the testimony of the fifth prosecution witness defied logic is baseless. Counsel stated further that it is not a requirement of the law that the medical report of examination, Exhibit C, must be tendered through its maker in order for it to have probative value and that by the provisions of Section 39 (b) and 55 (1) of the Evidence Act and Section 294 of the Criminal Procedure Code, it was appropriately tendered through the sixth prosecution witness who worked as Head of Administration in the hospital where the medical examination was done and who confirmed knowing the Medical Doctor that signed it.
Counsel stated that it was opened to the Counsel to the Appellant by virtue of the provision of Section 1 (3) of the Evidence Act to have summoned the Medical Doctor for cross examination, but that the Counsel failed to utilize the opportunity and that Counsel cannot now be heard to complain about Exhibit C. Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.
In arguing the second issue for determination, Counsel conceded that it was the responsibility of the Respondent to prove every ingredient of the offence of rape against the Appellant beyond reasonable doubt and he thereafter reiterated the ingredients of the offence as contained in Section 282 of the Penal Code. Counsel stated that the Respondent was at liberty to prove the guilt of the Appellant by evidence of eye witness or by a confessional statement or by circumstantial evidence and he referred to the case of Oguno Vs State (2013) 15 NWLR (Pt. 1376) 1.
Counsel took each ingredient of the offence and detailed the evidence led by the prosecution to establish the ingredient beyond reasonable doubt and he noted particularly that the evidence of the fifth prosecution witness which clearly identified the Appellant as her assailant was not challenged, discredited or controverted under cross examination and stated that where a party fails to cross examine a witness on a point, he cannot turn round and ask the Court to disbelieve the evidence of the witness on the point and he referred to the case of Okosi Vs The State (1989) 1 CLRN 39. Counsel stated that the finding of the lower Court that the Respondent proved the offence of rape against the Appellant beyond reasonable doubt cannot be impugned. Counsel urged the Court to resolve the second issue for determination in favour of the Respondent.
Counsel concluded his submission by urging the Court not find any merit in the appeal and to dismiss same and affirmed the judgment of the lower Court convicting and sentencing the Appellant to a term of imprisonment.
Now, it is trite law that an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment answers the following questions positively: (i) did the prosecution prove the essential elements of the offence; (ii) was the case proved beyond reasonable doubt; and (iii) was the evaluation of the evidence of the prosecution and defence witnesses properly done – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360. In this wise, it is the view of this Court that there is only one issue for determination in this appeal and this is:
Whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offence of rape against the Appellant beyond reasonable doubt?
It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. By virtue of Section 135 (1) of the Evidence Act, where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal – Ike Vs State (2010) 5 NWLR (Pt 1186) 41, Gabriel Vs State (2010) 6 NWLR (Pt. 1190) 280, Garba Vs State (2011) 14 NWLR (Pt. 1266) 98, Obi Vs State (2013) 5 NWLR (Pt. 1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt. 1391) 298.
It must however be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because the law will fail to protect the community if it admits 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 the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt. Reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man or woman might entertain. It is not a fanciful doubt. It is not an imaginary doubt. It is a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves –
Uzoka Vs Federal Republic of Nigeria (2010) 2 NWLR (Pt. 1177) 118, Jua Vs State (2010) 4 NWLR (Pt. 1184) 217, Sabi Vs State (2011) 14 NWLR (Pt. 1268) 421, Njoku Vs State (2013) 2 NWLR (Pt. 1339) 548, Ali Vs State (2015) 10 NWLR (Pt. 1466) 1.
The Appellant was charged with the offence of rape contrary to the provisions of Section 282 of the Penal Code. The offence of rape is the unlawful carnal knowledge of a woman or girl, without her consent or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm or by means of false or fraudulent representation as to the nature of the act, or in the case of a married woman, by impersonating her husband. The elements necessary for the prosecution to prove to sustain a charge of rape are (i) that the accused had sexual intercourse with the prosecutrix or victim; (ii) that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation; (iii) that the victim was not the wife of the deceased; (iv) that the accused had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not; and (v) that there was penetration – Jegede Vs The State (2001) 14 NWLR (Pt. 733) 264 Ogunbayo Vs The State (2007) 1 NWLR (Pt. 1035) 157, Posu Vs The State (2011) 2 NWLR (Pt. 1234) 393, Adonike Vs State (2015) 7 NWLR (Pt 1458) 237.
