MUHAMMAD v. STATE (2020)

MUHAMMAD v. STATE

(2020)LCN/14570(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, September 11, 2020

CA/K/402/C/2019

RATIO

PLEADINGS: BURDEN OF PROOF.

It is settled 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. Where the commission of crime by a party is in issue in any proceedings, 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.
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 or proof of a mathematical certainty. 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 – Isah Vs State (2018) 8 NWLR (Pt 1621) 346, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1 The Appellant was charged with rape; he was alleged to have invited one Farida Muktari, aged ten years, into an uncompleted building and had sexual intercourse with her. The essential ingredients that the Respondent was under obligation to prove beyond reasonable doubt to sustain the charge against the Appellant were (i) that the Appellant had sexual intercourse with the victim; (ii) that the act of sexual intercourse was done without consent of the victim or that the consent, if any was obtained by fraud, force, threat intimidation, deceit or impersonation or that the victim was under the age of fourteen years, the law is that a girl under fourteen years cannot give consent; (iii) that the victim was not the wife of the Appellant; (iv) that the Appellant 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 – Julius Vs State (2019) LPELR 48491(CA), Enang Vs State (2019) LPELR 48682(CA), Idam Vs Federal Republic of Nigeria (2020) LPELR 49564(SC).

It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RATIO

PLEADINGS: EVALUATION OF EVIDENCE.

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 context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt. 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt. 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt. 1630) 353.
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 – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt. 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt. 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289.
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable –Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt. 1270) 217, State Vs Sani (2018) 9 NWLR (Pt. 1624) 278. Therefore, an appellate Court will only 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 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 – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.

Counsel to the Appellant contended against the evaluation of evidence carried out by the lower Court on four main grounds – (i) the inconsistency in and the unreliability of the evidence of the first prosecution witness; (ii) inconsistency in the confessional statement of the Appellant, Exhibits P1 and P2, and its contradiction of the particulars of offence charged; (iii) the reliance placed on the medical report, Exhibit P3; and (iv) the rejection of the case made out by the Appellant.

On the first ground, Counsel to the Appellant contended that the finding of the lower Court that the testimony of the first prosecution witness was not shaken and/or contradicted under cross-examination was incorrect. Counsel stated the evidence of the witness was destroyed under cross-examination as she admitted that she was asked to say all that she said in the lower Court by somebody in Ringim. Reading through the notes of evidence of the first prosecution witness as contained in the records of appeal, this Court must say it is unable to see the inconsistency elicited in the evidence of the witness and/or the disparagement occasioned to the evidence under cross examination. It is elementary that the contents of the notes of evidence, like the content of any document, must be read in whole, and not in parts in isolation, to get a full picture of the story contained therein – Ogah Vs Ikpeazu (2017) 17 NWLR (Pt. 1594) 299, Peoples Democratic Party Vs Oranezi (2018) 7 NWLR (Pt. 1618) 245.

In her evidence-in-chief, the first prosecution witness gave a lucid and detailed account of an incident where the Appellant took her into an uncompleted building and had sexual intercourse with her. The detailed account of the incident was not scratched under cross-examination, rather Counsel to the Appellant asked the witness whether she was told by someone in Ringim to come and relate what she said in Court and the witness answered, Yes, that the person told her to come to Court and tell the truth. This answer of the witness, in the view of this Court, was an affirmation of the truthfulness of the account given in her evidence-in-chief, and not a disparagement of the evidence. The finding of the lower Court that the evidence of the witness was not shaken or discredited under cross examination was thus correct. The first of contention of the Counsel to the Appellant is not well founded.

The second contention of the Appellant was against the reliance placed on the confessional statement of the Appellant, the Hausa and English versions of which were tendered as Exhibits P1 and P2 respectively. The Hausa version was signed by the Appellant, the Investigating Police Officer, the third prosecution witness, as recorder, and by the attesting Superior Police Officer to whom the Appellant was taken for confirmation of his confession, while the English version was only signed by the Investigating Police Officer who interpreted the statement into English. Counsel to the Appellant queried the usefulness of the English version of the confessional statement since it was not signed by the Appellant. Counsel further queried the probative value of the Hausa version of the statement because the endorsing Superior Police Officer wrote that the confession was in respect of rape of Farida Yahaya while the name of the victim, the first prosecution witness, in this charge is Farida Muktari.

With regards to the query raised by Counsel to the Appellant on the non-signing of the translated English version of the confessional statement, Exhibit P2, by the Appellant, the Supreme Court, as rightly stated by the Counsel to the Respondent, has held that such non-signing of the translated version is insignificant, so long as it is signed by the interpreter. In State Vs Sa’idu (2019) 10 NWLR (Pt. 1680) 308, Okoro, JSC, made the point at page 321B-D thus:
“There is no doubt that Exhibit 8A, the main statement made in Hausa by the respondent was actually thumb printed by him. There is no quarrel about the statement. However, the grouse of the respondent is that the translated version was not signed by the respondent though signed by the translator… The respondent’s confessional statement, though retracted, was duly signed by him as made in Hausa which he understands. The translated version even if it was read over to him in English language would not have made any meaning to him as he would not have understood same. As far as the translator had signed the translated version, I hold that it does not make any difference that the accused did not sign it.”

