MUSA NATSAHA v. THE STATE (2013)

MUSA NATSAHA v. THE STATE

(2013)LCN/5833(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 8th day of January, 2013

CA/K/149C/2012

RATIO

EVIDENCE: THE RULE OF INCONSISTENCY

As rightly held by the learned trial judge, the rule of inconsistency was formulated for the resolution of conflict between the evidence (given in court) and the previous statement of a witness. In the celebrated case of R. V. GOLDER (1960) 1 WLR 1169, the testimony of a persecution witness which was inconsistent with her previous statement was held and treated as unreliable while the statement (not being on Oath) was regarded to be not evidence on which the court could act. I agree entirely with the learned trial judge that the rule of inconsistency is inapplicable to this case since the bone of contention by the appellant relates to the examination – in – chief and cross – examination. Inconsistency rule refers to a previous statement of a witness and his sworn evidence before the court. This English principle was adopted in Nigeria in the case of QUEEN V. UKPONG (1961) 1 ALL NLR 25. PER AHMAD OLAREWAJU BELGORE, J.C.A.

EVIDENCE: PURPOSE OF THE RULE OF INCONSISTENCY

“….when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury would not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.”

This English case was followed by the Supreme Court in R. V. UKPONG (1961) ALL NLR 25 and in AIYEOLA V. THE STATE (1971) U. I. L. R 384. In LAYINU V. THE STATE (1967) 1 ALL NLR 198 there were two prosecution witnesses and they had previously made certain statements to the Police. The defence counsel wanted to see those statements and the trial judge refused that on the ground that the defence must allege a discrepancy between the statement to the Police and the sworn testimony before the prosecution could be ordered to produce it. On appeal to the Supreme Court of Nigeria, it was held that the ruling of the trial judge requiring the defence counsel to allege discrepancy between a statement which he had not seen and the witness’s sworn testimony amounted to requiring impossible. PER AHMAD OLAREWAJU BELGORE, J.C.A.

EVIDENCE: THE CONCEPT OF NON EST FACTUM

Non est factum means, “It is not his deed.” That is a denial of the execution of an instrument. Non est factum can be general, special or verified. A general non est factum is a broad, nonspecific denial that an instrument was executed or executed improperly. Special non est factum refers to a pleading that specifies ground on which an instrument’s execution is invalid or nonbinding. This is also referred to as particular non est factum, Verified non est factum, on the other hand, is a sworn denial that puts the validity of the instrument as well as the signature on it in question. PER AHMAD OLAREWAJU BELGORE, J.C.A.

EVIDENCE: CIRCUMSTANCES WHERE CORROBORATION IS REQUIRED AND NOT REQUIRED

CRIMINAL LAW: PRINCIPLE GUIDING THE DEFENCE OF ALIBI

The learned trial judge was right when he correctly stated the position of the law on the defence of alibi. He state thus –

“The general principle is that the accused must present his alibi at the earliest time and once he has given full particulars of the alibi, the prosecution must investigate it to confirm it or disprove it. Failure to investigate when faced with full facts of the alibi will vitiate the prosecution. See the case of IKEMSEM V. STATE (1989) 3 NWLR (Pt.110) 455 and the case of SALAMI V. STATE (1938) 3 NWLR (Pt.85) 670. The alibi to be unequivocal must be complete as to the time, the place and possibly those people at the place who could help investigation. The onus to raise alibi is on the accused the onus then shifts to the prosecution to investigate its veracity or otherwise. See the case of ADEDEJI V. STATE (1971) ALL NLR 75 AT 79. However this defence must be raised at the earliest possible time i.e. at the investigation stage of the case. This is normally by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the Police. See the case of ADIO V. STATE (1986) 2 NWLR 714.” PER AHMAD OLAREWAJU BELGORE, J.C.A.

JUSTICES

AMINU SANUSI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

Between

MUSA NATSAHA Appellant(s)

AND

THE STATE Respondent(s)

AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before Kano State High Court of Justice, presided over by Aisha R. D. Muhammad, J., on a one – count charge of rape which reads thus –
That you Musa Natsaha male, adult of Rogo town, Kano within Kano judicial Division on or about the 16th of July, 2007 at about 0800 hrs at Bakin Kasuwa, Rogo committed the offence of rape by an act to wit; you lured one Surrayya Muntari, a girl of 3 years into a shop by giving her bean cake (Kosai) and forcefully had sexual intercourse with her and you thereby committed an offence punishable under section 283 of the Penal Code.

