NNEOYI ITAM ENANG v. THE STATE
(2019)LCN/13812(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of October, 2019
CA/C/231C/2018
RATIO
EVIDENCE: WHEN A DOCUMENT IS WRONGLY ADMITTED IN EVIDENCE BY A COURT, WHETHER THE COURT HAD POWER AND JURISDICTION TO EXPUNGE IT
Where a document is wrongly admitted in evidence by a Court, the same Court has the power and jurisdiction to expunge it at the judgment stage since it can only base its judgment on legally admissible evidence and documents. In other words, the Court after admitting a document as evidence may at the conclusion of the trial expunge same if it turns out that the said evidence was wrong by received. See NWAOGU V ATUMA (2013) 17 NWLR (prt 1364) 117. The issue in contention here is whether Exhibits p1 and p4 are ultra vires the provisions of Section 17 (1) (4) and (5) of the Administration of Criminal Justice of Cross River State, 2006, same not been recorded in the presence of legal practitioner of the appellants choice.
CONFESSIONAL STATEMENT: FAILURE TO RECORD SUCH STATEMENT IN THE PRESENCE OF THE ACCUSED’S LEGAL PRACTITIONER
I have painstakingly examined the decisions of this Court in JOSEPH ZHIYA V THE PEOPLE OF LAGOS STATE (2016) LPELR ? 40562, CHARLES V F.R.N (2018) 13 NWLR (prt 1635) 50 and NNAJIOFOR V F.R.N. (2019) 2 NWLR (prt 1655) 157 as regards the effect of failure to record confessional statement in the presence of the accused?s legal practitioner as contained in Sections 9 (3) of the ACJL, of Lagos State, 2007 as well as 15 (4) and 17 (2) of the ACJA. In these decisions, this Court has found that non-compliance with the said provisions automatically rendered such statements impotent and inadmissible. In arriving at these decisions, the Court did not in my view recognize the fact that the ACJA or ACJL as the case may be, are largely legislation in the realm of the ideal containing provisions that are for now clearly enforceable and sometimes provisions that could only hope for enforceability in the nearest future. Section (1) (i) of the ACJA, 2015 for instance, states in clear terms that the purpose of the Act is to ensure that the system of administration of Criminal Justice in Nigeria promotes efficient management of Criminal Justice Institutions, speedy dispensation of justice, protection of society from crime and protection of the rights and interest of the suspect, defendant, and victim.
In any event, the above decisions did not as well take cognizance of the fact that Evidence is listed as Item 23 of the Exclusive legislative list, part 1, 2nd schedule to the 1999 Constitution (as amended). Also, the Evidence Act being a specific Act on evidence including admissibility takes precedence over the ACJA in matters of admissibility. See A.V.M OLUTAYO TADE, OGUNTOYINBO V F.R.N. (unreported) appeal No. CA/A/11C/2018 delivered on 14th June, 2018. Had this Court considered and taken into account the hierarchical superiority of the Evidence Act over the ACJA in the cases of JOSEPH ZHIYA V THE PEOPLE OF LAGOS STATE, CHARLES V F.R.N and
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NNAJIOFOR V F.R.N. (supra), they would have come to a different conclusion. In other words, the ACJA or ACJL prescribes procedural rules to be observed while recording the statement of the accused defendant, but the Evidence Act, specifically regulates the rules of the admissibility of such statement.
ISSUE 2
This also queries the decision of the lower Court in refusing to subject Exhibits p1 and p4 to the scrutiny of the provisions of Section 7 (2) of the Criminal Procedure Law, Cap. C17, vol.3, Laws of Cross River State, 2004. The relevant provision of Section 7 (2) of the said law provided thus: –
?Where any person who is arrested with or without a warrant volunteers to make confessional statement, the police shall ensure that the making and taking of such confessional statement shall be recorded on video and the said recording and copies thereof shall be filed and produced at the trial?.
The general rule is that ?shall? is mandatory and ?may? is permissive. Mandatory words impose a duty, permissive words grant discretion. See NIGERIAN NAVY V LABINJO (2012) 17 NWLR (prt
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1328) 56. In appeal NO. CA/A/11C/2018. A.V.M. OLUTAYO TADE OGUNTOYINBO V F.R.N. (Supra) OWOADE, JCA in the lead judgment said
?The ACJA being a teleological enterprise, its draftsman dexterously mixed the use of the command word ?shall? and permissive word ?may? for ual accomplishment?.
The fact still remain that the Evidence Act being a specific Act on evidence, it takes precedence over the ACJA and Criminal Procedure Law in matters of admissibility of evidence. That being the position, non-compliance with Section 7 (2) Criminal Procedure Law, Cap. C17 Laws of Cross River State, 2004 will not affect the admissibility of Exhibit p1 and p4 and I so hold.
ISSUE 3
Issue 3 questioned the decision of the lower Court on whether the respondent had established the guilt of the appellant beyond reasonable doubt.
