MOSHOOD AHMED v. THE STATE (2015)

MOSHOOD AHMED v. THE STATE

(2015)LCN/7913(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of June, 2015

CA/S/107C/2014

RATIO

CRIMINAL LAW: THE OFFENCE OF RAPE; THE INGREDIENT OF THE OFFENCE OF RAPE ACCORDING TO THE PENAL CODE

What is rape under Section 283 of the Penal Code? In EZIGBO v THE STATE (2012) LPELR-SC 35/2010, Onnoghen JSC, explained thus:-
“It is settled law that for the prosecution to sustain a conviction against the appellant under Section 283 of the Penal Code, the following ingredients of the offence must be established by evidence
(1) That the accused had sexual intercourse with the woman in question.
(2) That the act was done in the circumstance envisaged in any of the five paragraphs of section 282(1) of the Penal Code.
(3) That the woman was not the wife of the accused or if she was the wife, she had not attained puberty
(4) That there was penetration”

In IKO v THE STATE (2001) 14 NWLR (PT.732) 221 at 245, Kalgo JSC stated, on the essential ingredients of rape thus
“The essential and most important ingredient of the offence of rape is penetration and unless penetration is proved, the prosecution must fail (See R v HILL I East P. C. 439). But penetration however slight is sufficient and it is not necessary to prove any injury or the rupture of the hymen to constitute the crime of rape (See R v ALLEN 9C & P31. See also OKOYOMON v THE STATE (1972) 1 NMLR 292; (1972) 1 SC 21 at 33; JOS N.A. POLICE v. ALLAH N.A. GANI (1986) NMLR 8; IGBINE v THE STATE (1997) 9 NWLR (PT 519) 101.”

Even where the prosecutrix testified that the accused inserted his penis into her vagina, the law requires such evidence to be corroborated by an independent witness. See OKOYOMO v THE STATE (Supra) per Tanko Muhammad JCA (as he then was) in IDRIS RABIU v THE STATE (2005) 7 NWLR PT 925 at 491. per. TUNDE O. AWOTOYE, J.C.A.

EVIDENCE: CORROBORATION; THE EVIDENCE OF CORROBORATION THAT THE COURT MUST LOOK FOR IN A CHARGE OF RAPE

It is necessary to find corroboration for her evidence. What nature of evidence could constitute corroboration for the evidence of the prosecutrix? This was considered by Adekeye JSC. in POSU & 1 OR v THE STATE (2011) 3 NWLR 393 where her lordship stated thus
“The nature of the corroboration must depend on the peculiar facts of each case. Where rape is denied by the accused, the evidence of corroboration that the court must look for is for instance:
(a) Medical evidence showing injury to the private part or to other parts of her body which may have been occasioned in a struggle
(b) Semen stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed.” per. TUNDE O. AWOTOYE, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT IS NOT PERVERSE

According to Nnamani JSC (of blessed memory) in NARUMAL & SONS NIGERIA LTD v NIGER BENUE TRANSPORT COMPANY LTD (1989) NWLR (PT 106) 730:
“The relationship of the trial court and the court of Appeal on the issue of finding of fact is so well settled that a long dissertation on it is not called for. A court of Appeal will not normally interfere with the findings of fact of a trial court unless such findings are perverse. If the findings are based on the credibility of witness, a court of trial which had the advantage of seeing the witnesses and watching their demeanour is in a dominant position. See WOLUCHEM v GUDI (1981) 5 SC. 319 at 326; FATOYINBO & ORS v WILLIAMS (1956) 1 FSC. 87; KODLINYE v ODU 2 WACA 336 at 338; RAMONU ATOLAGE v SHORUN (1985) 1 NWLR PT 2, 360; MOGAJI v ODOFIN (1978) 4 SC. 91; OBISANYA v NWOKO (1874) 6 SC. 69; OKUOJA v ISHOLA (1982) 7 SC. 314; AKPAPUNA v NZEKA (1983) 2 SCNLR 1” per. TUNDE O. AWOTOYE, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

MUHAMMED L. SHUAIBU Justice of The Court of Appeal of Nigeria

Between

MOSHOOD AHMED Appellant(s)

AND

THE STATE Respondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellant on 30/5/2014 against the decision of the High Court of Justice Sokoto sitting at Bodinga which was delivered on 7/5/2014.