Evidence was led by both the prosecution and the defence. The prosecution called three witnesses: PW1 is the prosecutrix herself; PW2 is the father of the victim (PW1); and PW3 is corporal Faruk, the investigation police officer (IPO). Three exhibits were tendered for the prosecution through PW3, viz: Exhibit A, the extra – judicial statement made by the accused person (Hereafter referred to as “The Appellant”); Exhibit B, is the hospital card issued in the name of prosecutrix; and Exhibit C is the medical report issued by the hospital after examining the victim. All the exhibits were tendered and admitted in evidence without objection. The appellant testified in his defence as DW1 but did not call any other witness. After the close of the case for the defence, parties filed and exchanged written addresses which were respectively adopted. In a considered judgment delivered on the 30th day of March, 2012, the learned trial judge after examining all the ingredients of the offence of rape concluded in these terms –
“On the totality of the evidence adduced by the prosecution, I find the prosecution has proved the offence of rape under S.283 of the Penal Code beyond reasonable doubt against the accused person. I so hold”.
The Lower Court convicted the appellant and sentenced him to a ten – year term of imprisonment with hard labour.

The appellant has appealed to this court vide a notice of appeal containing 19 grounds of appeal. Apart from the 19th ground which is an omnibus ground, each ground of appeal consists of an extensive quotation from the judgment appeal from and each of them has particulars ranging from 3 to 9. It will amount to a waste of time to embark on their reproduction in this judgment.

Before this Court parties have filed, exchanged and adopted their briefs of argument. While the appellant has urged that his conviction be set aside and that he be discharged and acquitted, the Respondent has prayed the court to affirm the conviction and sentence.

In the appellants brief of argument, settled by Nureini Jimoh Esq., two issues have been distilled from the 19 grounds of appeal, namely –
1. Whether the learned trial judge rightfully found that the prosecution has proved her case against the accused person beyond reasonable doubt and thereby properly convicted and sentenced the accused in the circumstances of the fact of this case? Grounds 1, 2, 3, 4, 9, 10, 11, 12, 13, 15, 18 and 19
2. Whether in the circumstances of Exhibit A, the Learned Trial Judge rightfully considered and rejected the defence or case of the accused person? Grounds 5, 6, 7, 8, 14, 16 and 17.
In the respondent’s brief of argument, settled by Maliki Kuliya Umar, Esq., Learned Attorney General of Kano State, the two issues formulated by the appellant have been adopted by the respondent as the issues arising for determination in this appeal.

ISSUE ONE
It is submitted by Nureini Jimoh Esq., learned counsel for the appellant, that the ingredients of the offence of rape were not proved by the prosecution at the trial. It is also submitted that there is inconsistency in the evidence of the prosecutrix (PW1) as to what the appellant had inserted into her vagina, whether it was his finger or his penis. It is submitted that this is a fundamental contradiction or doubt in the evidence of the victim which should have been resolved in favour of the appellant. Reliance is placed on ARCHIBONG V. THE STATE 2 NCC. It is further submitted that upon the arrest of the appellant it was alleged that his trouser was retrieved from the scene of the crime, the PW3 should have delivered the trouser retrieved from the scene of crime on which fresh sperm was found to PW4 and that failure to deliver the trouser to pw4 was fatal to the case of the prosecution. It is submitted that the evidence of PW4 did not link the appellant to the crime allegedly committed by him.
It is submitted for the appellant that the PW1, being a minor, her evidence must be corroborated, citing BELGORE, JSC (as he then was) in JEGEDE V. THE STATE (2001) 14 NWLR (Pt. 733) 264, 274 – 275. THE QUEEN V. FRANCIS KURFI (1960) NNLR 1 was also cited. It is submitted that the totality of the evidence of PW1 never “clearly shows that there was penetration”. It is submitted for the appellant that the learned trial judge wrongly relied on the
(i) PW2’s evidence at page 55 of the record
(ii) Exhibit A at page 56 – 57
(iii) Exhibits B and C at page 61, 63
(iv) PW2 & PW3’s evidence at pages 60 – 70. It is submitted that it is wrong to have relied on these pieces of evidence as corroborating the evidence of the prosecutrix. It is submitted that PW2, being the father of the prosecutrix, his evidence is tainted. His evidence is said not to be direct but hearsay. Reliance is placed on DICKSON MOSES V. THE STATE 2 NCC R5 & 6; YAHAYA V. THE STATE 1 NCC 122 R2 – 4; and OLABODE V. THE STATE 2 NCC 715 R9 in submitting that the learned trial judge’s findings are perverse as there was no probative appraisal of the oral testimony of the witnesses and ascription of proper value. STATE V. AIBANGBE 2 NCC R1, 2 & 8; and NDIDI V. THE STATE 2 NCC 601 R5 are also cited.