I have stated right from the onset that the appellant was charged, tried and convicted for offences of rape and indecent assault. In proof of the charge against the appellant the prosecution now respondent paraded pw1 ? pw4 and also tendered the appellant?s
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confessional statements, Exhibits paid p4. The learned trial judge appraised the evidence adduced and concluded at page 92 of the record of appeal that ?
?Exhibits p1 and p4 are corroborated by the evidence of pw1, pw2, pw3, p4 and Dw1. Contrary to the submission of the defence, the evidence of these witnesses are not hearsay. Pw1 and pw4 were the police officers who investigated the matter. Their evidence cannot be hearsay. As for pw2, when she heard from pw3, how she was ravished by the accused that was hearsay. But when she called the accused and asked him and the accused told her that he made love to pw3 three times that was a confession, not hearsay?.
Rape is unlawful carnal knowledge of a girl or woman without her consent by force, fear or fraud and the intercourse must be without the woman?s consent. In other words, a man will be said to have committed rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and at the time, he knows that she does not consent to the intercourse or he is reckless as to whether she consented to it. And even when consent is
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obtained by force or threat or intimidation of any kind or fear of harm or by means of false and fraudulent representation as to the nature of the act, the offence can be committed. See JEGEDE V STATE (2001) 14 NWLR (prt 733) 264.
In a charge for committing the offence of rape, the prosecution must adduce cogent evidence establishing the following:-
(a) That the accused had sexual intercourse with the prosecutrix;
(b) That the act of sexual intercourse was one without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.
(c) That the prosecutrix was not the wife of the accused;
(d) That the accused had the mens rea, the intention to have the sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not.
(e)That there was penetration.
See AHMED V NIGERIAN ARMY (2011) 1 NWLR (prt. 1227) 89, IKO V STATE (2011) FWLR (prt. 68) 1161, OGUNBAYO V STATE (2007) 8 NWLR (prt. 1035) 157 and OLALI V NIGERIAN ARMY (2016) 4
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NWLR (prt 1502) 358.
It must be restated that in all criminal cases, the prosecution has the burden to prove or establish beyond reasonable doubt the guilt of the person charged. Where all the essential ingredients of an offence have been satisfactorily established by the prosecution, the charge is proved beyond reasonable doubt. See ALABI V STATE (1993) 7 NWLR (prt. 301) 511.
From the extract of the judgment of the trial Court which I reproduced above, the appellant?s conviction was essentially predicated on his extra-judicial statements, Exhibits P and P4 which the Court found to have been corroborated by the evidence of pw1 ? pw4.
By Sections 28 and 29 of the Evidence Act, 2011 a confessional statement is an admission made at any time by a person charged with certain offence stating or suggesting that he committed the offence. In Exhibit p1, the appellant states as follows: –
?…It was last month that my madam?s daughter Miracle came back from school and called me to come and make food for her just as she normally called me before, so I went into kitchen and prepare her food for her and I
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asked her to remove her pant of which she did and I have sex with her right inside their parlor. I have done this for three consecutive times. I did not ask the said Miracle not to tell her mother about what is happening.?
Similarly, in Exhibit p4, appellant states ?
?… Really there was a time I asked her for a relationship that is to be my girlfriend and she accepted. I cannot precisely remember the dates but in the month of March 2017, I slept with her once. In the month of April, 2017, I made love to her once and in the month of May 2017 I did once?.
A free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and duly made voluntarily, is sufficient to ground a conviction. This is because a confession always remains the best proof of what he had done. See KAMILA V STATE (2018) 8 NWLR (prt 1621) 252.
It is also settled that before a Court convicts an accused person on his confessional statement alone it must ascertain whether such confessional statement was voluntarily made and that same was also direct, positive pungent and consistent with other facts
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as proof. See JIMOH V STATE (2014) 10 NWLR (prt 1414) 105. A careful perusal of the appellant?s confessional statements, exhibits p1 and p4 vis–vis the record of proceeding, there is no doubting the fact that the trial Court had duly examined and evaluated Exhibits p1 and p4 before arriving at the conclusion as to the appellant?s guilt. At page 90 of the record of appeal the trial Court stated thus, inter alia; –
?The above extracts from Exhibits p1 and p4 clearly admit the offence charged with no doubt existing?.
It continued further that ?
?In this case, the accused retracted from the confession first that he did not make the statements and later that he was forced to sign. At the trial, the defence counsel objected to the admissibility of Exhibit p1 on the ground that the accused did not make the statement and not that it was not voluntary. It was my interlocutory ruling on the objection in accordance with law on retracted confession that during judgment I will make a finding on whether the accused made the statement. From the evidence of the accused himself in Court that he was
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forced to sign the statements it follows that the accused made both Exhibits p1 and pw4. And I so hold?.