The accused/appellant was arraigned before the Court below on a charge which read as follows:-
“CHARGE
That you Mashood Ahmed on or about the 16th day of November, 2013 at about 1700 hours at Sokoto Guest INN Quarters of Wamakko Local Government Area of Sokoto State in Sokoto Judicial Division committed the offence of Rape to wit: you forcefully dragged one Hamida Aliyu aged 13 into the Bathroom and raped her and thereby committed an offence punishable under Section 283 of the Penal Code”

The charge was read and explained to the accused who pleaded not guilty. The prosecution then called witness who gave evidence in support of prosecutions case. The accused later gave evidence in his own defence. The Lower Court, after hearing both sides, held that the prosecution had proved its case and sentenced the accused to a term of 6 years imprisonment with effect from 18/11/2013 when he was first remanded in custody.

Dissatisfied with the decision of the Lower Court, the accused now appellant filed Notice of Appeal containing 2 grounds of appeal.

The grounds of appeal (shorn of the particulars) read thus
“GROUND 1
The learned trial Judge erred in law when he held that he was satisfied that the prosecution proves (sic) beyond reasonable doubt the guilty (sic) of the appellant for the offence of rape.
GROUND 2
The learned trial Judge erred in law when he believed the evidence of the prosecution analysed it and relied on it to find the appellant guilty without applying the same parameter to the evidence of the appellant.”

The record of this appeal was transmitted to this court on 24/9/2014 but deemed duly compiled and transmitted on 2/2/2015.

On 6/3/2015, the appellant’s brief of argument settled by his counsel Muhammed Adeleke was filed.

Learned appellant’s counsel formulated two issues for determination to wit:-
“(i) Whether in the circumstances of this case, it was safe to convict and sentence the appellant for offence of rape, his guilty (sic) having not been established beyond reasonable doubt? Distilled from ground 1 of the grounds of appeal.
(ii) Whether from the totality of evidence adduced at the trial court, the defence of the Appellant in this extra judicial statement and his evidence as DW1 was given any consideration? Distilled from ground 2 of the grounds of appeal.”

Learned appellant’s counsel on issue No. 1 submitted that the ingredients of the offence of rape were not established beyond reasonable doubt. He relied on Section 135(1) of the Evidence Act and NDIC v OKEM ENT. LTD (2014) 50 WRN 1 at 25, OFFORLETE v STATE (2000) 3 NSCQR 243 at 245 and ALABI v STATE (1989) 9 SCNJ 109 at 117.

He pointed out some contradictions in the prosecution’s case which he considered material:-
(i) Statement of PW1 to the Civil Defence Corps and her evidence compared to the statement of PW2 and her evidence in court.
(ii) He referred to the evidence of PW1 who said the appellant covered her mouth with her hijab and at the same time said she used her hijab to cover her private part.

He relied on ADEOTI v STATE (2009) 20 WNR 50 at 124. He submitted further that there was no evidence on record which corroborated the unsworn evidence of PW1 and PW2 and yet the appellant was convicted. He contended further that the Lower Court failed to distinguish HABIBU MUSA v THE STATE (2013) 8 NCC from the case in point.

He submitted further that the evidence of PW5 and PW6 conflicted with each other.

He urged the court to resolve issue No 1 in appellants favour.

On issue No 2, learned appellant’s counsel submitted that the defence put forward or that might be available to the accused person was not considered by the trial court. He asserted that the evidence of PW1 was not challenged. He submitted that penetration was not proved. He referred the court to the medical report Exhibit E. He further relied on ADEOTI v STATE (Supra).

He contended that the allegation of rape was a mere suspicion which could not take the place of legal proof. He cited MOMODU v STATE (2008) 28 WRN 24 at 76. He therefore submitted that the evidence of the appellant at DW1 was never considered.