On the issue of the inconsistency in the name, Farida Yahaya, written in the endorsement made on Exhibit P1 by the Superior Police Officer and the name of the victim in the charge in Court, Farida Muktari, the Court has read through the records of appeal and noticed this issue was not raised or canvassed by the Appellant in the lower Court either in the course of trial or in the final written address of his Counsel and it was not pronounced upon by the lower Court. There is no evidence that the Appellant obtained the leave of the Court to raise the issue in this appeal. The issue so raised is thus incompetent – Shaibu Vs State (2017) 16 NWLR (Pt. 1592) 396, Ewugba Vs State (2018) 7 NWLR (Pt. 1618) 262, Saliu Vs State (2018) 10 NWLR (Pt. 1627) 251, Jibrin Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt. 1635) 20, Mohammed Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt. 1636) 229, Osho Vs State (2018) 13 NWLR (Pt. 1637) 474.

Further, the records of proceedings in the lower Court show that the Investigating Police Officer, the third prosecution witness who tendered the two versions of the confessional statement, did so as the extra judicial statement made by the Appellant admitting the rape the first prosecution witness, Farida Muktari. The objection of the Appellant to the tendering of the statement at the time it was tendered was not that he made the statement, but that it was done involuntarily. It was never his case that he made the statement, but that it was in respect of the rape of another person. The third prosecution witness was not asked a single question under cross-examination on whether Exhibit P1 was made in respect of another victim called Farida Yahaya, and not in respect of the victim in this case referred to as Farida Muktari. By not cross-examining the witness on the point, it meant that the Appellant accepted the truth of the evidence of the witness that Exhibit P1 was made in respect of the victim in this case – Esene Vs State (2017) 8 NWLR (Pt 1568) 337,Isah Vs State (2018) 8 NWLR (Pt. 1621) 346, Patrick Vs State (2018) 16 NWLR (Pt 1645) 263, Egba Vs State (2019) 15 NWLR (Pt 1695) 201.

The evidence of the third prosecution witness that the confessional statement was in respect of the victim in this case asserts that the person referred to in the endorsement of Exhibit P1 as Farida Yahaya is the same person referred to in the charge against the Appellant as Farida Muktari. This evidence was not challenged, contested, controverted or countermanded by the Appellant. It is settled law that a Court is obliged to treat unchallenged evidence on a material fact as true, cogent and credible and to act on it, unless the evidence is patently incredible – Olude Vs State (2018) LPELR 44070(SC), Lanre Vs State (2018) LPELR 45156(SC), Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227, Daniel Vs Ayala (2019) LPELR 49344(SC), Ifediora Vs Okafor (2019) LPELR 49518(SC). The assertion of the third prosecution witness thereon is definitely not incredible on the facts and circumstance of this case because the name of the father of the victim, the second prosecution witness, is, according to the records, Muktari Yahaya. Thus, the victim could very well be called Farida Muktari or Farida Yahaya. The second contention of the Appellant is also not well founded.

On the third contention against the reliance placed on the medical report, Exhibit P3, the visible argument of Counsel to the Appellant against the relevant part of the medical report; i.e. the report of examination of the first prosecution witness, was that the lower Court should not have relied on it as the maker of the document was not called for cross-examination. The records of the lower Court show that Counsel to the Respondent placed reliance on the provisions of Section 249(3) of the Criminal Procedure Code in tendering the medical report from the Bar and Counsel to the Appellant raised no objection thereto. The records show that the medical report was admitted by the lower Court and it was read in open Court to the hearing of the Appellant.
Now, Section 249 (3) (a) (b) and (c) of the Criminal Procedure Code read that 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 and that 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. Further, that 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.
In interpreting these provisions, the Courts have held that though they say 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 disagrees with any statement in the medical report – Difa Vs The State (1977) NNLR 224, Danjuma Vs Kano State (2018) LPELR 44724(CA), Fulani M. Vs State (2018) LPELR 45195(SC). In other words, the medical doctor who authored a medical report did not need to attend Court to tender same for it to be admissible and relied upon, and it was only where the Appellant or his Counsel disagreed with the contents of the medical report after it was read in open Court that the lower Court was required, in the interest of justice, to order the attendance of the medical doctor – Adamu Vs Kano Native Authority (1956) FSC 29, Liman Vs State (1976) 7 SC (Reprint) 36 Now, it is settled law that during trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan Vs State (2001) 15 NWLR (Pt 735) 184, Kazeem Vs State (2009) WRN 43 and Osetola Vs State (2012) 17 NWLR (Pt 1329) 251.
In other words, the accused defendant must show either (i) that he did not make the statement at all; that it was make-believe or (ii) that he made the statement, but that the making of the statement was involuntary. Where the accused defendant contends that he did not make the statement, a trial Court will admit the statement and postpone the determination of its probative value to the stage of evaluation of evidence. Where the accused defendant contends involuntariness in the making of the statement, the trial Court will conduct a trial within trial at that stage to determine the issue of voluntariness, before admitting the statement if it finds it was made voluntarily – Onyenye Vs State (2012) LPELR 7866(SC), Ofordike Vs State (2019) LPELR 46411(SC), Usman Vs State (2019) 15 NWLR (Pt. 1696) 411, State Vs Ibrahim (2019) LPELR 47548(SC), Sale Vs State (2020) 1 NWLR (Pt. 1705) 205.
Thus, an accused defendant cannot rely on both situations in impeaching his extra judicial statement to the Police because they are mutually exclusive. Where an accused person puts forward both situations, as the Appellant did in the present case, his case will be inconsistent and contradictory. The law is settled that where a party puts forward a case consisting of two inconsistent and contradictory versions of evidence and he does not explain the inconsistency or contradiction, his case must be rejected by the Court – Popoola Vs State (2018) 10 NWLR (Pt 1628) 485, Awosika Vs State (2018) LPELR 44351(SC), Nwankwoala Vs State (2018) 11 NWLR (Pt 1631) 397, Orisa Vs State (2018) 11 NWLR (Pt 1631) 453. The Appellant did not explain why he put up two mutually exclusive, inconsistent and contradictory stories in canvassing his defence. The lower Court was obligated in the circumstances to reject his defence. The fourth ground of contention of the Appellant against the findings of the lower Court is also baseless.