It is submitted that the fundamental right of the appellant has been infringed because his statement was not recorded in his language, hence the plea of non est factum by his learned counsel and did not object to the admissibility of the statement. Reference is made to section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as “THE CONSTITUTION”). It is submitted that failure to object to the admissibility of the statement, Exhibit A, is not fatal, where it was challenged as having not been made at all or in the manner represented by the prosecution. It is submitted that this is a matter that should be decided at the conclusion of the trial, citing YAHAYA V. STATE 1 NCC 122, 133 – 134. It is the submission of learned counsel for the appellant that Exhibit A is not a confessional statement since it was not recorded in the appellant’s language. It is submitted that it is not true statement of the appellant and it does not tally with the story presented by the prosecution, and that Exhibit C never confirmed rape but an impression of rape. With regard to the sentence, it is submitted that the learned trial judge ought to have been guided by some factors, such as taking into account the fact of the appellant being a first offender; his character; family background and or his nature, in order to reduce the sentence imposed. It is also submitted that an appellate court can rightly, where the end of justice will be properly met, reduce the sentence imposed by the trial court. Reference is made to I.G.P. V. AKANO (1957) WRNTR 103; OGIDI V. C.O.P. (1960) 5 FSC 251/256 – 257; OSAYEMO V. STATE (1966) NMLR 388, 389 and CHUKWUEKE V. STATE (1991) 7 NWLR (Pt.205) 604, 624;

It is submitted that the imposition of a term of imprisonment “with hard labour” is one of the colonial vestiges and an anachronism that continues to thrive in our legal practice after it has been abolished in the United Kingdom since 1948, It is submitted that any form of imprisonment other than those set out in the law is not in consonance with the Penal Code and that this is similar to the wrongful imposition of suspended sentence which is unknown to the Penal Code as stated in THE STATE V. HASSAN AUDU (1972) 7 NSCC 436, 437; R. V. RIEDELS (1923) 4 NLR 104; QUEEN v. EYO (1962), ALL NLR 515, 528 – 9; ADEYEYE V. THE STATE (1963) ALL NLR 239, 241. The court is urged to investigate the sentence imposed by the trial court and to set aside its conviction and sentence.

ISSUE TWO
It is submitted for the Appellant that the prosecution failed to tender the true statement of the appellant and that the prosecution failed to cross – examine the accused on whether he raised the plea of alibi when he was giving his statement to the Police. It is stated by learned counsel for the appellant that instead of the learned trial judge considering the Constitutional lapse of the PW3 not recording the appellant’s statement in the language he understood, the learned trial judge rather put the onus of proof of alibi on the appellant. It is submitted that the learned trial judge was wrong in putting the onus of proof of the defence of alibi on the appellant, citing in support –
SEGUN BALOGUN V. A – G OF OGUN STATE 9 NSC QR 287, 301 – 302; SALE DAGAYYA V. THE STATE (2005) 1 NCC 532, 542 – 543. It is submitted that the onus lies with the prosecution to prove its case beyond reasonable doubt that the accused person was really at the scene of crime and that he committed the offence for which he was charged, citing EZEKIEL ADEKUNLE V. THE STATE (1989) 12 SCNJ 184, 199; HEMYO NTAM & ANOR v. THE STATE (1967) NSCC 1, 2; SALE DAGAYYA V. THE STATE 25 NSCQR 775, 800 – 807; OKON UDOH AKPAN V. THE STATE (1991) 5 SCNJ 1, 5; WASARI UMANI V. THE STATE (1988) 2 SC (Pt.1) 98, 121 – 122; ABUBAKAR IBRAHIM v. THE STATE (1991) 5 SCNJ 129, 135 – 136; DANLAMI OZAKI & ANOR V. THE STATE (1990) 1 SCNJ 76, 101 – 102; IKON & ANOR V. THE STATE (1993) 5 SC 231, 255 – 256; and OYEWUNMI ADEDEJI V. THE STATE (1971) 1 ALL NLR 75. It is further submitted that if the onus to prove alibi shifts to the accused, it is sufficient if the accused proves on the balance of probability as held by the Supreme Court in SUNDAY MADAGAWA V. THE STATE (1988) 5 NWLR (Pt.92) 60, 86.

