MUBARAK USMAN v. KANO STATE
(2018)LCN/12086(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of October, 2018
CA/K/342/C/2016
RATIO
CRIMINAL LAW: ON THE CHARGE OF RAPE
“On the charge of rape punishable under Section 283 of the Penal Code (Cap.105) Laws of Kano State, we must therefore have recourse to the essential ingredients of the offence. In POSU & ANOR V. STATE (2011) LPELR-1969(SC), Per ADEKEYE, J.S.C. (as he then was) laid down the criteria that in a charge of rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove the following – (a) That the accused had sexual intercourse with the prosecutrix. (b) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation. (c) That the prosecutrix was not the wife of the accused. (d) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not. (e) That there was penetration. See also OGUNBAYO V. THE STATE (2007) 1 NWLR PT. 1035 PG. 157, UPAHAR V. THE STATE (2003) NWLR (PT. 816) PG. 290, STATE V. OGO (1980) 2 NCLR 391, OKEYAMOR V. THE STATE (2005) 1 NCC PG. 499, STATE V. ANOLUE (1983) 1 NCR 71, IKO V. STATE (2005) 1 NCC PG. 499.” PER UWANI MUSA ABBA AJI, J.C.A.
DEFENCE: THE DEFENCE OF INSANITY
“Insanity is established by compelling medical evidence produced by the accused person. It is not the business of the Court to go on a voyage looking for motive. This is so because the absence of motive is not enough. The onus is not discharged by the Appellant denying his own action or/and claiming that he did not know what came over him. Rather the onus on the accused Appellant is discharged by credible evidence which was never produced in Court. The defence of insanity ought to and must be rejected since no evidence of previous abnormality was given. See Per RHODES-VIVOUR, J.S.C in STATE V. JOHN (2013) LPELR-20590 (SC), ORIGBO V. STATE (1972) 11 SC P.133. UGHIAKHA V. STATE (1984) 2 SC P.1. The defence of insanity is a very serious and a very delicate defence and should be so regarded by learned Counsel for the defence. It will be, to say the least, disastrously dangerous to allow any fanciful defence of insanity to obstruct the course of justice. If an accused pleads insanity as his defence, that insanity has to be proved by preponderance of evidence, otherwise a trial Court would be right to regard him as sane. See Per OPUTA, J.S.C in AIWORO V. STATE (1987) LPELR-274(SC). It is also laughable that the Appellant having denied committing the offence is now seeking for the defence of insanity. The defence of insanity is unmitigated and gives full defence for a crime committed and not for an uncommitted crime. This defence cannot avail the Appellant whatsoever.” PER UWANI MUSA ABBA AJI, J.C.A.
EVIDENCE: DIRECT EVIDENCE
“Direct evidence is said to be the best evidence. Section 126 of the Evidence Act, 2011, requires that oral evidence in all cases must be direct. Evidence is direct when, if the fact to be proved was seen, then by the witness who saw it. If it was heard, then it must be the evidence of the witness who heard it. See Per EKO, J.S.C in CHUDI VERDICAL CO. LTD V. IFESINACHI INDUSTRIES (NIG) LTD & ANOR (2018) LPELR-44701(SC). Evidence of a witness which the Court must act on is the direct oral evidence of a witness. That is what it takes to have a fact receivable as direct oral evidence of a witness. See YAHAYA V. OPARINDE (1997) 10 NWLR (PT. 523) 126; OJO VS. GHARORO (1999) 8 NWLR (PT. 615) 387.” PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
MUBARAK USMAN – Appellant(s)
AND
KANO STATE – Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of Justice Amina Adamu Aliyu of the High Court of Kano State Judicial Division in Charge No.K/124C/2013, delivered on 28/1/2016, wherein the Appellant was convicted and sentenced to 10 years imprisonment for the offence of rape.