Finally, at page 91 of the record of appeal, learned trial judgment found that: –
?On whether the accused made Exhibits p1 and p4 voluntarily, there was no objection at the trial to the admissibility of both Exhibits on that ground to have enable the Court call for trial within trial. It is late in the day for an accused person to allege involuntariness of a confessional statement during defence?.
It is the complaint of the appellant that the trial Court convicted him on uncorroborated and inadmissible evidence. Thus, the trial court solely relied on the confessional statements Exhibits p1 and p4 to convict him of the offences charged. It needs to be emphasized that mere retraction of a voluntary confessional statement by an accused person as in the instant case, does not render such statement inadmissible or worthless or untrue in considering his guilt. See IDOWU V STATE (2000) 7 SC (prt 11) 50.
Turning to the issue of the alleged want of corroborative evidence as alluded to by the learned
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appellant?s counsel, a corroborative evidence is evidence, which is supplementary to that already given and tending to strengthen or confirm it. Corroborative evidence is additional evidence of a different character to the evidence already given. See STEPHEN V STATE (2013) 8 NWLR (prt 1355) 153.
In a trial for rape evidence of corroboration could even come from the accused himself. See POPOOLA V STATE (2013) 17 NWLR (prt 1382) 96. In the instant case the confessional statements of the appellant corroborated the evidence of pw3 that the appellant raped her. Similarly, the evidence of pw2 and DW1 showed that the appellant?s confession was true. Although, the evidence of pw3, 11 years old whose evidence requires corroboration, there is sufficient corroborative evidence in this case to justify the finding of the trial Court that the appellant had committed the offences charged. Corroboration need not to be direct evidence that the accused committed the offence charged. It need not amount to a confirmation of the whole account given by the prosecutrix. However, it must be completely credible evidence which corroborates
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the prosecutrix?s evidence in some aspect material to the charge. See UPAHAR V STATE (2003) 6 NWLR (prt 816) 230. In LUCKY V STATE (2016) 13 NWLR (prt 1528) 128 per NGWUTA, JSC at page 158, parag C ? G said:
?The pw3, a chief medical officer found as a fact that pw1 was bleeding from her vagina and that the bleeding came from the torn hymen. Thus, the pw3 opined, might be due to a forceful penetration of the vagina. Cross-examined by learned counsel for the appellant he said that other causes could lead to the tearing of the vagina, adding that the riding of a bicycle could cause a tearing of the hymen if it comes into contact with a sharp edge.?
In this case, the learned trial judge found as a fact that the testimony of pw3 shows that the appellant made love to her not only establish penetration but also the other elements as she is incapable of giving consent having regard to her age. And DW1 emphatically proved that his examination on pw3 revealed that there was penetration. It is thus my view that the evidence of DW1 sufficiently corroborated the evidence of pw3 that she was raped.
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In the light of the above, the finding of the trial Court is unassailable that the prosecution had proved the offence of rape and indecent assault against the appellant beyond reasonable doubt. The conviction of the appellant is accordingly justifiable in law.
In conclusion, having resolved all the three issues against the appellant, the appeal is moribund and therefore lacking in merit. The judgment of the trial Court is hereby affirmed.
Appeal dismissed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusion in the judgment. I also dismiss the appeal and affirm the judgment of the Court below.
YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother M. SHUAIBU, JCA afforded me the privilege of reading in advance, a draft copy of the judgment just delivered. Issues distilled for determination were succinctly resolved and I agree with the reasoning and conclusion arrived at in the lead judgment.
I want to lend my voice to the vexed issue of non-compliance with Section 7(2) of the Criminal Procedure Law
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It is trite that the provision provides a procedure for the recording of a confessional statement. Where the Appellant denies and retracts his confessional Statement, he cannot be heard to raise non-compliance as a ground to discard a confessional statement. When a confessional statement is not attacked on the ground that it was not voluntarily made, then the accused cannot raise the defence that it should have been recorded to disprove him. Even at that, the law does not make the tendering of video recording as an imperative but discretionary. Furthermore, a confessional statement is evidence and therefore, it must as a matter of law conform to the provisions of the Evidence Act. Therefore, even when the State laws are complied with and the confessional Statements fail to meet the requirements of the Evidence Act, the statement will not be admitted. Ultimately, it is the Evidence Act and no other that is the guiding legislation.
?I am in full agreement with my learned brother and I also dismiss the appeal, I abide by the orders made in lead judgment.
?
?
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Appearances:
Fred Onuobia, Esq.For Appellant(s)
J. T. Atambi (SCII, MOJ, CRS)For Respondent(s)
Appearances
Fred Onuobia, Esq.For Appellant
AND
J. T. Atambi (SCII, MOJ, CRS)For Respondent
Before Their Lordships
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPARJustice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBUJustice of The Court of Appeal of Nigeria
Between
NNEOYI ITAM ENANGAppellant(s)
AND
THE STATERespondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A.(Delivering the Leading Judgment): The appellant was arraigned before the High Court of Cross River State for offences of rape and indecent assault contrary to and punishable under Sections 350 and 360 of the Criminal Code Law, Cap. C16 vol. 3, Laws of Cross River State of Nigeria 2004.