What is evident from the case put canvassed by the Appellant in this appeal in his brief of arguments is that the bulk of his contentions were predicated on scenarios created by his Counsel and which had no foundation in the evidence led and in the case made out by the Appellant in the lower Court. For example, Counsel canvassed arguments on the failure of the Respondent to tender an extra judicial statement made by the Appellant at the Police Divisional Headquarters. Meanwhile, there was no evidence led by any of the prosecution witnesses that the Appellant made any such extra judicial statement and the Appellant too never said he made any such extra judicial statement. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

NAZIRU MUHAMMAD APPELANT(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 Jigawa State delivered in Case No JDU/25C/2016 by Honorable Justice Ado Yusuf Birni Kudu on the 14th of February, 2019.

The Appellant was charged with rape under provisions of Section 283 of the Penal Code of Jigawa State. The Appellant was alleged to have sometime in 2016 at the Abuja Quarters, Gumel Local Government Area of Jigawa State, invited one Farida Muktari, aged ten years, into an uncompleted building and had sexual intercourse with her. The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial. In the course of the trial, the Respondent called three witnesses and tendered three exhibits in proof of its case and the Appellant testified as the sole defence witness and he tendered no exhibit in his defence.

At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court found the Appellant guilty as charged and sentenced him to life imprisonment. The Appellant was dissatisfied with the judgment and he caused a notice of appeal dated

the 13th of May, 2019 and containing three grounds of appeal to be filed. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 5th of August, 2019 on the 7th of August, 2019 and in response to which, Counsel to the Respondent filed a brief of arguments on the 27th of August, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their oral submissions on the appeal.

Counsel to the Appellant distilled two issues for determination in the appeal and these were:
i. Whether there was credible, reliable and admissible evidence before the trial Court to justify the conviction of the Appellant for the offence of rape.
ii. Whether the self contradictory, uncorroborated evidence of the prosecutrix before the trial Court is sufficient in law to sustain the Appellant’s conviction for the offence of rape.

On his part, Counsel to the Respondent distilled one issue for determination in the appeal and this was:
Whether the learned trial Judge was right when he convicted and sentenced the Appellant to life

imprisonment for contravening the provision of Section 282(1)(e) of the Penal Code.

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 and reading the notice of appeal and the arguments contained in the respective brief of arguments of the parties, it is the view of this Court that there is only one issue for determination in this appeal and it 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?

All the arguments of Counsel to both parties shall be considered and resolved under this issue for determination.

In arguing the issue for determination, Counsel to the Appellant stated that the alleged

victim of the rape testified as the first prosecution witness and that under cross-examination, she contradicted her evidence in chief when she testified clearly and unequivocally that she was told to say all she said by someone in Ringim. Counsel stated that contrary to the finding of the lower Court that the testimony of the first prosecution witness was neither shaken nor contradicted during cross-examination, the evidence of the witness was battered under cross-examination and her account of the event of rape was contradictory and inconsistent on the fundamental point of the culpability of the Appellant and should not have been relied upon by the lower Court and he referred to the cases of Asuquo Vs State (2016) All FWLR (Pt. 857) 533 and Obri Vs State (2016) All FWLR (Pt. 513) 352.

Counsel stated that the reliance placed by the lower Court on the confessional statement of the Appellant, the Hausa and English versions of which were tendered as Exhibit P1 and P2, was wrongful. Counsel stated that Exhibit P1, the Hausa version, was the statement signed by the Appellant and that only the interpreter, the Investigating Police Officer, signed Exhibit P2, and

that in endorsing Exhibit P1, the Senior Police Officer before whom the Appellant was taken for confirmation of the statement, wrote that the confession was in respect of a case of rape of Farida Yahaya while the charge before the Court put the name of the victim as Farida Muktari. Counsel stated that the inconsistency in the names cast a reasonable doubt on the probative value of Exhibit P1 and such a confessional statement cannot thus act as corroboration for the evidence of the first prosecution witness and he referred to the case of Archibong Vs State (2006) 14 NWLR (Pt. 1000) 349.