The charge against the Appellant contained at pages 1-3 of the record in the Charge Sheet dated 8/11/2013 reads as follows:
CHARGE:
That you, Mubarak Usman, male, adult of Jingau Qtrs, Gwale Local Government Area, Kano State, on or about the 25th day of June, 2013 at about 12:30hrs at Jingau Qtrs in Gwale Local Government Area, Kano State within the Kano Judicial Division did commit an illegal act to wit; raped one Ummusalama, a girl child of 7 year old, you thereby committed the offence punishable under Section 283 of the Penal Code Law.
The facts from the records are that PW1 (a minor) after coming from school on 25/1/2014 testified that the Appellant held her hands and took her to an outer room of a house and removed her wears and inserted something like a stone inside her.
PW2 testified that on the said 25th, she saw the Appellant with the prosecutrix in the said room and when she saw her, she immediately got up from his lap and ran outside. Consequently, she informed the mother of the prosecutrix of what she saw. Evidence was taken wherein the prosecution called 6 witnesses and exhibits A-C were tendered while the Appellant testified for himself and called a witness. The trial Court at the close of the case convicted and sentenced the Appellant to 10 years imprisonment. The Appellant being dissatisfied with the said conviction and sentence appealed vide an amended Notice of Appeal dated 14/7/2017 and deemed filed on 17/10/2017, containing 4 Grounds of appeal therein.
In accordance with the Rules of this Court, the Appellant filed his brief of argument dated 18/7/2017 and deemed properly filed on 17/10/2017, settled by Tonye Krukrubo, Esq., wherein he formulated 3 issues for the determination of the appeal to wit:-
1. Whether the Respondent has proved the offence of rape beyond reasonable doubt to have furnished the trial Court with a basis to convict and sentence the Appellant.
2. Whether the trial Court was right in coming to the conclusion that the Appellant had sexual intercourse with the prosecutrix who is not his wife without regard to the evidence led by the Appellant.
3. Whether having regards to the provisions of Section 51 of the Penal Code Law of Kano State, the trial Court was right to have convicted the Appellant of the offence of rape as charged.
The Respondent on the other hand, filed its brief of argument on 22/3/2018 and deemed properly filed on same date, settled by Amina Yusuf Yargaya, Esq., (Director Legal Services, Chambers of the Hon. Attorney-General and Commissioner of Justice, Ministry of Justice, Kano State), and adopted all the issues formulated by the Appellant’s Counsel. Consequently, there followed a Reply brief by the Appellant’s learned Counsel dated 18/5/2018 and deemed properly filed on 24/9/2018.
At the hearing of the appeal on 24/9/2018, the Counsel to the Appellant adopted his brief of argument and prayed this Court to allow the appeal and set aside the conviction and sentence of the Appellant while the Counsel to the Respondent adopted his brief and urged the Court to sustain the conviction and sentence of the trial Court.
I shall consider this appeal on a single issue reframed by me.
ISSUE FOR DETERMINATION:
Whether from the totality of the evidence adduced, the ingredients of the offence of rape were proved by the Respondent beyond reasonable doubt to secure the conviction of the Appellant.?
The Appellant’s learned Counsel has submitted that to ground conviction in the case of rape, 2 major ingredients are that the accused had sexual intercourse with the prosecutrix and that there was penetration. In proof of sexual intercourse with the prosecutrix, the prosecution relied on the testimonies of its witnesses and Exhibits A, B and C. That PW1 was not legally competent to give a sworn testimony since she was only 7 years old at the time of the incident and must pass the test provided in Section 209(1)(3) of the Evidence Act and the case of SAMBO V. STATE (1993) 6 NWLR (PT. 300) AT 422. Furthermore, that her evidence was not corroborated contrary to the decision in RABIU V. STATE (2005) 7 NWLR (PT. 925) 495. That the testimonies of PW3-PW5 are hearsay and have no place in our jurisprudence.
He relied on EKPO V. STATE (2001) FWLR (PT. 55) 454. Similarly, it is contended that Exhibit A, the medical report was not tendered by the maker contrary to Sections 68 and 83(1) of the Evidence Act andAG OYO STATE V. FAIRLAKES HOTELS (NO.2) (1989) 5 NWLR (PT. 121) 291; nor was it helpful to the prosecution at all.