At the trial, the prosecution called four witnesses and tendered four documentary exhibits respectively marked exhibits p1 ? p4. The appellant testified in his defence and called the police doctor who examined the prosecutrix and authored exhibits p2 and p3.
The case for the prosecution was that between the months of March and May, 2017 while in the course of his employment with pw2 (mother of the prosecutrix) at Block 112, Ekorinim phase I, Calabar, the appellant sexually assaulted and had carnal knowledge of the prosecutrix (one Miss Miracle Hogan Bassey, 11 years old).
?At the end of the trial, the Court convicted the appellant and sentenced him to terms of imprisonment.
Dissatisfied with the conviction and sentence, appellant appealed to this Court through a notice of appeal filed on 30/4/2018.
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The said notice of appeal at pages 94 ? 99 of the record of appeal contains nine grounds of appeal.
Distilled from the said nine grounds of appeal, learned counsel for the appellant, Fred Onuobia formulated three issues for the determination of this appeal as follows: –
1. Was the Lower Court right when it failed to take judicial notice of and rely on the provisions of the Administration of Criminal Justice Law of Cross River State 2016 (the ?ACJL?) in relation to Exhibits p1 and p4? (Distilled from ground 1).
2. Was the Lower Court right when it refused to apply to Exhibits p1 and p4 the provisions of Section 7 (2) of the Criminal Procedure Law, Cap. C17 Vol. 3, Laws of Cross River State of Nigeria on the ground that the Cross-River State House of Assembly lacked power to legislate on evidence? (Distilled from grounds 2, 3, and 4).
3. Was the Lower Court correct when it held the respondent proved against the appellant beyond reasonable doubt the offences of rape and indecent assault convicted and sentenced the appellant to terms of imprisonment? (Distilled from grounds 5, 6, 7, 8 and 9).
?Learned counsel for the respondent,
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Greg F. Okem, Esq. also formulated three issues for the determination of this appeal. These are: –
1. Did the Lower Court err in law when it refused to take judicial notice of and rely on the provisions of the Administration of Criminal Justice Law of Cross River State, 2016, (the ?ACJL?) in relation to Exhibits p1 and p4?
2. Did the Lower Court err in law when it refused to apply to Exhibits p1 and p4 the provisions of Section 7 (2) of the Criminal Procedure Law, Cap. C17 Vol.3, Laws of Cross River State of Nigeria, 2004 on the ground that evidence being a matter in the Executive, Legislative List the Cross River State House of Assembly lacks the prove to legislate on same.
3. Did the respondent prove the offences of rape and indecent assault against the appellant beyond reasonable doubt?
The appellant on 26/3/2019 filed appellant?s reply brief which was deemed as properly filed on 7/10/2019.
Proffering argument on issue 1, learned appellant?s counsel submitted that a Court of law must take judicial notice of all laws passed by the House of Assembly of a State irrespective of whether or not same was pleaded
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by any of the parties before it. Thus, the refusal by the lower Court to rely on the provisions of the Administration of Criminal Justice, Law of Cross River State, 2016 which according to the learned counsel is the extant law has occasioned miscarriage of justice unto the appellant. And had the lower Court applied the provision of the extant law, it would have come to an entirely different conclusion as to the guilt of the appellant. He referred to Section 122 (2) (a) of the Evidence Act and the cases of MILITARY GOVERNOR OF OYO STATE V ADEKUNLE (2005) 3 NWLR (prt 912) 294, MOBIL PRODUCING NIG. UNLIMITED & ANOR ? UDO (2008) LPELR ? 8440 and FINNIH V IMADE (1992) NWLR (prt 219) 511 ? 532.
He submitted further that the lower Court having failed to comply with the provisions of Section 17 (1) (4) and (5) of the ACJL, above in admitting Exhibit p1 and p4, this Court has the power to expunge Exhibits p1 and p4 from its record as being patently inadmissible and unreliable. He referred to BUHARI V OBASANJO (2005) 13 NWLR (prt 941) 1 at 176.
On issue 2, learned counsel submits that having found
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and agreed that Exhibits p1 and p4 was not compliant with Section 7 (2) of the Criminal Procedure Law, the lower Court was duty bound to discountenance Exhibits p1 and p4 since the respondent neither recorded the said Exhibits on video nor filed or produced the video recording during the trial as required by the Criminal Procedure Law.
Still in argument, learned counsel submits that the word ?shall? repeatedly used in Section 7 (2) of the Criminal Procedure Law imposes a mandatory obligation and non-compliance is fatal to the case of the respondent herein. He referred to NWANKWO V YAR-ADUA (2010) 12 NWLR (prt 1209) 518 and ONOCHIE V ODOGWU (2006) 6 NWLR (pt. 975) 65.