Now, it is settled law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes – Emeka Vs State (2001) 14 NWLR (Pt. 734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt. 1066) 300, Ilodigwe Vs State (2012) 18 NWLR (Pt. 1331) 1, Umar Vs State (2014) 13 NWLR (Pt. 1425) 497. Reading through the records of appeal, it is obvious that the Respondent relied on the eye witness account of the victim of the rape as well as circumstantial evidence in proving their case against the Appellant and the judgment of the lower Court showed it was on these bases that it found the Appellant guilty.
The main complaint of the Appellant in this appeal is that the lower Court failed to properly evaluate the evidence led by the parties at the trial in ascertaining whether the Respondent proved the offence of rape against the Appellant beyond reasonable doubt and Counsel to the Appellant invited the Court to examine the evidence led at trial and the basis upon which the lower Court reached its findings. It is settled law that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (Pt. 1256) 574, Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt. 1266) 1.
It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Akinloye Vs Eyiyola (1968) NMLR 92 at 93, Obisanya Vs Nwoko (1974) 6 SC 69 at 80, Woluchem Vs Gudi (1981) 5 SC 291 at 326, Ajibulu Vs Ajayi (2014) 2 NWLR (Pt. 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt. 1392) 564.
Reading through the judgment of the lower Court in the instant case, it is clear that it carried out an evaluation of the evidence led by the parties and it stated its reasons for believing the prosecution witnesses and in disbelieving the defence witnesses and it found that the evidence of the victim of the crime was sufficiently corroborated by other independent evidence. The primary task of an appellate Court is such circumstances is simply to examine the findings made by a trial Court to ensure that it did not go outside the evidence led at the trial to search for more inculpatory or exculpatory evidence, and where this is the case, not to interfere with the findings – Dada Vs Bankole (2008) 5 NWLR (Pt. 1079) 26, Akaninwo Vs Nsirim (2008) 1 SC (Pt. III) 219.
The Appellant, in the instance case, desires this Court to interfere with the evaluation of evidence carried out by the lower Court and to reevaluate the evidence by the parties and come to a different conclusion from that of the lower Court. It is trite law that the power of interference and re-evaluation of evidence is not one that an appellate Court exercises just because an appellant has asked for. The privilege of having an appellate Court exercise the power must be earned by an appellant showing a compelling and cogent reason for its exercise.
In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties simply because an appellant made an allegation of improper evaluation of evidence and formulated it one of the issues for determination.
An appellate Court will only do so where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Njoku Vs Eme (1973) 5 SC 293 at 306, Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt. 1388) 332 at 397-398, Gundiri Vs Nyako (2014) 2 NWLR (Pt. 1391) 211, Busari Vs State (2015) 5 NWLR (Pt. 1452) 343 at 373. An appellant has a duty to show how the findings made the lower Court are perverse – Ude Vs State (2016) LPELR-40441(SC). In Amadi Vs Attorney General of Imo State (2017) LPELR- 42013(SC) the Supreme Court further made the point thus:
“Learned Counsel submits further that when a decision is perverse, the appellate Court can intervene in the interest of justice and set it aside. That undoubtedly is the law. … It is however not enough for a party to assert that the judgment of a law Court which enjoys the presumption of regularity by dint of Section 150 Evidence Act 1990 (now Section 168 Evidence Act 2011) is perverse. He must show how the decision is perverse. The basic rule is, he who asserts must prove.”
Counsel to the Appellant requested that this Court intervene with the evaluation of evidence carried out by the lower Court on two grounds – (i) that the evidence of the victim, a child of eight years old, was not corroborated by any independent cogent and material evidence as required by Section 209 of the Evidence Act; (ii) that the totality of the evidence led by the Respondent did not constitute cogent and credible evidence to prove the offence of rape against the Appellant beyond reasonable doubt.
It is obvious from the records of appeal that the victim of the alleged rape was five years old at the time of the commission of the offence and eight years old at the time of her testimony in Court. The record shows that she testified as the fifth prosecution witness and that she gave an unsworn testimony after the lower Court had ascertained that she understood the duty of telling the truth. She testified in part thus:
“… I know the accused person. He is Mohammed Ali. He resides near our neighbourhood. He is a shop keeper. My mother’s name is Saadatu and she used to send me to the accused person’s shop to buy things for her. My mother send me to Mohammed’s shop to buy beans in his shop and when I got there he told me that beans has finished and he inserted something into my private part. When I went I did not enter the shop when he said the beans had finished. The accused inserted something into my private part outside the shop. I did not know where he remove the thing he put into my private part. I cannot remember what the thing he put into my private part looks like. What the accused person put into my private part is attached to his body. The thing he inserted into my private part is out of his lower body. What the accused person inserted into my private part is painful.”