Again, it is submitted that the confessional statements contained in Exhibits B & C of the Appellant were not properly admitted since it was not in Hausa version spoken by the Appellant and there was no interpreter called as held in STATE V. SALAWU (2011) 18 NWLR (PT. 1279) 580, HARUNA V. AG FED (2012) LPELR-7821 SC. Equally contested is that the Exhibit B was not subjected to the 6 tests laid down in R V. SKYES (1913) 8 CR APP R 233 in determining the veracity of a confessional statement. On the second ingredient, that there was penetration, the prosecution equally failed to prove that there was even slight penetration as upheld in IKO V. STATE (2001) 14 NWLR (PT. 732) 195.
It is further submitted that there was no proper evaluation of the evidence since the trial Court did not consider the defence of mental illness of the Appellant posed by DW2 when same was not challenged.
It ought to have been acted upon as held in OFORLETE V. STATE (2000) 12 NWLR (PT. 681) 415. Thus, that failure to make finding on the defence of insanity however silly is fatal to the case of the prosecution as strengthened in the case of AKPABIO V. STATE (1994) 7 NWLR (PT. 359) 671. Finally, that the trial Court was in error to convict the Appellant contrary to Section 51 of the Penal Code when it was shown by evidence that he was mentally sick. He relied on the case of LOKE V. STATE (1985) 1 NWLR (PT.1) 1. He therefore prayed this Court to allow the appeal and set aside the conviction of the Appellant.
The Respondent’s learned Counsel has on the contrary contended that proof beyond reasonable doubt is not proof beyond all shadow of doubt. He relied on MUFUTAU BAKARE V. STATE (1987) 1 NSCE AT 273. That by the evidence of PW1, PW2, PW4 and the confessional statement of the Appellant, both the ingredients of sexual intercourse and penetration have been proved against the Appellant. Similarly, he declared that the testimony of PW1, the prosecutrix was corroborated by the medical report, the confessional statement and the testimonies of all the prosecution witnesses. He stated that where evidence is not challenged or contradicted, it renders the fact as true. He relied on OFORLETE V. STATE (2000) 12 NWLR (PT.681) 415. Besides, he submitted that whether evidence is corroborated or not, the Court must take the evidence as a whole and not piece by piece, and corroboration must not consist of direct evidence as emphasized in ISAH AHMED V. NIG ARMY (2011) 1 NWLR (PT. 1277) 87.
Moreover, he submitted that corroboration in sexual offences is not a legal requirement but a matter of practice as held in HABIBU MUSA V. STATE (2013) LPELR 19932 SC. In the same vein, he stated that the medical report was corroborated by the confessional statement of the Appellant that there was sexual intercourse and penetration with deposit of semen.
It is hotly contested that mere denial or retraction of a confessional statement is not sufficient to reject it as decided in HABIBU MUSA V. STATE (SUPRA). Therefore, the evidence of PW1, the medical report (Exhibit A), Exhibits B & C and testimonies of PW4-PW6 are facts not disputed by the Appellant. He argued that there was penetration wherein the medical report showed that the hymen was broken. Thus, penetration however slight is sufficient to sustain conviction as decided in IKO V. STATE (2001) 4 NWLR (PT. 732) 221.
It is submitted that there was a reasoned and considered evaluation of all the evidence adduced at the trial by the trial Court in convicting the Appellant. He emphasized that by Section 139(3) of the Evidence Act and the case of NKANU V. STATE (1980) NSCC 117, the defence of insanity is on the accused person. To establish the defence of insanity, the relevant facts laid down inEJINIMA V. STATE (1991) 6 NWLR (PT. 200) 627 must be followed which the Appellant cannot benefit from. He therefore prayed this Court to dismiss the appeal.