It is finally submitted that failure to record the statement of the appellant in his constitutionally guaranteed language is fatal and the doubt whether he raised the defence of alibi early enough is in his favour.

It is urged that both the conviction and the sentence be set aside.

In arguing ISSUE ONE. Maliki Kuliya Umar Esq., THE LEARNED Attorney – General, Kano, submitted that even a cursory look at the case of IDRIS RABIU V. THE STATE (2005) 1 NCC cited by the learned counsel for the appellant and section 282 of the Penal Code will show that the prosecution has no duty to prove that the accused has removed his cloths in order to sustain a charge of rape as this does not form part of the ingredients required to be proved. The legal requirement is penetration however slight and that would suffice. Reliance is placed on POSU V. THE STATE (2011) 2 NWLR (Pt.1234) 393. It is submitted that the issue of the prosecutrix not knowing the difference between finger and penis as raised by the appellant is of no moment since it did not detract from the fact that the appellant had sexual intercourse with her. It is further submitted that the prosecutrix did maintain and state viva voce on oath in unequivocal terms that the appellant put his penis into her vagina and there was abundant evidence that there was penetration. It is submitted that the cross examination did not weaken or impair the flawless evidence given by PW1 during the examination – in – chief, referring to where the prosecutrix stated that –
“Then he put his penis inside my vagina”. It is also submitted that what was not clear became clearer during the re – examination when she stated emphatically that – “He inserted his penis into my vagina not his finger.”

It is submitted that in view of the foregoing, the learned trial judge was right when he held that –
“And in spite of the rigorous cross-examination and attempt to confuse her by the defence, her evidence was direct, credible and of probative value. PW1 was categorical that the accused inserted his penis into her vagina and she felt pain and therefore cried all the way to her house.”
It is further submitted that the learned trial judge was right in finding that there was penetration, and that the charge against the learned trial judge that she had bridged the gap in the prosecution case is totally unfounded. It is also submitted that the trouser recovered from the appellant’s shop (the scene of crime) has no bearing with the ingredients of the offence at hand. An analogy was then drawn from the case of OLAYINKA V, STATE (2007) 9 NWLR (Pt.1040) 423, 437 – 438 where the Supreme Court held that –
“I don’t think there is any principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of an accused person.”

With regard to the submission for the appellant that PW2, being the father of the victim, is a tainted witness, learned Attorney – General submitted that there is nothing precluding a blood relation from giving evidence in a criminal prosecution. Reliance is placed on NKEBESI V. STATE (2010) 5 NWLR (Pt.1188) 471, 484

As to the appellant’s complaint against instantaneous translation of the statement given by the appellant in Hausa language to English language and that the contention that section 36(6) of the Constitution has been breached, it is submitted for the respondent that since the appellant did not object to the admission of the statement, he cannot now raise it without the leave of the Court.
On the issue of corroboration, it is submitted that the fact that PW2 saw the prosecutrix crying when she came back is enough corroborative evidence as held by the Court of Appeal in England faced with an almost similar situation in the case of R. V. REDPATH (1962) CR. APP. R. 319. Reliance is also placed on the Indian case of STATE OF GUJRAT V. HIRJIBHAI (1983) A.LR. (S.C.) 753; the case of OGUNBAYO V. STATE (2007) 1 NWLR (Pt.1035) 157 and HABIBU MUSA V. STATE (2012) 3 NWLR (Pt.1286) 59. It is submitted that the learned trial judge was right in holding that the evidence of PW2, Exhibits A, B and C stand as corroborative evidence of the evidence of PW1 that the appellant committed the offence for which he was charged.

As to the issue of the confessional statement, it is submitted that findings of the trial court to the effect that the statement was possible as it is consistent with ascertained facts in the case are justified and not perverse as contended by the appellant. It is also submitted that the fact that the statement was recorded in English Language is not enough to impeach it, and that the appellant needs to go further and show that the person who recorded it does not properly understand the two Languages: Hausa and English. It is submitted that the suggestion by the appellant that the prosecutrix gave a story different from Exhibit A is untrue because Exhibit A is almost word for word with the evidence of PW1. It is submitted that the suggestion is utterly unsustainable because Exhibit A even though terse, is right to the point as the appellant did not dilly – dally but went straight to confess the offence of rape.