Under cross examination, the victim testified thus:
“The shop I am talking about is an open shop. At the time of the incident there were no people around the shop. I was sent to buy the beans in the morning. I do not know the thing the accused person inserted into my private part. What happened between me and accused person occurred outside the shop and not inside it.”
Section 209 (1) and (3) of the Evidence Act provides:
“1. In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.
3. A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection (1) of this Section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.”
It is clear that by the provision of Section 209 (3) of the Evidence Act, the testimony of the victim, the fifth prosecution witness, required corroboration before the lower Court could act on it to convict the Appellant. Corroborating evidence is defined by the learned authors of Black’s Law Dictionary 5th Ed. as evidence supplementary to that already given and tending to strengthen or confirm it; additional evidence of a different character to the same point. This definition was adopted by the Supreme Court in Stephen Vs State (2013) 8 NWLR (Pt. 1355) 153 (2013) 8 NWLR (Pt. 1355) 153.
In Omisade Vs The Queen (1964) NSCC 170 corroborative evidence was defined as evidence given by an independent witness which showed or tended to show that it was true that the accused committed the crime, not merely that the crime was committed but that it was committed by the accused. InState Vs Gwangwan (2015) 13 NWLR (Pt. 1477) 600, the Supreme Court stated that corroboration means or entails the acts supporting or strengthening the statement of a witness by fresh evidence of another witness and it does not mean that the witness corroborating must use the exact or very like words and this is because evidence that is regarded as corroboration is clearly not a repetition of the evidence sought to be corroborated, otherwise there will be no need for the original evidence.
The Supreme Court has also stated that the nature of the corroborative evidence does not need to be direct evidence that the accused person committed the offence and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission – Queen Vs Obiasa (1962) 2 SCNLR 402, Achabua Vs The State (1976) 12 SC 63, Durugo Vs State (1992) 7 NWLR (Pt. 255) 525, Ubierho Vs State (2005) 5 NWLR (Pt. 919) 644. Thus, it has been held by the Supreme Court that medical evidence of the nature of injury inflicted on a deceased in a murder trial can act as corroborative evidence of a confessional statement of an accused person – Gira Vs State (1996) 4 NWLR (Pt. 443) 375 and Igri Vs State (2012) 16 NWLR (Pt. 1327) 522.
In Posu Vs The State (2011) 2 NWLR (Pt. 1234) 393, the Supreme Court stated that in a case of rape, where an accused defendant denies committing the offence, as in the instant case, the evidence of corroboration that the Court must look for is, for example, (i) medical evidence showing injury to the private part or other parts of the body of the victim which may have been occasioned in a struggle; or (ii) semen stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed.
There was evidence that upon the victim informing her parents of the incident on the same day it occurred, the father of the victim, who testified as the third prosecution witness, reported the matter to the police and whereupon a police woman escorted the victim and her father to the Gombe Specialist Hospital for examination. The victim was examined by a medical doctor, a Dr. L. O. Akanbi, and a medical report of the examination was prepared. The medical report was tendered as Exhibit C and it read in part thus:
“… On examination, there was no sign of beating or physical abuse. The main finding was in the examination of genitals with mild oedema of the labia minora and torn hymen at 9 O’clock position. There was also some whitish vaginal discharge at the vaginal orifice. … An assessment of sexual assault was made …”
The medical report was tendered by the sixth prosecution witness who stated that as at 2012, when the victim was brought for medical examination, he was the Head of Administration and Finance and the acting head of clinical services at the Gombe Specialist Hospital and was in charge of clinic activities and services related to patients in the hospital. The witness confirmed that Dr. L. O. Akanbi was a staff of the hospital as a Youth Corp member, in 2012 and that he was familiar with his handwriting and signature and he identified the medical report as one prepared by Dr. L. O. Akanbi. The medical report was thereafter tendered and marked as Exhibit C. The lower Court relied on the medical report as corroborating evidence of the evidence of the victim. Counsel to the Appellant berated the lower Court for doing so on the ground that it was not tendered by the maker and that the Counsel to the Appellant thus had no opportunity of cross examining the maker and on the ground that it did not link the Appellant with the commission of the offence.