I will not gloss over the Reply brief of the Appellant. The Appellant had another opportunity wherein he amply dilated on the legal requirement of corroboration in sexual offences. Having gone through the 7-page reply brief, I discovered no new issues responded to save some needless ambulation and repetition of the issues earlier discoursed. Per GALINJE, J.S.C in KOMOLAFE V. FRN (2018) LPELR-44496(SC) tackled such when he declared that “The essence of a reply brief is not to reopen argument already canvassed. It is to reply to new issues that have arisen in the Respondent’s brief of argument.” With this, it is not necessary to consider the Reply brief filed by the Appellant?s learned Counsel and is hereby discountenanced.
I have read the record and the accompanying proceedings of the trial of the Appellant and appears so interesting to me to carefully determine his culpability or otherwise.
On the charge of rape punishable under Section 283 of the Penal Code (Cap.105) Laws of Kano State, we must therefore have recourse to the essential ingredients of the offence. In POSU & ANOR V. STATE (2011) LPELR-1969(SC), Per ADEKEYE, J.S.C. (as he then was) laid down the criteria that in a charge of rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove the following –
(a) That the accused had sexual intercourse with the prosecutrix.
(b) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.
(c) That the prosecutrix was not the wife of the accused.
(d) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not.
(e) That there was penetration.
See also OGUNBAYO V. THE STATE (2007) 1 NWLR PT. 1035 PG. 157, UPAHAR V. THE STATE (2003) NWLR (PT. 816) PG. 290, STATE V. OGO (1980) 2 NCLR 391, OKEYAMOR V. THE STATE (2005) 1 NCC PG. 499, STATE V. ANOLUE (1983) 1 NCR 71, IKO V. STATE (2005) 1 NCC PG. 499.
The two active ingredients the Appellant’s learned Counsel wants us to concentrate on are whether there was sexual intercourse with the prosecutrix and whether there was penetration. In order to prove these two basic ingredients, I will have recourse to the various ways of proving crimes in our criminal jurisprudence.
It is settled law that the prosecution can prove its case beyond reasonable doubt by any or the combination of the following means: a) By confession of the accused; b) By direct evidence of eye witnesses; and c) By circumstantial evidence. Was it possible therefore for the Appellant to have had sexual intercourse with the prosecutrix and penetrated into her?
The Appellant’s confessional statements was tendered by PW5 and PW6 and admitted in Evidence as Exhibits B and C respectively amidst retraction and denial by the Appellant through Counsel at pages 15-17 of the record. It featured and came to light that the word of caution was administered to the Appellant wherein he appeared to understand same and his statement being recorded in English was interpreted to him in Hausa which he admitted to understand and endorsed by a superior police officer before he appended his mark on it.
On Exhibit B contained at pages 36-37 of the records, the Appellant inter alia divulged to the Court as follows:
“I could remember that yesterday being 25/6/2013 at about 12.00hours, while I was together with my friend at our area by name Umar at our house, then one small girl came in order to pass, my friend called that girl and took her inside the waiting room of one house of Alhaji Malam where he removed his penis and removed the girl’s pant, then put his penis inside her private part. After he finished, then I took her again and I removed my penis out and I put it inside her private part.
Before I took my penis out, a woman came in order to pass and she saw me together with the girl. Where she asked me what I was doing together with the girl…then I released the girl. Then that woman warned me ‘While the mother of the girl went to our house and told my mother what I did to her girl. From there the teacher in the school refused to leave the issue, from there the matter was reported to the police.’
As earlier stated, this confession was objected to by learned Counsel to the Appellant that ‘the accused person did not make any statement at the police station and did not thumbprint on any document.’ See page 15 of the record. It is clear as crystal that denial of an alleged confessional statement is, not in the least, the same as alleging that it was made without the volition or free will of the accused. Therefore, the law is that a confession or an admission by an accused of the commission of the offence with which he is charged is not rendered inadmissible in evidence merely because the accused, at the point of tendering of the said statement or during his examination in chief or cross-examination denied ever making such statement. See ISAH & ORS V. STATE (2010) LPELR-5077(CA).