Counsel noted that the Investigating Police Officer testified as the third prosecution witness and referred to the evidence given by the witness in the course of the trial-within- trial conducted by the lower Court to determine the voluntariness of the confessional statement of the Appellant and stated that the evidence of witness on the making of the statement was not consistent with the contents on the face of Exhibit P1 as the witness testified that the Appellant could not write and thumb printed his statement while Exhibit P1 showed that the Appellant wrote his name.

Counsel stated that these anomalies put a doubt on the credibility of the evidence of the third prosecution witness and on the freeness and voluntariness of the confessional statement of the Appellant and that the lower Court ought to have resolved these inconsistencies and doubts in favour of the Appellant.

Counsel referred to the case of Upahar Vs State (2003) 6 NWLR (Pt 816) 230 in reiterating the ingredients of rape incumbent on the Respondent to prove beyond reasonable doubt and the case of Adeoti Vs State (2009) All FWLR (Pt. 454) 1450 in asserting the onus of proof on the Respondent in criminal trials and stated that apart from the inconsistencies in the testimonies of the first and third prosecution witnesses, the Respondent failed to prove penetration which is an essential ingredient of the offence of rape. Counsel referred to Exhibit P3, the medical report, and stated that when the contents of the medical report is juxtaposed with the evidence of the second prosecution witness and the contents of the confessional statement, it will be seen that Exhibit P3 had nothing to do with the Appellant because while Exhibit P3 stated that the victim had

been sexually assaulted four times, the second prosecution witness and the confessional statements stated that the Appellant sexually assaulted the victim three times.

Counsel stated that what all these point to is that the version of the story of the Appellant that he was framed by one Muhammad Abdullahi and that the confessional statement was prepared by the Police and given to him to sign was probable and that where the evidence led by the prosecution does not eliminate the possibility of the version put forth by an accused person, the case would be held not to have been proved beyond reasonable doubt and he referred the case of Nwankwoala Vs State (2006) 14 NWLR (Pt. 1000) 663. Counsel stated further that the maker of the medical report was not called for the Appellant to cross examine contrary to the provisions of Section 249(3) of the Criminal Procedure Code, as explained in the case of Adeoti Vs State supra, that though the medical report confirmed the rupture of the hymen of the victim, it did not unequivocally show that it was penetration of the victim by the Appellant that caused it. Counsel stated that the reliance placed by the lower Court on

the medical report as a confirmation of the rape of the victim by the Appellant was speculative as there was no oral evidence in support thereof and that Courts do not act on speculation and he referred to the cases of Nweke Vs State (2017) 15 NWLR (Pt 1587) 120, Alao Vs Akano (2005) All FWLR (Pt. 264) 799 and Archibong Vs State supra.

Counsel stated that the conclusion reached by the lower Court on the defence put forward by the Appellant was based on sentiments and emotions and that a Court of law is enjoined not to give prominence to sentiments in judicial deliberations and he referred to the case of Allison Vs Clever (2016) All FWLR (Pt. 855) 153. Counsel stated that the evidence of the Appellant was neither shaken nor contradicted by the Respondent and that the law is that in such a situation it meant that the Respondent accepted the truth of the facts as stated by the Appellant and he referred to the cases of Ighalo Vs State (2016) All FWLR (Pt 858) 617 and Shehu Vs State (2016) All FWLR (Pt 523) 1841. Counsel stated that the finding of the lower Court that the Appellant told lies did not amount to proof of guilt of the Appellant and he referred to

the cases of Bello Vs State (2013) All FWLR (Pt. 695) 395 and Geofrey Vs Federal Republic of Nigeria (2016) All FWLR (Pt. 857) 419.

Counsel berated the lower Court for the findings it made on the inconsistent cases put forward by the Appellant on the making of the confessional and stated that the findings were based on a misconception of the law and he referred to the cases of Adeoti Vs State supra, Jizurumba Vs State (1976) 10 NSCC 156 and Kasa Vs State (1994) 6 SCNJ (Pt. 1) 13. Counsel noted that there was evidence that the Appellant made an extra judicial statement at the Gumel Police Division and that the Respondent failed to tender the statement in evidence at the trial and stated that this was unfair to the Appellant and he referred to the cases of Wahab Vs State (2016) All FWLR (Pt 855) 42 and Ogudo Vs State (2012) All FWLR (Pt. 629) 1111. Counsel posited that had the extra judicial statement been tendered, it would have lent credence to the version of the story told by the Appellant. Counsel stated that entire evidence led by the Respondent was not credible and cogent enough to sustain the findings made by the lower Court and its conviction of the

Appellant for the offence of rape and that the findings and conviction were thus perverse and he referred to the cases of Babarinde Vs State (2013) All FWLR (Pt. 662) 1731 and Adekoya Vs State (2013) All FWLR (Pt. 662) 1632.