On the first ground of complaint, it is obvious that Counsel to the Appellant did not avert his mind to the provisions of Section 55 (1) of Evidence Act 2011 and of Section 294 of the Criminal Procedure Code which governed the proceedings in the lower Court. Section 55 (1) of the Evidence Act states that either party to the proceedings in any criminal case may produce a certificate signed by a Government pathologist or by any pathologist specified by the Director of Medical Laboratories of the State and the production of any such certificate may be taken as sufficient evidence of the facts stated therein but with a proviso empowering the Court to either on its own motion or on the application of the other party direct such pathologist to attend Court for purposes of cross-examination. The Courts have interpreted this provision to mean that it is not mandatory for a medical officer who performed an autopsy on a deceased to be present in Court to give evidence during trial and that production by either party of a certificate signed by the medical officer was sufficient evidence of the facts stated in the autopsy report –
Isiekwe Vs State (1999) 9 NWLR (Pt. 617) 43, State Vs Ajie (2000) 11 NWLR (Pt. 678) 434 and Oguno Vs State (2011) 7 NWLR (Pt. 1246) 314.
Section 294 of the Criminal Procedure Code extends the provision of Section 55(1) of the Evidence Act to all written reports by a medical doctor or registered medical practitioner of the examination carried out on a person for the purpose of proving the nature of injury suffered or received by that person. The medical report, Exhibit C, was signed by a medical officer in the service of the Gombe Specialist Hospital at the time material to this suit and the records show that the Counsel to the Appellant did not request for the attendance of the medical doctor in Court. Thus, the non-attendance of the medical officer, Dr L. O. Akanbi, in Court is really of no consequence and the lower Court was bound in the circumstances to accept the medical report as sufficient evidence of its contents – Ehot Vs State (1993) 4 NWLR (Pt 290) 644 and State Vs Ajie (2000) 11 NWLR (Pt. 678) 434. The sixth prosecution witness who tendered the report was the Head of Administration and Finance and the acting head of clinical services at the Gombe Specialist Hospital at the time the examination of the victim was carried out and he stated that he was familiar with the handwriting and signature of Dr. Akanbi; he was competent to tender medical report.
On the second ground of complaint, Counsel to the Appellant clearly did not avert his mind to the fact that corroborative evidence does not need to be direct evidence that the accused person committed the offence and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission. The contents of the medical report and the circumstances leading to the examination of the victim, as led in the unchallenged evidence of the third prosecution witness, corroborated the evidence of the victim, the fifth prosecution witness, in very material particulars and, where taken along with the evidence of the victim, linked the Appellant to the commission of the crime. The reliance placed by the lower Court on the medical report as corroborating evidence cannot be faulted.
The lower Court also found the evidence of the fourth prosecution witness as corroborative evidence of the testimony of the victim.
The fourth prosecution is the mother of the victim and she gave evidence that she knew the accused person and that he had a shop in the same neighbourhood that they resided in and that on the day of the incident, she sent the victim to the shop of the accused person with twenty Naira to buy beans and that the victim went and stayed for a long time and returned without the beans or the money. The witness continued thus:
“… When she came back, I gave her fifty Naira to go back and buy the beans for me. She collected the money, came out of the house and started crying. I went out and asked whether she will not go for the errand. She says she will go but not to the shop of the accused Mohammed. When I asked her why she will not go to the accused shop, she says when she goes to Mohammed Ali shop he used to insert something into her private part. The accused used to remove something from his trouser and put in into her private part …”
Counsel to the Appellant contended that the evidence of the fourth prosecution witness was hearsay evidence and could thus not amount to credible corroboration of the evidence of the victim.
It is elementary that evidence of a statement made to a witness by a person who is not himself call as a witness is hearsay and is inadmissible when the object of the evidence is to establish the truth of what is contained in the statement – Arogundade Vs The State (2009) 6 NWLR (Pt 1136) 165, Jubril Vs Federal Republic of Nigeria (2018) LPELR 43993(CA). The evidence led by the fourth prosecution witness that she sent the victim to the shop of the accused defendant to buy beans and that the victim stayed for a long time and came back without the money or the beans and that when she sent the victim to go back to buy the beans, the victim refused to go and was crying, are statements that the witness perceived herself and is not hearsay evidence. The statement of the witness of what the victim told her as the reason for her not wanting to go back to the shop of the accused defendant cannot also be termed as hearsay evidence because the victim, who told her, testified as a witness and her evidence confirmed the statement of the fourth prosecution witness. The evidence of the fourth prosecution witness corroborated the evidence of the victim in material particulars and the lower Court was correct to have treated it as such.