Besides, it is long settled that where an accused person objects to the tendering of a confessional statement on the ground that he did not make it, the question as to whether he made it or not is to be decided at the end of trial by the learned trial judge. No matter the objection by counsel, such a statement should be admitted since the issue of voluntariness of the statement does not arise for consideration. See Per RHODES-VIVOUR, J.S.C in SIMON V. STATE (2017) LPELR-41988(SC).
Furthermore, the retraction of a confessional statement will not render the statement inadmissible. The only duty on the Court in such circumstance is to see if there is any evidence outside the statement that makes the confession probable. See Per KEKERE-EKUN, J.S.C in OLANIPEKUN V. STATE (2016) LPELR-40440(SC). Moreover, Per PETER-ODILI, J.S.C in TAIYE V. STATE (2018) LPELR-44466(SC) citing and relying on the case of JOSEPH OGUNBADEJO V THE QUEEN (1954) 14 WACA 458 stated pungently that “a confession by itself is sufficient without further consideration to warrant a conviction unless the trial Court is satisfied that the case has not been proved beyond reasonable doubt.”
The trial Court in wariness and compliance to the above caution and warning went ahead to consider other evidence outside the confessional statement of the Appellant to establish the basic ingredients of sexual intercourse and penetration with the prosecutrix. The Prosecutrix as PW1, though being 7 years old at the time the crime was committed, was certified by the trial Court to understand what she was doing when it stated at page 6 of the record that ‘I have examined the child and she understands what telling lies is and if a person tells lies what would happen to him’ in accordance with the provision of the law. In both her testimony in chief and cross examination, she revealed as follows at page 6 of the record:
“My name is Ummasalama. I do not know age. Yes I know the accused person. On 25th January 2014, as I came back from school, he held my hand and took me to an outer room of a house, removed my pants and covered my mouth and put something inside me (she pointed at her private part), he inserted a stone inside my vagina. (She does not even know the name of penis what innocence.) We were two coming from school, me and Ummukulssum. At the time he held my hand, Ummukulssum has gone home. Yes I saw someone in the inner room. I saw Mubarak the accused person.”
Direct evidence is said to be the best evidence. Section 126 of the Evidence Act, 2011, requires that oral evidence in all cases must be direct. Evidence is direct when, if the fact to be proved was seen, then by the witness who saw it. If it was heard, then it must be the evidence of the witness who heard it. See Per EKO, J.S.C in CHUDI VERDICAL CO. LTD V. IFESINACHI INDUSTRIES (NIG) LTD & ANOR (2018) LPELR-44701(SC). Evidence of a witness which the Court must act on is the direct oral evidence of a witness. That is what it takes to have a fact receivable as direct oral evidence of a witness. See YAHAYA V. OPARINDE (1997) 10 NWLR (PT. 523) 126; OJO VS. GHARORO (1999) 8 NWLR (PT. 615) 387. The evidence of some witnesses of the Respondent are very relevant here. At page 7 of the record, PW2 testified clearly thus:
“I know the accused person. On 25th June 2013 on that day I was washing. I started hearing voices coming from outside of a small girl and I peeped and saw Ummussalama and Mubarak and as soon as she saw me, she got up from his lap and ran outside and I asked my younger brother to follow her and came back and informed me that it was Ummusalama and so I went to see her mother (sic) to tell her what I saw. Then the mother checked Pw1 and then asked me whether I know the boy and I said yes, so we went to his father’s house and met his father and told him that Mubarak has raped her daughter and so the father asked her to take heart that this was about the 4th time he raped young girls and she said I will report the matter to the ward head and after that we parted.”
PW4 equally narrated in evidence in chief and cross examination what she saw, heard and perceived as follows at pages 9-10 of the record:
“I know the accused person. When Karimatu came to my house and inquired about my children and I asked her to come and when she saw Ummusalama she said she was the – PW1 and she asked me to check and I checked her and saw sperm and she escorted me to the house of the accused person and we met his father and informed him that Mubarak has raped my daughter and his father pleaded with us that this was the 3rd time he raped somebody so I said I would not agree and I left and we went to her school and informed the school authority and they said that they will call him and two days after they called me and I went to the police station and we were sent to the hospital and after two days we were brought to SCID?Karimatu is my neighbor. Yes my daughter was outside playing. Yes if Karimatu had not come to inform me I would not have known. It was Karimatu that asked me to search my daughter. Yes I only saw sperm in and out of her vagina. We went to the hospital with aunty Hussaina, one of her teachers.”