Counsel concluded his arguments by urging the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and the conviction of and sentence passed on the Appellant and to discharge and acquit the Appellant.

In his response, Counsel to the Respondent reiterated the principles on proof beyond reasonable doubt in criminal trials and the ingredients of the offence of rape that the Respondent had to prove to sustain its case against the Appellant and noted that the Respondent led vivid evidence of the incident of rape through the testimony of the victim, the first prosecution witness, and the extra judicial confessional statement of the Appellant which was admitted after a trial-within-trial. Counsel stated that the confessional statement alone which was direct and unequivocal was sufficient to convict the Appellant as it is the best evidence in criminal trials and he referred to the

cases of Adebayo Vs Attorney General of Ogun State (2008) 3 NCC 305, Adebayo Vs State (2014) LPELR 22988(SC), amongst others. Counsel stated that the account of the incidents of rape given by the Appellant in the confessional statement corroborated the testimony of the first prosecution witness on the incident and was a clear admission of the commission of the offence charged and that the lower Court was correct in convicting the Appellant and he referred to the case of Ezigbo Vs State (2012) 16 NWLR (Pt 1326) 318.

Counsel stated that the alleged inconsistency in the name mentioned by the endorsing officer on the confessional statement, Exhibit P1, Farida Yahaya, and the name of the first prosecution witness on the charge sheet and as stated in the lower Court, Farida Muktari, which Counsel to the Appellant harped upon, was a trifling inconsistency as it was not in dispute that the name of the victim is Farida and was thus not fatal to the case of the Respondent and he referred to the case of Archibong Vs State (2006) 14 NWLR (Pt. 1000) 394. Counsel stated that also the argument of Counsel to the Appellant on the failure of the Appellant to sign Exhibit P2, the English

version of his confessional statement was a non-starter as it is now firmly established that an accused person need not sign the translated version of his confessional statement for it to be valid and that the signature of the interpreter was sufficient and he referred to the case of State Vs Sa’idu (2019) LPELR 47397(SC).

Counsel stated that the argument of Counsel to the Appellant on the failure of the Respondent to call the maker of the medical report for cross examination was baseless as it is not the law that it is mandatory for a medical officer to be present in Court to testify at the trial and that the production of a certificate signed by a medical doctor by either of the parties may be taken as sufficient evidence of the facts contained therein. Counsel stated that the procedure adopted by the Respondent in invoking the provisions of Section 249(3) of the Criminal Procedure Code in tendering the medical report from the Bar was approved by the Supreme Court in Edoho Vs The State (2010) LPELR – SC.372/2007.

Counsel stated further that the argument of Counsel to the Appellant predicated on the failure to tender the extra judicial

statement made by the Appellant at the Divisional Police Station was misconceived as it was the prerogative of the Respondent to call the witnesses it considered relevant to its case. Counsel stated that once the Respondent discharged the burden of proof on it to prove the case against the Appellant beyond reasonable doubt, it mattered not which witness it did not call to testify and that it was not in the place of the Appellant to complain about the non-calling of the Investigating Police Officer at the Divisional Police Station to tender the statement made by the Appellant thereat and he referred to the case of Uzim Vs The State (2019) LPELR SC.877/2015.

Counsel concluded his arguments by urging the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court together with the conviction and sentence passed on the Appellant.

This is a criminal trial. It is settled 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. Where the commission of crime by a party is in issue in any proceedings, 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.
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 or proof of a mathematical certainty. 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 – Isah Vs State (2018) 8 NWLR (Pt 1621) 346, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1

The Appellant was charged with rape; he was alleged to have invited one Farida Muktari, aged ten years, into an uncompleted building and had sexual intercourse with her. The essential ingredients that the Respondent was under obligation to prove beyond reasonable doubt to sustain the charge against the Appellant were (i) that the Appellant had sexual intercourse with the victim; (ii) that the act of sexual intercourse was done without consent of the victim or that the consent, if any was obtained by fraud, force, threat intimidation, deceit or impersonation or that the victim was under the age of fourteen years, the law is that a girl under fourteen years cannot give consent; (iii) that the victim was not the wife of the Appellant; (iv) that the Appellant 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 – Julius Vs State (2019) LPELR 48491(CA), Enang Vs State (2019) LPELR 48682(CA), Idam Vs Federal Republic of Nigeria (2020) LPELR 49564(SC).

It is settled law that in criminal trials, the guilt of an

accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.

It is obvious from the records of appeal that the Respondent relied on the eye witness account of the victim, who testified as the first prosecution witness, the confessional statement of the Appellant and circumstantial evidence of father of the victim, the second prosecution witness, and of the Investigating Police Officer, the third prosecution witness, and the medical report of examination of the victim,

in proving the guilt of the Appellant. The Appellant in his defence denied the case of the Respondent; he denied knowing the victim; he denied raping the victim; he denied admitting the commission of the offence and stated that he was framed by one Muhammad Abdullahi.