Regarding the issue of sentence alluded to by the appellant in his brief it is submitted for the respondent that mitigation of sentence should have been made an issue in the appeal and that it cannot be urged without an issue having been formulated for it.
It is urged that it be held that the learned trial judge rightly held that the prosecution has proved its case against the appellant beyond reasonable doubt.

ISSUE TWO
It is submitted that the confessional statement, Exhibit A, was not denied by the appellant and a bare statement that he did not make it, without more, is bereft of any supporting facts. It was admitted without objection and the trial court can act upon it. Reference is made to OSENI v. STATE (2012) 5 NWLR (Pt.1293) 351, 373; and SULE v. STATE (2009) 17 NWLR (Pt.1169) 33, 60-61.

Attention has been drawn to the remarks in the appellant’s brief of argument on the issue of alibi, where it was submitted that the appellant was arrested along with 8 others co – workers. It is submitted for the respondent that this is not borne out by the record and that the assertion is misplaced. It is submitted that the appellant did not supply the names and particulars of the so called 8 witnesses of alibi and consequently, the duty to investigate the alibi did not arise.

It is finally submitted that there is nothing to be urged in favour of the appellant and it is urged that the two issues be resolved against him. It is then urged that the appeal be dismissed and that the conviction and sentence of the appellant be affirmed for the offence of rape.

As there is no reply on point of law, I will take the issues as argued by the parties.

ISSUE ONE
The issue was raised in the trial court by the appellant that there was inconsistency in the evidence of the prosecutrix as to whether it was finger or penis that was inserted into her vagina. What was argued before the learned trial judge and upon which he pronounced was the issue of inconsistency rule. As rightly held by the learned trial judge, the rule of inconsistency was formulated for the resolution of conflict between the evidence (given in court) and the previous statement of a witness. In the celebrated case of R. V. GOLDER (1960) 1 WLR 1169, the testimony of a persecution witness which was inconsistent with her previous statement was held and treated as unreliable while the statement (not being on Oath) was regarded to be not evidence on which the court could act. I agree entirely with the learned trial judge that the rule of inconsistency is inapplicable to this case since the bone of contention by the appellant relates to the examination – in – chief and cross – examination. Inconsistency rule refers to a previous statement of a witness and his sworn evidence before the court. This English principle was adopted in Nigeria in the case of QUEEN V. UKPONG (1961) 1 ALL NLR 25.

In her examination – in – chief, PW1 stated thus –
“Then after I ate the bean cake, the accused then remove my clothes and pant. Then he laid me down and lay on top of me. Then he put his penis inside my vagina. I was crying as I left pains so after he left me…”
Under cross – examination, she had this to say –
“When he laid down on me, he might have put his finger into my vagina or his penis. I don’t know the difference between his finger and his penis.”
When re-examined, she said –
“He inserted his penis not his finger.”
It was whether the appellant had inserted his penis or finger that the learned counsel for the appellant referred to before the trial court as inconsistency. With all respect, this is clearly a misconception on the part of the learned counsel. This so because inconsistency rule relates ONLY to the evidence of a witness in court which contradicts or is inconsistent with his previous statement whether sworn or otherwise. It has nothing to do with examination in chief and cross – examination. The cases on inconsistency rule are very clear on this.

The purpose of the rule is to impeach and disparage a witness in order for the court to see him as being an unreliable witness. In R. v. GOLDER (1960) 1 W.L.R. 1169 (a) 1172 a witness said before the committing magistrate that Golder had given her a gold watch; at the trial, the witness denied that Golder was the man who gave her the watch. On a direction by the Deputy Chairman of the Quarter Sessions that the jury might consider whether they thought the witness’s evidence on her disposition was the true version of her story, the jury convicted, but on appeal the conviction was quashed and Lord Parker, C.J. said:
“….when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury would not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.”

From the foregoing, it is crystal clear that inconsistency rule relates only to the previous statement of a witness and his evidence on trial. It has nothing to do with the evidence of a witness in court whether during examination – in – chief or cross – examination. To this end, the learned trial judge was on firm footing and he rightly rejected the submissions as to inconsistency in the evidence of the prosecutrix.