Evidence of corroboration of the evidence of the victim in a rape case is not required as a matter of law; it is now a well-established practice by the Courts in Nigeria. The nature of the corroboration must depend on the peculiar facts of each case. See Per RHODES-VIVOUR, J.S.C, in POSU & ANOR V. STATE (2011) LPELR-1969(SC). Nevertheless, the trial Court burdened itself to look outside the evidence of the prosecutrix other evidence to establish culpability of the Appellant or otherwise as done above.
Proceeding further, the next issue is whether the Court below was right in admitting Exhibit A, a medical report for rape, when the maker was not called to give evidence in Court so as to be cross examined? Section 249(3)(a)(b) and (c) of the Criminal Procedure Code provides as follows:- “249 (3)(a) A written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him. (b) On the admission of such report, the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court. (c) If by any reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medial officer or registered medical practitioner shall attend and give evidence in person the Court shall summon such medical practitioner to appear as a witness.”
Although Section 249(3)(b) provides that the written medical report shall be read to the accused after its admission in evidence and he shall be asked whether he disagrees with any statement therein, where the accused person is represented by a Counsel, the Court needs not ask the accused person if he agrees with any statement in the medical report. See A.G DIFA V. THE STATE (1977) NNLR 224. A medical report is admissible even if it is not tendered through the maker. See Per GALINJE, J.S.C in FULANI M V. STATE (2018) LPELR-45195(SC). See also SPDC V. IKONTIA & ORS (2010) LPELR-4910(CA).
It is on record that the medical report, Exhibit A was not objected to by the Appellant’s Counsel because the maker was not in Court. The position of the law is that although a medical report is not mandatory for proof of the commission of the offence of rape, once there is a denial at play of the commission of the offence by the accused person which the prevailing circumstances do not support, the Court is encouraged to look for a medical report showing injury to the private part or any other part of the body of the rape victim. In other words, the intendment of a medical report is to establish injury sustained to the private part, that is, the vagina, or any other part of the body of an alleged rape victim and nothing more. See the cases of IKO V. THE STATE (2001) SCNJ P.39 and KAZEEM POPOOLA V. THE STATE (2013) 17 NWLR (PT. 1382) P.96. It is my very strong view and I hold that, Exhibit A contained at page 35 of the record, issued on 26/7/2014 and tendered by PW5 is a clear proof and accords with other facts and evidence that PW1, the prosecutrix was raped with proof of broken hymen and sperm stains or deposit. The relevant portion of Exhibit A states as follows:-
“The above named patient was seen on the 26th of July 2013 with complaints of sexual assault following abduction. On examination, we found a young girl with wet vulva and broken hymen. A high vagina swab culture yielded staph areus sensitive to Augmentin and HIV test was negative. Prophylactic antibiotics given.”
It is now trite law that the defence of insanity can only avail the accused if he can show that he was insane at the time he committed the act. See Per AKPATA, J.S.C in EJINIMA V. STATE (1991) LPELR-1067(SC). In the instant appeal, the Appellant did not put up this defence in his confessional statement but later on as a cloak and afterthought.
In his defence at pages 18-19, he demonstrated that he was sound and sane at the time of the crime when he narrated that, I returned from the market and my head started to turn and I met my father and he took me to Dawanau and I was told that I was mad. He similarly revealed at page 19 that, I go to night school. This is a revelation that he is a student with sound mind without any history of insanity. Besides, if he was taken to hospital for insanity and with history of insanity, as alleged, this has not come up at all in his trial nor was the medical evidence of treatment or insanity presented. Moreover, with the testimonies given, there is nothing relevant or compatible to insanity in his case and he appeared fully sane to know what he was doing. He in fact revealed to the trial Court that he was told and not that he was mad.