In further argument, learned counsel submitted that since neither the appellant nor the respondent raised the issue of validity or otherwise of Section 7 (2) of the Criminal Procedure Law, same was raised suo motu by the lower Court without giving the appellant an opportunity to address it on the point, same amounts to the breach of the appellant?s right to fair hearing. He referred to ARAKA V EJEAGWU (2001) FWLR (pt 36)
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830, ULEKE V KAKWA (2013) LPELR ? 20819 and KATTO V CENTRAL BANK OF NIGERIA (2008) FWLR (pt 52) 188 at 208 to the effect that once a party to a proceeding has been denied fair hearing, any judgment obtained thereon is a nullity.
On issue 3, learned counsel alluded to the fact that the sole material used in convicting the appellant are Exhibits p1 and p4 which are inadmissible pieces of evidence and therefore amenable to be expunged. On the evidence of pw3 (a child of 14 years) who gave an unsworn evidence; same according to the learned counsel must be corroborated by some other material evidence before such unsworn testimony could ground a conviction. More importantly, the Court must satisfy itself that the child possesses sufficient intelligence to justify the reception of her evidence and understands the duty of speaking the truth. He referred to Section 209 (1) and (3) of the Evidence Act 2011 and the cases ofSAMBO V STATE (1993) 6 NWLR (prt 300) 399 at 421 and OBIRI V STATE (1997) 7 NWLR (prt 513) 352 at 365.
Respecting the evidence of pw1, pw2 and pw4, learned counsel submits
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that same are hearsay evidence because they derived their information from pw3. It was also argued that the evidence of pw5 and Exhibits p2 and p3 cannot supply the degree of corroboration required. And even if the testimony of pw3 has shown that she was indeed raped and assaulted, there was nothing in the testimony of pw5 and exhibits p2 and p3 to link the appellant with such acts concluded learned counsel for the appellant. He finally submitted that the respondent has woefully failed to establish that the appellant is guilty of rape and indecent assault against pw3. He urged this Court to resolve all the three issues in favour of the appellant and to allow the appeal.
Arguing his three issues on the descending order, learned counsel for the respondent has argued in respect of his issue 3 that there is a positive and unequivocal admission of guilt by the appellant in Exhibits p1 and p4 that the appellant is the perpetrator of the offence as charged before the lower Court. He thus submitted that the mere fact that the appellant subsequently refilled the confession, from Exhibits p1 and p4 are of no moment. He submitted that a confessional statement is the
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best form of proof as it proceeds from the mouth of the accused person himself. He referred toASIMI V THE STATE (2016) 5 ? 6 MJSC 1 at 17 ? 18.
Continuing, learned counsel submits that the requirement for consent is absolutely unnecessary as the prosecutrix, pw3 is a minor who is incapable of giving consent relying on Section 32 (3) (b) of the Child Rights Law of Cross River State, 2009.
Learned counsel conceded that the unsworn evidence of pw3 requires corroboration but that there were corroborative evidence of pw5 and Exhibits p2 and p3 on one hand and the direct oral evidence of pw1, pw2, pw4 which unquestionably put the appellant and no other who sexually molested, defiled, assaulted and had carnal knowledge of pw3 (the prosecutrix). He also submitted that the evidence of pw2 is a direct account of what transpired and the step she took after finding out that her daughter was defiled by the appellant. Thus, her evidence contains the admission and confession made to her by the appellant after she confronted him in the presence of pw3. He referred to AROGUNDADE V THE STATE (2009) ALL FWLR (prt 469) 409 to
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the effect that where a witness stated that a defendant in a Criminal trial had confessed the crime to him; that will not be hearsay.
He submitted finally on this issue that the evidence of pw3 has sufficiently established the necessary elements of the offences of rape and indecent assault and same being unchallenged, is admissible evidence upon which the lower Court properly convicted the appellant.
On issue 2, learned counsel submits that Section 7(2) of the Criminal Law which provides for recording, filing and tendering of video recorded confession at trials touches on evidence which can only be legislated upon by the National Assembly and therefore the lower tribunal was on the right track to have refused to consider it being an item outside the legislative competence of the Cross River State House of Assembly. He referred to Item 23, part 1, 2nd Schedule 1999 Constitution (as amended) and the case of A.G. FEDERATION V A.G. LAGOS STATE (2013) LPELR ? 20974.
?On issue 1, learned counsel submits that there was no law as the Administration of Criminal Justice Law of Cross River 2016 except a draft administration of
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Criminal Justice law of Cross River State 2016 which is undergoing legislative process but yet to be asserted to by the Governor. Thus, the law being relied upon by the appellant is a non-existent law and no Court can take judicial notice of non-existent law.