The respondent’s brief was settled by Nuhu Adamu, the learned Attorney General of Sokoto State. The brief was filed on 23/3/2015. Learned Attorney General in his brief formulated two issues for determination, namely:-
“(1) Whether the prosecution has proved its case beyond reasonable doubt as held by the learned trial Judge.
(2) Whether the trial Judge had sufficiently considered the defence of the Appellant.”

Learned Respondent’s counsel argued the two issues together. He conceded that the burden was on the prosecution to prove its case beyond reasonable doubt. He cited ANI & ANOR v THE STATE (2009) 2 SC.M. 147 etc.

He submitted that this could be done through direct eye witness account, circumstantial evidence or the confessional statement of the accused. He relied on NIGERIA NAVY & ORS v LAMBERT (2007) 12 SCM (PT 2) 433. Learned Attorney General referred to the testimony of PW1 and Exhibit E which according to him proved that the appellant had sexual intercourse with PW1 without her consent. He also referred to the contents of Exhibit E which revealed the presence of whitish substance in the vagina of PW1.

Learned Respondents counsel contended that the contradictions highlighted by learned Appellant’s counsel were not fatal and material. He relied on THE STATE v AZEEZ & ORS (2008) 8 SCM 175 and MAIYAKI v THE STATE (2008) 11 SCM 49.

He urged the court to resolve issue No. 1 in favour of the Respondent.

On issue No. 2, Respondent counsel submitted that there was no defence put up by the accused/appellant which the learned trial court failed to consider. He submitted further that Exhibit E and the evidence of PW2 and PW4 provided enough corroboration for the evidence of the PW1. He therefore urged the court to resolve issue No. 2 in favour of the Respondent.

I have carefully considered the submissions of the learned counsel as contained in their respective briefs and the contents of the record of appeal.

I have deeply considered the issues as formulated by both sides. The issues are similar but I consider the two issues as formulated by the Respondent’s counsel more precise and I hereby adopt them for the purpose of this appeal.

For clarity’s sake I shall recapture the two issues hereunder.

ISSUE 1
Whether the prosecution has proved its case beyond reasonable doubt as held by the learned Judge.
ISSUE 2
Whether the trial Judge had sufficiently considered the defence of the appellant.

I shall consider the two issues together.

The appellant as aforestated was the accused in suit No. SS/64C/2013. He was charged with an offence of rape contrary to Section 283 of the Penal Code.

I shall view this appeal in the light of the above.

Now, the prosecutrix in the court below gave evidence that the accused entered his penis into her vagina. She said on page 24 of the record thus:
“He removed my trouser. I used my hijab to cover my private part. He fell me on the ground he removed my hijab from my private part. He removed his trouser and entered his penis into my vagina. He was called by somebody twice through the phone. He lay on top of me and inserted his penis inside my vagina.”

The learned trial Judge who saw her and watched her demeanour believed her and accepted her evidence as true. His lordship said on page 48 of the Record:
“PW1 was 13years and 4months old when she gave evidence. Having watched her demeanor her credibility and veracity are not in doubt.”

There was evidence of the torn trousers of the prosecutrix. There was the evidence of the dirty hijab. There was the medical report of the damaged hymen (Exhibit E) and there was the evidence of PW2 and PW4 that the prosecutrix could not walk properly after the incident.

PW7, Dr Bello Abubakar Ibrahim was the medical doctor who gave evidence. He said under examination in chief:
“I know Hamida Aliyu, she was brought to the hospital on 16/11/2013 by her parents and other people. They come with alleged rape (sic) for examination. I examined the girl I can identify the report through the name of the patient Hamida Aliyu. My signature and stamp. This is the report. I am the doctor in charge of all rape case.”

The medical report was tendered and admitted as Exhibit E.

He continued with his evidence:
“Hymen is a covering of the vagina. In this case the Hymen was damaged which is not normal for a girl of her age.”