The records of appeal show that the lower Court evaluated the evidence led by the parties and found that the evidence led by the victim, the first prosecution witness of the rape incident was clear, lucid, unequivocal and was not shaken or contradicted under cross examination, and that the evidence was corroborated by the voluntary confessional statement of the Appellant and further that the ingredient of penetration in the offence of rape was confirmed by the medical report of examination of the victim. The lower Court found that the story told by the Appellant in his defence was fanciful, inconsistent, contradictory, and was a bunch of lies and it rejected same. The lower Court found that the Respondent led credible and cogent evidence to prove the case against the Appellant and it convicted the Appellant accordingly.

The complaint of the Appellant in this appeal is against the

evaluation of evidence carried out by the lower Court. 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 context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt. 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt. 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt. 1630) 353.
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 – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt. 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt. 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289.
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable –Onu Vs Idu (2006) 12 NWLR

(Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt. 1270) 217, State Vs Sani (2018) 9 NWLR (Pt. 1624) 278. Therefore, an appellate Court will only 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 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 – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.

Counsel to the Appellant contended against the

evaluation of evidence carried out by the lower Court on four main grounds – (i) the inconsistency in and the unreliability of the evidence of the first prosecution witness; (ii) inconsistency in the confessional statement of the Appellant, Exhibits P1 and P2, and its contradiction of the particulars of offence charged; (iii) the reliance placed on the medical report, Exhibit P3; and (iv) the rejection of the case made out by the Appellant.

of the notes of evidence, like the content of any document, must be read in whole, and not in parts in isolation, to get a full picture of the story contained therein – Ogah Vs Ikpeazu (2017) 17 NWLR (Pt. 1594) 299, Peoples Democratic Party Vs Oranezi (2018) 7 NWLR (Pt. 1618) 245.

P2, by the Appellant, the Supreme Court, as rightly stated by the Counsel to the Respondent, has held that such non-signing of the translated version is insignificant, so long as it is signed by the interpreter. In State Vs Sa’idu (2019) 10 NWLR (Pt. 1680) 308, Okoro, JSC, made the point at page 321B-D thus:
“There is no doubt that Exhibit 8A, the main statement made in Hausa by the respondent was actually thumb printed by him. There is no quarrel about the statement. However, the grouse of the respondent is that the translated version was not signed by the respondent though signed by the translator… The respondent’s confessional statement, though retracted, was duly signed by him as made in Hausa which he understands. The translated version even if it was read over to him in English language would not have made any meaning to him as he would not have understood same. As far as the translator had signed the translated version, I hold that it does not make any difference that the accused did not sign it.”

On the issue of the inconsistency in the name, Farida Yahaya, written in the endorsement made on Exhibit P1 by the

Superior Police Officer and the name of the victim in the charge in Court, Farida Muktari, the Court has read through the records of appeal and noticed this issue was not raised or canvassed by the Appellant in the lower Court either in the course of trial or in the final written address of his Counsel and it was not pronounced upon by the lower Court. There is no evidence that the Appellant obtained the leave of the Court to raise the issue in this appeal. The issue so raised is thus incompetent – Shaibu Vs State (2017) 16 NWLR (Pt. 1592) 396, Ewugba Vs State (2018) 7 NWLR (Pt. 1618) 262, Saliu Vs State (2018) 10 NWLR (Pt. 1627) 251, Jibrin Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt. 1635) 20, Mohammed Vs Federal Republic of Nigeria (2018) 13 NWLR (Pt. 1636) 229, Osho Vs State (2018) 13 NWLR (Pt. 1637) 474.

Appellant to the tendering of the statement at the time it was tendered was not that he made the statement, but that it was done involuntarily. It was never his case that he made the statement, but that it was in respect of the rape of another person. The third prosecution witness was not asked a single question under cross-examination on whether Exhibit P1 was made in respect of another victim called Farida Yahaya, and not in respect of the victim in this case referred to as Farida Muktari. By not cross-examining the witness on the point, it meant that the Appellant accepted the truth of the evidence of the witness that Exhibit P1 was made in respect of the victim in this case – Esene Vs State (2017) 8 NWLR (Pt 1568) 337,Isah Vs State (2018) 8 NWLR (Pt. 1621) 346, Patrick Vs State (2018) 16 NWLR (Pt 1645) 263, Egba Vs State (2019) 15 NWLR (Pt 1695) 201.