Further, it is pertinent to state that the records of appeal show that the victim was not cross examined by the Counsel to the Appellant on her evidence of what she said the accused defendant did to her when she went to buy beans from his shop. It is settled that the testimony of the witness will be believed in such circumstances and that subsequent attempt by the accused defendant to contradict the evidence is to be treated as an afterthought – Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119, Chukwu Vs State (2013) 4 NWLR (Pt 1343) 1, Egwumi Vs State (2013) All FWLR (Pt. 678) 824, Aliyu Vs State (2013) 12 NWLR (Pt. 1368) 403. This point was succinctly explained by Achike JSC in Oforlete Vs State (2000) 12 NWLR (Pt. 681) 415 at 436 C-E thus:
“…where an adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence. … After all, the noble art of cross-examination constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory, if not suicidal bad practice, for counsel to neglect to cross-examine a witness after evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchallenged evidence.”
The records of appeal further show that the lower Court considered the evidence led by the three defence witnesses. The first defence witness, one Abdullahi Yakubu, and the second defence witness, Salisu Ali, both gave evidence that they were at the shop of the accused defendant on the day of the event and that they saw the victim come and leave and that what the victim testified happened between her and the accused defendant did not take place. The Appellant was the third defence witness and he also denied raping the victim. The lower Court rejected the case presented by the three defence witnesses on the grounds (i) that the Appellant in his extra judicial statement to the Police, tendered as Exhibit B, denied that the victim came to his shop on the day of the incident and asserted that he did not see the victim at all on that day, while in his oral evidence before the Court he admitted that the victim came to his shop on the day to buy beans and he told her that beans had finished; (ii) that the Appellant claimed in his oral evidence that the prosecution witnesses told lies against him, but not specify the exact untruths in the evidence of the prosecution witnesses; (iii) that in the extra judicial statement to the Police, Exhibit B, the Appellant stated that the names of the person who were his witnesses as Mallam Samaila and Mallam Usman, and not Abdullahi Yakubu and Salisu Ali who testified as the first and second prosecution witnesses.
The Appellant did not appeal against the rejection of his case by the lower Court and his Counsel did not canvass arguments in this appeal challenging the findings of the lower Court thereon or the grounds of the lower Court in rejecting the evidence. It is settled law that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and it is binding on and conclusive between the parties. It cannot be re-examined by this Court – Kayili Vs Yilbuk (2015) 7 NWLR (Pt. 1457) 26, Governor of Ekiti State Vs Olayemi (2016) 4 NWLR (Pt 1501) 1, Braithwaite Vs Dalhatu (2016) 13 NWLR (Pt 1528) 32 and Mancha Vs Emukowate (2017) LPELR 43113(CA).
The argument of Counsel to the Appellant that the evidence of the victim of the rape that the Appellant inserted something in her private part which she did not know and that it was done outside the Appellant’s shop defied logic because there was no eye witness to the act is mere conjecture and speculation, in the circumstances, because with the unchallenged rejection of the evidence of the three defence witnesses there was no credible evidence before the lower Court describing the nature of the shop of the Appellant.
Speculation is the art of theorizing about a matter as to which evidence is not sufficient for certain knowledge and the law has no room for speculation and does not rely on it – Ikenta Best (Nig) Ltd Vs Attorney General, Rivers State (2008) 6 NWLR (Pt. 1084) 612, Galadima Vs State (2012) 18 NWLR (Pt. 1333) 610, Kalu Vs Federal Republic of Nigeria (2016) LPELR 40108(SC).
All in all, this Court finds that the Appellant has not given it any tangible or cogent reason to tamper with the evaluation of evidence carried out by the lower Court. This Court finds no merit in the appeal and it is hereby dismissed. The judgment of the High Court of Gombe State delivered by Honorable Justice J. A. Awak in Charge No GM/26C/2013 on the 30th of June, 2015 is affirmed along with the conviction and the sentence passed of the Appellant therein. These are the orders of this Court in this appeal.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with His Lordship that the Appellant has not given this Court any tangible reason to tamper with the evaluation of evidence carried out by the trial Court. Appeal therefore lacks merit and is hereby dismissed.
I affirm the conviction and sentence passed on the Appellant vide judgment of the High court of Gombe State delivered on 30th June, 2015 by J. A. Awak, J. in charge No. GM/26c/2013.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to read in draft the lead Judgment delivered by my learned brother, HABEEB A. O. ABIRU, JCA. and I am in total agreement with the reasoning and conclusion reached therein.
In consequence, I also find the appeal unmeritorious and is hereby dismissed. I affirm the Judgment of the Gombe State High Court delivered on June 30th, 2015.
I abide by the orders made therein.
Appearances:
Sule YusufFor Appellant(s)
Nape Hussaina Laima (ACSC, Ministry of Justice, Gombe)For Respondent(s)