Under cross-examination, the medical doctor insisted thus:
“I am an experienced Medical practitioner. I cannot recall the number of people that come for treatment. It does not mean that the vagina is normal or it was not tempered with. The mother of Hamida give me the information in paragraph one of Exhibit E. I do not know the accused person. I put the right finger index to examine them. We do not describe the size of adult penis because it varies. One finger cannot be size of adult penis. The accused person is an adult. Damage of hymen is an evidence of penetration of penis. Hymen is a cover of vagina. It is thicker than a net. Blood passes through the hymen. There was no bleeding in Exhibit E. I did not say the whitish substance found in Exhibit E is not sperm. No experiment was done to confirm. We did not find any infection that is why I referred her to UDUTH. There was no injury. Exhibit E contains the medical findings and the information of rape victim. The whitish substance found is colour less. There was no odour.”

For clarity’s sake, I hereby quote hereunder the content of the said Exhibit E, the medical report:
“RE: HAMIDA ALIYU, HOSP. NO 27705
The above named was brought to this Unit on the 16th of November, 2013 on alleged rape case. Said to have been raped by one Mashud Ahmed who lived in the same compound and had sexual intercourse with her in the toilet.
Examination finding revealed: a young girl, anxious looking, not pale. Vaginal examination was done: Normal Vulva and Vagina. Hymen was disrupted. No bleeding, nil bruiser.
Gloved finger stained with whitish substances. Assessment of suspect rape was made.
Some of the drugs prescribed include Amoxyl, postinor and was asked to do RVS, Pregnancy test, HIV for M/C/S.
DR. BELLO ABUBAKAR
MEDICAL OFFICER”

Apart from the medical evidence, there was the evidence of PW1, Fatima Aliyu a 12 years old who gave evidence inter alia thus:
“I passed by the kitchen when I saw the accused person dragging Hamida into the bathroom. I told my elder brother —– I saw Hamida crying when she came out of the bathroom.”

And under cross-examination, she said, Hamida crawled to the kitchen and she continued crying when she entered the kitchen.

PW4, the mother of the victim gave evidence that Hamida could not walk when she saw her after the incident.

The victim PW1, Hamida Aliyu a girl of 13years, 4 months of age gave a graphic account of what happened in her evidence thus:
“I am 13 years 4 months. I live at Sokoto Guest Inn quarters. I know the accused person. We live in the same house. My mother phoned and directed me and my younger sister Fatima to cook food before she came. I told Fatima Aliyu to clean the kitchen. When I wanted to enter the toilet she told me not enter because there was somebody inside. I did not enter but my senior brother Muftau entered the toilet. The accused person came out from the toilet and hit at the back of the toilet. When Muftau came out from the toilet I entered. When I came out the accused person stopped me. He prevented me from passing. He asked me the lotion I was using. I told him that I used Vaseline. He said I was lighter then him. He tried to hold my hand. He told me not to be scared. He held my hijab and trouser. He covered my face with the hijab and dragged me into the bathroom and locked the door. He removed my trouser. I used my hijab to cover my private part. He fell me on the ground. He removed my hijab from my private part. He removed his trouser and entered his penis into my vagina. He was called by somebody twice through the phone. He lay on top of me and inserted his penis inside my vagina. He later went to answer a call. He came back and met me crying. He told me to keep quite nothing will happened. He gave me N200. He told me to use my hand and hold my trouser. He brought me out of the bathroom. He went into his room and brought out kettle and told me not tell anybody. He went away. I could not stand properly. I managed to walk. I dropped the N200 naira at the counter. When my junior sister saw me she suspected that there was something wrong by the way I was walking.”

In my respectful view, there is sufficient corroboration for the evidence of the prosecutrix on record.