He submitted further that the basic statutory instrument which regulated the criminal procedure law in Cross River State at the time of the trial of this case was the criminal procedure law, Chp. C17, Vol. 3, Laws of Cross River State of Nigeria 2004 which regrettably did not provide a legal requirement for recording an extra-judicial statement of a criminal suspect to be done in the presence of a legal practitioner or in deed any other person.
Let me first of all deal with the appellant?s reply brief which is meant to respond to new issues raised by the respondent in his brief. The reply brief in this case is an improvement of the appellant?s case. Where a reply brief goes outside the parameters set for it, the Court is duty bound to ignore and discountenance it. And since the appellant?s reply brief in the instant case is aimed at re-arguing the appellant?s case, same
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is ignored and discountenanced.
A careful perusal of the record of appeal vis–vis the various formulations by the respective counsel reveals that the issues formulated are basically the same but couched differently. I will nonetheless determine this appeal on the three issues in the appellant?s brief of argument which I consider to be apt and quite apposite.
ISSUE 1
This issue queries the decision of the lower Court for not taking judicial notice of the Administration of Criminal Justice Law of Cross River State in relation to the appellant?s extra ? judicial statements, Exhibits p1 and p4. The main contention is not on the voluntariness of Exhibits p1 and p4 but that neither the appellant?s lawyer nor any of his relation or person of his choice was present when the said extra-judicial statements were recorded and signed in clear contravention of the mandatory provision of Section 17 (1) (4) and (5) of the Administration of Criminal justice law of Cross River State. The appellant had argued that failure on the part of the trial Court to comply with the relevant provisions of the said law rendered Exhibits p1 and
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p4 worthless and thus liable to be expunged from the Court?s records.
Learned trial judge however found at page 91 of the record of appeal that-
?Clearly, Criminal Proceedings in this Court is governed by the Criminal Procedure Law, Cap C17, Law of Cross River State 2004. There is no such law as the Administration of Criminal justice law of Cross River State published to the knowledge of this Honourable Court.?
By virtue of Section 122 (2) (a) of the Evidence Act 2011, the Court shall take judicial notice of laws or enactments or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria. For such laws and subsidiary legislations to be taken judicial notice of, same must be in existing or had existed previously. In this case, the purported Administration Criminal Justice Law of Cross River State was shown not have been assented to by the Governor of Cross River State but undergoing some legislative processes. The learned trial judge was therefore right not to have taken judicial notice of a law that is not in existence.
?Learned counsel for the appellant
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has strenuously argued that since Exhibits p1 and p4 were not recorded in the presence of the appellant?s legal practitioner or any other person chosen by him, the documents are inadmissible and ought to be expunged from the record of this Court.
Where a document is wrongly admitted in evidence by a Court, the same Court has the power and jurisdiction to expunge it at the judgment stage since it can only base its judgment on legally admissible evidence and documents. In other words, the Court after admitting a document as evidence may at the conclusion of the trial expunge same if it turns out that the said evidence was wrong by received. See NWAOGU V ATUMA (2013) 17 NWLR (prt 1364) 117. The issue in contention here is whether Exhibits p1 and p4 are ultra vires the provisions of Section 17 (1) (4) and (5) of the Administration of Criminal Justice of Cross River State, 2006, same not been recorded in the presence of legal practitioner of the appellant?s choice.
I have stated that the purported law neither exist nor existed to warrant the invocation of Section 122 (2) (a) of the Evidence Act 2011. Even if the said
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Administration of Criminal Justice Law of Cross River State is validly passed and become operational; same has nothing to do with the voluntariness and perhaps the admissibility of the statement which is governed by the provisions of Sections 28 and 29 of the Evidence Act 2011. I have painstakingly examined the decisions of this Court in JOSEPH ZHIYA V THE PEOPLE OF LAGOS STATE (2016) LPELR ? 40562, CHARLES V F.R.N (2018) 13 NWLR (prt 1635) 50 and NNAJIOFOR V F.R.N. (2019) 2 NWLR (prt 1655) 157 as regards the effect of failure to record confessional statement in the presence of the accused?s legal practitioner as contained in Sections 9 (3) of the ACJL, of Lagos State, 2007 as well as 15 (4) and 17 (2) of the ACJA. In these decisions, this Court has found that non-compliance with the said provisions automatically rendered such statements impotent and inadmissible. In arriving at these decisions, the Court did not in my view recognize the fact that the ACJA or ACJL as the case may be, are largely legislation in the realm of the ideal containing provisions that are for now clearly enforceable and
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sometimes provisions that could only hope for enforceability in the nearest future. Section (1) (i) of the ACJA, 2015 for instance, states in clear terms that the purpose of the Act is to ensure that the system of administration of Criminal Justice in Nigeria promotes efficient management of Criminal Justice Institutions, speedy dispensation of justice, protection of society from crime and protection of the rights and interest of the suspect, defendant, and victim.