Insanity is established by compelling medical evidence produced by the accused person. It is not the business of the Court to go on a voyage looking for motive. This is so because the absence of motive is not enough. The onus is not discharged by the Appellant denying his own action or/and claiming that he did not know what came over him. Rather the onus on the accused Appellant is discharged by credible evidence which was never produced in Court. The defence of insanity ought to and must be rejected since no evidence of previous abnormality was given. See Per RHODES-VIVOUR, J.S.C in STATE V. JOHN (2013) LPELR-20590 (SC), ORIGBO V. STATE (1972) 11 SC P.133. UGHIAKHA V. STATE (1984) 2 SC P.1. The defence of insanity is a very serious and a very delicate defence and should be so regarded by learned Counsel for the defence. It will be, to say the least, disastrously dangerous to allow any fanciful defence of insanity to obstruct the course of justice. If an accused pleads insanity as his defence, that insanity has to be proved by preponderance of evidence, otherwise a trial Court would be right to regard him as sane. See Per OPUTA, J.S.C in AIWORO V. STATE (1987) LPELR-274(SC). It is also laughable that the Appellant having denied committing the offence is now seeking for the defence of insanity. The defence of insanity is unmitigated and gives full defence for a crime committed and not for an uncommitted crime. This defence cannot avail the Appellant whatsoever.
It can be gleaned from the above excerpt that, PWI’s hymen was ruptured and deposit or stain of sperms seen. This clearly and undeniably shows that there was sexual intercourse and penetration by the Appellant. What is more is that since the Appellant was squarely fixed and seen or in fact caught red handed, I see no little space in the noose for him to wriggle out. There is evidently no chance for him whatsoever to be exculpated. The Appellant should rather be thankful to the trial Court for its leniency and magnanimity and not to tour the way of appeal.
This issue is resolved against the Appellant. The conviction of the Appellant on this charge also stands. I therefore hold that the Respondent in the instant appeal has proved its case satisfactorily beyond reasonable doubt against the Appellant who has failed woefully to prove his innocence. The judgment of the trial Judge is impeccable and must remain untampered. Thus, the judgment of Justice Amina Adamu Aliyu of the High Court of Kano State Judicial Division in Charge No.K/124C/2013, delivered on 28/1/2016, wherein the Appellant was convicted and sentenced to 10 years imprisonment for the offence of rape, is hereby affirmed and the appeal is consequently dismissed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had a preview of the lead judgment of my Lord, Justice Uwani Musa Abba Aji, JCA which has just been delivered. I am in agreement with the lucid reasoning and resonating conclusion that the instant appeal matter is devoid of merit and that the same should be dismissed.
I wish to add few comments for the purpose of emphasis and in affirmative support of the said lead judgment of my lord, Abba Aji, JCA. Rape is a serious offence. It is odious when it involves the rape of a minor. For the essential ingredients of the offence of rape to be established, the slightest penetration of the penis into the vagina of the prosecutrix suffices. In the instant case, there was proof of penetration which was attributed and or linked to the appellant.
It is also settled law, that the term ?corroboration? which is required as a matter of practice and not a rule of law in a case of rape; is no more than evidence which tends to lend credence, strengthen, support and substantiate the consistency of other pieces of evidence sought to be corroborated. Indeed, it needs not amount to confirmation of the gamut of evidence given by another witness and more particularly by the prosecutrix. Such corroborative evidence is deemed adequate, once it corroborates the material evidence in some aspects which are germane to the essential ingredients of the charge levelled against the accused person, to the implicating effect that not only has an offence been committed, but that the accused person was the person who perpetrated it. See Oludotun Ogunbayo vs. The State (2007) 3 SCNJ 160; Posu & Anor. Vs. State (2011) 1 ? 2 SC (Pt. 1) 156. It is thus, instructively significant and noteworthy, that the nature of corroboration required, must necessarily depend on the peculiar facts and given circumstances of each case.