With due respect to the learned Appellant’s counsel, I am unable to see any defence raised by the accused either in his statement or evidence which the learned trial Judge failed to consider. The overwhelming evidence adduced by the prosecution caused the defence of the accused to fizzle out. I shall quote the statement of the accused Exhibit A, which he wrote himself in extenso, for clarity’s sake:
“I meet Amidat she coming from the toilet and am about to enter toilet too. So in front “outside” the toilet He said to the girl that I have intention to gave her something during Sallah and I don’t have much in my pocket, then I gave her N200 naira to buy minerals.
After that I ask her which cream she was using because I can see that she is lighter than me. During that period she step in the bathroom because she don’t want anybody to see us.
Before man and God I touch her body because we use to play in the same compound. I didn’t urge her (sic).
During the time I was telling her that I didn’t do anything then my wife call me from my phone, then I left the place.
Nobody believe me then they go for test and they don’t found anything. I was in the problem because nobody love me in the compound. (sic)”

And to complete the picture of the defence of the accused, I hereby capture his evidence in chief thus:
“I know PW4, we live in the same compound, I know PW1, 2 & 3. We live in the same compound, I am married with children. I did not rape PW1. Before 16th/11/2013 there are many children in my compound who asked me to give them sallah gift. I did not give them. I promised giving them after salary. On 16/11/2013. I met the PW1 out site the toilet and I gave her N200 sallah gift. She thanked me. I held her hand and asked her the cream she was using because she is lighter than me. She said she was using Vaseline. When my wife called me I left PW1. 20 minutes after I saw two Civil Defence officers with PW3. They said I raped PW1. I told them it was not true. They told me to follow them to their office which I did. They went to do medical test which shows I did not rape PW1. We wrote our statements. PW1 told the Civil Defence what PW4 told her to tell the civil defence. The father of PW4 told me where the problem was. He promised settling the matter by withdrawing the case but I was arraigned before the court on 18/11/2013. I did not hide in the toilet. I did not cover her mouth. I did not rape her. My phone ranged once when I was with PW1 that was when my wife called me. PW2 did not see me draggling PW1 into the bathroom. I want the court to discharge and acquit me.”

The learned trial Judge who saw and heard the witnesses accepted their respective evidence as true.

It has not been shown that the findings of fact of the learned trial Judge are perverse, so I have no reason to disturb his findings.

I have no hesitation in resolving the two issues in favour of the Respondent, as I do not see the helpfulness of the statement of the accused and his evidence in the face of the overwhelming evidence of the prosecution.

This appeal lacks merit.

I affirm the judgment, conviction and sentence of the accused/appellant by Bello Duwale J. in his judgment delivered on 7/5/2014 in suit No.SS/64C/2013.

I hereby dismiss this appeal.

PAUL ADAMU GALINJE, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Awotoye JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.

This victim in this appeal is a minor whose consent to sexual intercourse is immaterial even if she had given one. From the totality of the evidence at the Lower Court, the victim did not consent to the sexual intercourse. Evidence of penetration of the vagina is available in the testimony of the victim and the medical report. This is a very vital evidence, since penetration however slight is sufficient as it is not necessary to prove any injury or the rupture of the hymen to constitute an offence of rape. See Ribiu vs. State (2005) 7 NWLR (Pt.925) 491, Iko v. State (2001) 14 NWLR (Pt.732) 221, Okoyomon v. State (1972) 1 NWLR 292, Igbine v. State (1997) 9 NWLR (Pt.519) 101, Jos NA Police vs. Na Gana (1986) NWLR 8.

For this and the more detailed reasons in the judgment of my learned brother, I find no reason to disturb the judgment of the Lower Court. Accordingly this appeal shall be and it is hereby dismissed by me. The decision of the Lower Court including the sentence is hereby affirmed.

MUHAMMED L. SHUAIBU, J.C.A.: I have read before now, the lead judgment of my learned brother, Awotoye JCA, just delivered. My noble lord has, most comprehensively, dealt with the two issues and I am entirely in agreement with his reasoning and conclusion. I also find the appeal totally lacking in merit and dismiss it. I affirm the judgment, conviction and sentence of the Lower Court in Suit No.SS/64C/2013.

Appearances

Mohammed Adeleke with Mrs. E.N. LongbisFor Appellant

AND

Mrs. Aisha M. Dan tsoho, S.G. MOJ. Sokoto with Usman Mohammed (SCII)For Respondent