This evidence was not challenged, contested, controverted or countermanded by the Appellant. It is settled law that a Court is obliged to treat unchallenged evidence on a material fact as true, cogent and credible and to act on it, unless the evidence is patently incredible – Olude Vs State (2018) LPELR 44070(SC), Lanre Vs State (2018) LPELR 45156(SC), Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227, Daniel Vs Ayala (2019) LPELR 49344(SC), Ifediora Vs Okafor (2019) LPELR 49518(SC). The assertion of the third prosecution witness thereon is definitely not incredible on the facts and circumstance of this case because the name of the father of the victim, the second prosecution witness, is, according to the records, Muktari Yahaya. Thus, the victim could very well be called Farida Muktari or Farida Yahaya. The second contention of the Appellant is also not well founded.

relied on it as the maker of the document was not called for cross-examination. The records of the lower Court show that Counsel to the Respondent placed reliance on the provisions of Section 249(3) of the Criminal Procedure Code in tendering the medical report from the Bar and Counsel to the Appellant raised no objection thereto. The records show that the medical report was admitted by the lower Court and it was read in open Court to the hearing of the Appellant.
Now, Section 249 (3) (a) (b) and (c) of the Criminal Procedure Code read that 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 and that 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. Further, that 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.
In interpreting these provisions, the Courts have held that though they say 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 disagrees with any statement in the medical report – Difa Vs The State (1977) NNLR 224, Danjuma Vs Kano State (2018) LPELR 44724(CA), Fulani M. Vs State (2018) LPELR 45195(SC). In other words, the medical doctor who authored a medical report did not need to attend Court to tender same for it to be admissible and relied upon, and it was only where the Appellant or his Counsel disagreed with the contents of the medical report after it was read in open Court that the lower Court was required, in the interest of justice, to order the attendance of the medical doctor – Adamu Vs Kano Native Authority (1956) FSC 29, Liman Vs State (1976) 7 SC (Reprint) 36.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now, there is nothing in the records showing that upon the reading of the medical report to the hearing of the Appellant, either he or his Counsel raised any objection or disagreed with any part of the report. The records show that the Appellant and/or his Counsel did not apply to the lower Court to order for the attendance of the medical doctor who authored the report for cross-examination. Rather, the records show that it was the Counsel to the Respondent who offered to bring the medical doctor to Court for cross examination and that when he was unable to produce the medical doctor on the next adjourned date because the doctor had an accident, he withdrew his offer and closed his case, and Counsel to the Appellant had no objection and did not protest the non-attendance of the medical doctor.
There was no basis, in these circumstances, for the trial Court to have ordered the medical doctor to attend Court to testify. The failure of the medical doctor to attend Court cannot, in these circumstances, affect the validity or the probative value of the medical report, Exhibit P3 – Edoho Vs State (2010) 14 NWLR (Pt. 1214) 651, Akpan Vs State (2014) LPELR

22741(CA), Usman Vs State (2018) LPELR 46568(CA). The reliance placed on the medical report by the lower Court was thus proper. The medical report established the ingredient of the penetration of the vagina of the victim. The third contention of Counsel to the Appellant is baseless.

With regards to the fourth contention against the rejection of the case put forward by the Appellant in his defence, Counsel stated that the decision of the lower Court was based on sentiments and emotions and that the finding of the lower Court that the Appellant told lies did not amount to proof of guilt of the Appellant and further that the evidence the Appellant was neither shaken nor contradicted by the Respondent and it ought to have been accepted by the lower Court. In rejecting the defence of the Appellant, the lower Court stated in the judgment thus:
“I have carefully reflected on the defence put forward by the accused as DW1, wherein he denied ever meeting or knowing the prosecutrix not talk of having carnal knowledge of her fanciful, inconsistent and contradictory and above all a bunch of lies and this is because the accused had in the course of his

defence denied ever making a statement to the police Exhibits P1 and P2. Earlier the accused raised the issue of involuntariness when his statement was sought to be tendered. My conclusion therefore is that the accused is not a witness of truth. This being so his evidence is accordingly rejected.”
Now, it is settled law that during trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan Vs State (2001) 15 NWLR (Pt 735) 184, Kazeem Vs State (2009) WRN 43 and Osetola Vs State (2012) 17 NWLR (Pt 1329) 251.
In other words, the accused defendant must show either (i) that he did not make the statement at all; that it was make-believe or (ii) that he made the statement, but that the making of the statement was involuntary. Where the accused defendant contends that he did not make the

statement, a trial Court will admit the statement and postpone the determination of its probative value to the stage of evaluation of evidence. Where the accused defendant contends involuntariness in the making of the statement, the trial Court will conduct a trial within trial at that stage to determine the issue of voluntariness, before admitting the statement if it finds it was made voluntarily – Onyenye Vs State (2012) LPELR 7866(SC), Ofordike Vs State (2019) LPELR 46411(SC), Usman Vs State (2019) 15 NWLR (Pt. 1696) 411, State Vs Ibrahim (2019) LPELR 47548(SC), Sale Vs State (2020) 1 NWLR (Pt. 1705) 205.
Thus, an accused defendant cannot rely on both situations in impeaching his extra judicial statement to the Police because they are mutually exclusive. Where an accused person puts forward both situations, as the Appellant did in the present case, his case will be inconsistent and contradictory. The law is settled that where a party puts forward a case consisting of two inconsistent and contradictory versions of evidence and he does not explain the inconsistency or contradiction, his case must be rejected by the Court – Popoola Vs State

(2018) 10 NWLR (Pt 1628) 485, Awosika Vs State (2018) LPELR 44351(SC), Nwankwoala Vs State (2018) 11 NWLR (Pt 1631) 397, Orisa Vs State (2018) 11 NWLR (Pt 1631) 453. The Appellant did not explain why he put up two mutually exclusive, inconsistent and contradictory stories in canvassing his defence. The lower Court was obligated in the circumstances to reject his defence. The fourth ground of contention of the Appellant against the findings of the lower Court is also baseless.