Again and in the instant case, the evidence of PW1 -Ummasalama, garnered adequate corroboration from the report contained in the Medical Report, Exhibit A which was tendered and admitted without objection; to the bothersome, saddening and worrisome effect, that upon examination, PW1 – Ummusalama was found with wet vulva and broken hymen. Additionally, other pieces of evidence given by PW2 – Karimatu Mustapha and PW4 – Hauwa Hassan, the mother of PW1 amply corroborated and implicated the appellant with regard to the callous, traumatic and unconscionable predatory sexual assault unleashed on PW1 by the appellant.
Appertaining to the defence of insanity which was belatedly/supposedly raised and as argued by the learned counsel for the appellant; whether the Appellant was sane or insane in the legal sense at the material time/period when the reprehensible act was committed is a question of fact to be decided by the learned trial judge. SeeLasisi Saliu Vs. The State (1984) 15 NSCC 640. Thus, the law is settled, that an accused person who raised or placed reliance on insanity as a defence, is obliged to proffer evidence in support thereof. Howbeit, the kind of evidence which is required in that regard, is on the same platform as the onus which is expected to be discharged by a platintiff/defendant in a civil suit. See Ukadike Vs. The State (1973) 6 SC 17 at 28. In this vein, the most assured way of establishing insanity is basically by medical evidence.
That is by the giving of evidence by an expert in that field. Nevertheless, proof of insanity can also be established from pieces of evidence given by eye witnesses which are powerful, evoking attention and deserving of being given positive consideration. This is moreso, when such evidence emanates from relatives of the accused person and relates to his antecedent and general behaviour before, during and after the incident which pertained to the charge laid against the said accused person. See the concurring judgment of Ogbuagu, JSC in Anthony Ejinima Vs. the State (1991) 7 SC (Pt. III) 1.
Indeed, there is no bounden duty on the trial Court to conduct an investigation into the mental state of an accused person, where there is no indication of or pointer to specific abnormality or diminished responsibility repeatedly demonstrated by the accused person. Thus, an accused person, such as the appellant herein, can only invoke the plea or defence of insanity, where he can show a nexus/proximity between his acclaimed insanity and the offence which he was alleged to have committed.
Let me reiterate, that rape is appalling, dreadful and horrific. There is thus, the dire need for the rising incidence of rape in the society, to be seriously addressed and truly curbed. Towards this end, rapists upon apprehension, prosecution and conviction, must be dealt with decisively and incisively with punishment that befits the crime and tends to serve as a deterrence. Indeed, our sense of justice must address the issue and provide effective and practical solutions to this seemingly intractable problem.
Having perused the printed record of appeal placed before us, I am also of the firm view point that the scanty/terse evidence put forward by the appellant in this case did not entitle him to the benefit of either Sections 50 or 51 of the Penal Code Law of Kano State. Consequent upon the above and the more elaborate reasons advanced in the lead judgment of my lord, Abba Aji, JCA, I also find that the instant appeal lacks merit and it is accordingly dismissed. The decision of the lower Court is thereby affirmed by me.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read in draft form, the judgment of my lord UWANI MUSA ABBA-AJI JCA. and I agree in toto with the reasoning and conclusions of my lord.
The evidence adduced against the Appellant at the lower Court was cogent and compelling and was such that proved the case against him beyond reasonable doubt. Indeed the Appellant was caught pants down having been caught in the very act of committing the offence as the evidence of PW2 shows. The evidence of PW2, the evidence of the victim, the evidence of the victim?s mother that revealed that she found sperm in the private part of the victim, and the medical report, Exhibit A, are all corroborative of each other and lead to the inexorable conclusion that the Appellant raped Ummusalama, a girl of just 7 years of age. In my view, the Appellant should thank his lucky stars that he got a sentence of 10 years imprisonment. The appeal has no merit and is dismissed. The conviction and sentence of the Appellant is affirmed.
Appearances:
Tonye Krukrubo, Esq. For Appellant(s)
Amina Yusuf Yargaya, Esq., (Director Legal Services, Ministry Of Justice, Kano State) with him, Binta Tukur Abdullahi, Esq, SSC.For Respondent(s)