In the instant appeal, the appellant has changed style by contending that there is discrepancy in the evidence of the prosecutrix. That was not his case before the trial court and he cannot be allowed to set up before this court, a case different from the one he fought before the trial court. After all an appeal is a continuation of the case fought at the trial court. The learned trial judge has decided on what was before him and since the issue of discrepancy in evidence was not raised before him, it will be wrong to hold that he was wrong on appeal.

In case I am wrong on this point, I hold that there is no discrepancy in the evidence of the prosecutrix. What the appellant now contends to be discrepancy or conflict has been cleared under re – examination when the prosecutrix categorically affirmed her testimony during examination- in- chief that –
“He inserted his penis into my vagina not his finger.”
That piece of evidence under the re-examination puts PAID to the issue of discrepancy or conflict in the evidence of the prosecutrix and I so hold.

On the issue of the statement, Exhibit A, it is the contention of the appellant that he did not make the statement because learned counsel for him had raised the defence of non est factum when the statement was being tendered in evidence. It is true that learned counsel for the appellant after conferring with his client stated thus –
“We plead non est fadum. I do not oppose the admission of the statement into evidence.”

Thereafter, the statement was admitted in evidence and marked as Exhibit A. The appellant did not say anything in efaboration of his plea of non est factum. In effect, Exhibit A was admitted in evidence without objection.

The plea of non est factum made by learned counsel for the appellant cannot be placed under any of the characterization listed hereabove. If it is characterised as general, then, nothing has been pleaded and no one is ever required to defend the unknown. Learned counsel did not offer an explanation when he pleaded non est factum to enable both the prosecution and the trial court know what the defence was up to. It looks like an attempt to spring a surprise. When the appellant gave evidence on oath, he did not deny making Exhibit A. All he said on his statement was that the Police took his statement and when confronted by his counsel with Exhibit A, he said –
“I only know the Arabic alphabets. I cant read the English letters in Exhibit A.”
The appellant did not deny Exhibit A as his statement taken by the Police. He cannot read the ‘English letters’ in the exhibit but he “knows” the Arabic alphabets. This has not contradicted the evidence of pw3 who testified to the effect that the appellant signed Exhibit A by writing his name in Arabic. There is nothing in the testimony of the appellant suggestive of the plea of non est factum. This plea is the making of the learned appellant’s counsel in respect of which the appellant was either not previously or not properly tutored. The appellant and his counsel are certainly not at ad idem on the plea if non est factum because the appellant was completely silent about it throughout his testimony in the dock. It is the learned counsel who has laboured seriously to convince us of the relevancy of the legal idiom in respect of this case. The appellant admitted making statement to the Police but his counsel insisted that his client denied making or signing any statement at the police station. Since the submission of counsel is not evidence, I hold that the appellant made a statement to the police and since he identified the “Arabic alphabets” which PW3 said he had inscribed, I believe that the statement is none other than Exhibit A. The appellants identification of the Arabic alphabets lends credence to the evidence of PW3 on the issue.

On the issue of the learned trial judge bridging the gap in the prosecution’s case, I make bold to state that if any one, in this case, bridges the gap in prosecution’s case, if dry, it is the learned counsel for the appellant. The appellant gave evidence that he returned from the farm and that it was at his home that he was arrested. His learned counsel, on the other hand, at pages 5, 16 and 19 to 20 of the appellant’s brief of argument, stated severally that his client was arrested at the farm “along with 8 of his coworker.” This was stated at page 16 of his brief with emphasis. If the submission of counsel were to be taken as evidence, then, one would be right to say that his evidence supports that of PW3 and Exhibit A on the issue of where the appellant was arrested.

What has happened in this case is that the appellant has resiled from his statement to the Police but this has not been neatly done. While the appellant is saying one thing, this counsel is saying another. There is no agreement among them as to what story to place before the trial court.

From the totality of the evidence adduced before the trial court, there is no doubt whatsoever that Exhibit A is the statement made by the appellant at the Police Station, and I so hold.

Another dimension to Exhibit A is the claim by the appellant that there is a breach of section 36(b) of the Constitution, in that the appellant gave his statement in Hausa language and it was recorded in English Language by simultaneous translation. I do not see anything wrong with that procedure unless it can be shown that PW3 who recorded the statement in English does not understand any, or either of the two languages either properly or at all to enable him embark on simultaneous translation from Hausa to English. The person to show this is the appellant but no effort was made at showing it. In the circumstance that line of defence fails.