In any event, the above decisions did not as well take cognizance of the fact that Evidence is listed as Item 23 of the Exclusive legislative list, part 1, 2nd schedule to the 1999 Constitution (as amended). Also, the Evidence Act being a specific Act on evidence including admissibility takes precedence over the ACJA in matters of admissibility. See A.V.M OLUTAYO TADE, OGUNTOYINBO V F.R.N. (unreported) appeal No. CA/A/11C/2018 delivered on 14th June, 2018. Had this Court considered and taken into account the hierarchical superiority of the Evidence Act over the ACJA in the cases of JOSEPH ZHIYA V THE PEOPLE OF LAGOS STATE, CHARLES V F.R.N and
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NNAJIOFOR V F.R.N. (supra), they would have come to a different conclusion. In other words, the ACJA or ACJL prescribes procedural rules to be observed while recording the statement of the accused defendant, but the Evidence Act, specifically regulates the rules of the admissibility of such statement.
ISSUE 2
This also queries the decision of the lower Court in refusing to subject Exhibits p1 and p4 to the scrutiny of the provisions of Section 7 (2) of the Criminal Procedure Law, Cap. C17, vol.3, Laws of Cross River State, 2004. The relevant provision of Section 7 (2) of the said law provided thus: –
?Where any person who is arrested with or without a warrant volunteers to make confessional statement, the police shall ensure that the making and taking of such confessional statement shall be recorded on video and the said recording and copies thereof shall be filed and produced at the trial?.
The general rule is that ?shall? is mandatory and ?may? is permissive. Mandatory words impose a duty, permissive words grant discretion. See NIGERIAN NAVY V LABINJO (2012) 17 NWLR (prt
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1328) 56. In appeal NO. CA/A/11C/2018. A.V.M. OLUTAYO TADE OGUNTOYINBO V F.R.N. (Supra) OWOADE, JCA in the lead judgment said
?The ACJA being a teleological enterprise, its draftsman dexterously mixed the use of the command word ?shall? and permissive word ?may? for ual accomplishment?.
The fact still remain that the Evidence Act being a specific Act on evidence, it takes precedence over the ACJA and Criminal Procedure Law in matters of admissibility of evidence. That being the position, non-compliance with Section 7 (2) Criminal Procedure Law, Cap. C17 Laws of Cross River State, 2004 will not affect the admissibility of Exhibit p1 and p4 and I so hold.
ISSUE 3
Issue 3 questioned the decision of the lower Court on whether the respondent had established the guilt of the appellant beyond reasonable doubt.
I have stated right from the onset that the appellant was charged, tried and convicted for offences of rape and indecent assault. In proof of the charge against the appellant the prosecution now respondent paraded pw1 ? pw4 and also tendered the appellant?s
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confessional statements, Exhibits paid p4. The learned trial judge appraised the evidence adduced and concluded at page 92 of the record of appeal that ?
?Exhibits p1 and p4 are corroborated by the evidence of pw1, pw2, pw3, p4 and Dw1. Contrary to the submission of the defence, the evidence of these witnesses are not hearsay. Pw1 and pw4 were the police officers who investigated the matter. Their evidence cannot be hearsay. As for pw2, when she heard from pw3, how she was ravished by the accused that was hearsay. But when she called the accused and asked him and the accused told her that he made love to pw3 three times that was a confession, not hearsay?.
Rape is unlawful carnal knowledge of a girl or woman without her consent by force, fear or fraud and the intercourse must be without the woman?s consent. In other words, a man will be said to have committed rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and at the time, he knows that she does not consent to the intercourse or he is reckless as to whether she consented to it. And even when consent is
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obtained by force or threat or intimidation of any kind or fear of harm or by means of false and fraudulent representation as to the nature of the act, the offence can be committed. See JEGEDE V STATE (2001) 14 NWLR (prt 733) 264.
In a charge for committing the offence of rape, the prosecution must adduce cogent evidence establishing the following:-
(a) That the accused had sexual intercourse with the prosecutrix;
(b) That the act of sexual intercourse was one without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.
(c) That the prosecutrix was not the wife of the accused;
(d) That the accused had the mens rea, the intention to have the sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not.
(e)That there was penetration.
See AHMED V NIGERIAN ARMY (2011) 1 NWLR (prt. 1227) 89, IKO V STATE (2011) FWLR (prt. 68) 1161, OGUNBAYO V STATE (2007) 8 NWLR (prt. 1035) 157 and OLALI V NIGERIAN ARMY (2016) 4
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NWLR (prt 1502) 358.
It must be restated that in all criminal cases, the prosecution has the burden to prove or establish beyond reasonable doubt the guilt of the person charged. Where all the essential ingredients of an offence have been satisfactorily established by the prosecution, the charge is proved beyond reasonable doubt. See ALABI V STATE (1993) 7 NWLR (prt. 301) 511.
From the extract of the judgment of the trial Court which I reproduced above, the appellant?s conviction was essentially predicated on his extra-judicial statements, Exhibits P and P4 which the Court found to have been corroborated by the evidence of pw1 ? pw4.