Again, Counsel canvassed arguments in respect of the evidence led by the third prosecution witness in the course of the trial-within-trial and the findings made by the lower Court in its Ruling in the trial-within-trial, but the Appellant filed no appeal against the said Ruling either at the time it was delivered or as part of the appeal against the final judgment.

Further, Counsel canvassed some incomprehensible arguments regarding some of the entries made on the medical report, Exhibit P3, but the entries had nothing to do the material part of the report containing the result of the examination of the vagina of the victim. Thus, even if there were some discrepancies in those entries, they were minor discrepancies that did not relate to the substance of the report and could thus not be fatal to its validity – Uche Vs State (2015) 11 NWLR (Pt1470) 380 and Shaibu Vs State (2017) 16 NWLR (Pt 1592) 396 at 420-421.

Counsel to the Appellant obviously forgot that the proper stage for discrediting the case of the Respondent and the prosecution witnesses is not in the address of counsel or the brief of argument on appeal but is down the line at the trial Court

during cross-examination and possibly a countering evidence to debunk whatever the prosecution witnesses had placed in evidence, but certainly not on appeal, as Counsel sought to do – Balogun Vs Attorney General, Ogun State (2002) 6 NWLR (Pt. 763) 512, Okoro Vs State (2012) 1 SC (Pt. 1) 54, Anyasodor Vs State (2018) 8 NWLR (Pt 1620) 107.

The Respondent led lucid and unchallenged evidence in the testimony of the victim, the first prosecution witness, who gave a detailed account of her rape incident by the Appellant. The testimony of the witness was corroborated by a direct and unequivocal confessional statement of the Appellant. It is correct that the Appellant challenged the voluntariness of the confessional statement and consequent on which the lower Court conducted a trial-within-trial and it delivered a Ruling wherein it found that the Appellant made the statement voluntarily. The Appellant did not contest the Ruling and it is trite law that if a confessional statement is admitted after a trial-within-trial, an accused person cannot argue that he did not make the confession voluntarily without first impugning the trial-within-trial –

Bouwor Vs State (2016) 4 NWLR (Pt 1502) 295, Lalapu Vs Commissioner of Police (2019) 16 NWLR (Pt 1699) 476, Sale Vs State (2020) 1 NWLR (Pt 1705) 205.

The statement of the first prosecution witness was also corroborated by the medical report, Exhibit P3, which was tendered without objection and read out in open Court without the Appellant or his Counsel disagreeing with the contents or requesting for the attendance of the medical doctor who authored it. The medical report confirmed the rupture of the hymen of the victim and confirmed penetration. The tests of testimonial value in determining whether the required degree of proof has been produced are credibility, intelligence, freedom from bias, or prejudices, opportunity to be informed, disposition to tell the truth or otherwise and probability or improbability of the evidence being true. The case of the Respondent met all these values and it deserved the credibility and cogency accorded it by the lower Court.

By Section 168(1) of the Evidence Act, a judgment appealed against enjoys presumption of regularity which is rebuttable. Once the appellant fails to satisfactorily establish the error in the judgment

appealed against, the respondent is entitled to a judgment affirming the judgment – Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. In Oyedele Vs State (2019) 6 NWLR (Pt 1667) 74, the Supreme Court made the point thus:
‘There is a presumption that, on facts, the decision of a trial Court is right and that for the appellant to succeed, he must displace the findings of fact against him. Once an appellate Court finds nothing perverse or capable of occasioning miscarriage of justice to the appellant in the judgment of the trial Court on facts, it has nothing else to do than to affirm the judgment.’
The Appellant in this appeal failed to dislodge the finding of facts made against him by the lower Court and has not shown any miscarriage of justice he suffered in the judgment. This appeal must thus fail.

In conclusion, this Court finds no merit in the appeal. The appeal is hereby dismissed and the judgment of the High Court of Jigawa State delivered in Case No JDU/25C/2016 by Honorable Justice Ado Yusuf Birni Kudu on the 14th of February, 2019 and conviction of and the sentence passed on the Appellant therein are

affirmed. These shall be the orders of this Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Abiru JCA just delivered to which I entirely concur with. This appeal has no merit and I dismiss it. I affirm the Judgment of the trial Court.

AMINA AUDI WAMBAI, J.C.A.: I was privileged to read before now, the lead judgment delivered by my learned brother, HABEEB ADEWALE OLUMIYIWA ABIRU, JCA. His Lordship has considered and resolved the sole issue in this appeal.

I agree with the reasoning and conclusion that there is no merit in the appeal. I too dismiss the appeal and affirm the judgment of the lower Court including the conviction and sentence passed on the Appellant.

Appearances:

M. Kashim with him, T. T. Linah For Appellant(s)

Aliyu Abdullahi, ADCL with him, M. I. Abubakar, CSC, MoJ Jigawa For Respondent(s)