Now, on the issue of corroboration, it is true that section 179(5) of the Evidence Act, No. 61, 1991 requires corroboration of the testimony of one witness in respect of sexual offence, the Supreme Court in OGUNBAYO V. THE STATE (2007) 1 NWLR (Pt.1035) 157, cited by learned counsel for the appellant, held that a sworn evidence of a minor requires no corroboration. But, apart from that, the learned trial judge was right when she held that Exhibits A, B and C are corroborative evidence of the testimony of PW1 on the issue of penetration, especially Exhibit A and C. Learned counsel for the appellant has submitted that Exhibit C gives no evidence of penetration. I do not think he is serious about it. The report states that –
“An impression of rape was ascertained,”
This is certainly an indication of penetration since the same report states that digital examination of the vagina revealed “permeable hymen.”
In his evidence in court, the appellant alleged that he had given a sum of N6,000.00 to the Police so that he could be released. such evidence is relevant because in the case of THE QUEEN V. FRANCIS KURFI (1960) NNLR 1, cited by learned counsel for the appellant; it was held that the evidence of the father of a 10 year old girl that the accused confessed the offence to him and even gave him a promissory note of E20 was corroborative evidence. The evidence of the appellant that he gave N6,000.00 to the Police so that they could release him is a corroborative evidence of PW1 that he, indeed, committed the offence of rape against PW1 and I so hold.

I hold that the learned trial judge rightly found that the prosecution has proved its case beyond reasonable doubt. ISSUE ONE is resolved against the appellant.

ISSUE TWO
Impression is given as if the learned trial judge has held that when a defence of alibi is raised, the accused must prove it. The learned trial judge was right when he correctly stated the position of the law on the defence of alibi. He state thus –
“The general principle is that the accused must present his alibi at the earliest time and once he has given full particulars of the alibi, the prosecution must investigate it to confirm it or disprove it. Failure to investigate when faced with full facts of the alibi will vitiate the prosecution. See the case of IKEMSEM V. STATE (1989) 3 NWLR (Pt.110) 455 and the case of SALAMI V. STATE (1938) 3 NWLR (Pt.85) 670. The alibi to be unequivocal must be complete as to the time, the place and possibly those people at the place who could help investigation. The onus to raise alibi is on the accused the onus then shifts to the prosecution to investigate its veracity or otherwise. See the case of ADEDEJI V. STATE (1971) ALL NLR 75 AT 79. However this defence must be raised at the earliest possible time i.e. at the investigation stage of the case. This is normally by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the Police. See the case of ADIO V. STATE (1986) 2 NWLR 714.”

In the instant case, the appellant did not raise the defence of alibi until he was testifying at trial of this case. It was this situation that made the learned trial judge to state that since the defence of alibi was not raised until during his examination – in – chief, the appellant has the duty to prove it, citing in support the case of YANOR & ORS V. THE STATE (1965) NWLR 337. It is strange that the appellant did not call any of the 8 people he alleged to be with at the farm. I agree with the learned trial judge in the circumstance that it is just not enough for the appellant to say he was in the farm with 8 people without calling any one of them to testify for him, not even Maikudi he allegedly gave his share of the money they made to take to his parents. I also agree that the appellant was only raising the defence of alibi as an afterthought.

This issue is also resolved against the appellant.

All the issues having been resolved against the appellant, this appeal fails and it is accordingly hereby dismissed.

AMIRU SANUSI, J.C.A.: I had the advantage of reading in draft form the judgment just delivered by my learned brother Belgore JCA. His lordship had adequately addressed all the salient issues raised by learned counsel to the parties in this appeal. I entirely agree with the reasoning and conclusion arrived at in the lead judgment that the appeal is devoid of any merit. I too accordingly dismiss it. I confirm the conviction and sentence passed on the appellant. I have nothing more to add.

ABDU ABOKI, J.C.A.: The judgment prepared by my learned brother AHAMAD O. BELGORE JCA, was made available to me earlier than now. Having perused same, I completely agree with his conclusion that the appeal lacks merit and deserves to be dismissed. I also dismiss same.

Appearances

Nureini Jimoh with H. Suleiman and S. U. Hassan for the Appellant.For Appellant

AND

Maliki Kuliya Umar Esq., Attorney Gen. Kano State (with D. Y. Dada DPP and S. H. Danjidda PSC)For Respondent