By Sections 28 and 29 of the Evidence Act, 2011 a confessional statement is an admission made at any time by a person charged with certain offence stating or suggesting that he committed the offence. In Exhibit p1, the appellant states as follows: –
?…It was last month that my madam?s daughter Miracle came back from school and called me to come and make food for her just as she normally called me before, so I went into kitchen and prepare her food for her and I
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asked her to remove her pant of which she did and I have sex with her right inside their parlor. I have done this for three consecutive times. I did not ask the said Miracle not to tell her mother about what is happening.?
Similarly, in Exhibit p4, appellant states ?
?… Really there was a time I asked her for a relationship that is to be my girlfriend and she accepted. I cannot precisely remember the dates but in the month of March 2017, I slept with her once. In the month of April, 2017, I made love to her once and in the month of May 2017 I did once?.
A free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and duly made voluntarily, is sufficient to ground a conviction. This is because a confession always remains the best proof of what he had done. See KAMILA V STATE (2018) 8 NWLR (prt 1621) 252.
It is also settled that before a Court convicts an accused person on his confessional statement alone it must ascertain whether such confessional statement was voluntarily made and that same was also direct, positive pungent and consistent with other facts
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as proof. See JIMOH V STATE (2014) 10 NWLR (prt 1414) 105. A careful perusal of the appellant?s confessional statements, exhibits p1 and p4 vis–vis the record of proceeding, there is no doubting the fact that the trial Court had duly examined and evaluated Exhibits p1 and p4 before arriving at the conclusion as to the appellant?s guilt. At page 90 of the record of appeal the trial Court stated thus, inter alia; –
?The above extracts from Exhibits p1 and p4 clearly admit the offence charged with no doubt existing?.
It continued further that ?
?In this case, the accused retracted from the confession first that he did not make the statements and later that he was forced to sign. At the trial, the defence counsel objected to the admissibility of Exhibit p1 on the ground that the accused did not make the statement and not that it was not voluntary. It was my interlocutory ruling on the objection in accordance with law on retracted confession that during judgment I will make a finding on whether the accused made the statement. From the evidence of the accused himself in Court that he was
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forced to sign the statements it follows that the accused made both Exhibits p1 and pw4. And I so hold?.
Finally, at page 91 of the record of appeal, learned trial judgment found that: –
?On whether the accused made Exhibits p1 and p4 voluntarily, there was no objection at the trial to the admissibility of both Exhibits on that ground to have enable the Court call for trial within trial. It is late in the day for an accused person to allege involuntariness of a confessional statement during defence?.
It is the complaint of the appellant that the trial Court convicted him on uncorroborated and inadmissible evidence. Thus, the trial court solely relied on the confessional statements Exhibits p1 and p4 to convict him of the offences charged. It needs to be emphasized that mere retraction of a voluntary confessional statement by an accused person as in the instant case, does not render such statement inadmissible or worthless or untrue in considering his guilt. See IDOWU V STATE (2000) 7 SC (prt 11) 50.
Turning to the issue of the alleged want of corroborative evidence as alluded to by the learned
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appellant?s counsel, a corroborative evidence is evidence, which is supplementary to that already given and tending to strengthen or confirm it. Corroborative evidence is additional evidence of a different character to the evidence already given. See STEPHEN V STATE (2013) 8 NWLR (prt 1355) 153.
In a trial for rape evidence of corroboration could even come from the accused himself. See POPOOLA V STATE (2013) 17 NWLR (prt 1382) 96. In the instant case the confessional statements of the appellant corroborated the evidence of pw3 that the appellant raped her. Similarly, the evidence of pw2 and DW1 showed that the appellant?s confession was true. Although, the evidence of pw3, 11 years old whose evidence requires corroboration, there is sufficient corroborative evidence in this case to justify the finding of the trial Court that the appellant had committed the offences charged. Corroboration need not to be direct evidence that the accused committed the offence charged. It need not amount to a confirmation of the whole account given by the prosecutrix. However, it must be completely credible evidence which corroborates
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the prosecutrix?s evidence in some aspect material to the charge. See UPAHAR V STATE (2003) 6 NWLR (prt 816) 230. In LUCKY V STATE (2016) 13 NWLR (prt 1528) 128 per NGWUTA, JSC at page 158, parag C ? G said:
?The pw3, a chief medical officer found as a fact that pw1 was bleeding from her vagina and that the bleeding came from the torn hymen. Thus, the pw3 opined, might be due to a forceful penetration of the vagina. Cross-examined by learned counsel for the appellant he said that other causes could lead to the tearing of the vagina, adding that the riding of a bicycle could cause a tearing of the hymen if it comes into contact with a sharp edge.?
In this case, the learned trial judge found as a fact that the testimony of pw3 shows that the appellant made love to her not only establish penetration but also the other elements as she is incapable of giving consent having regard to her age. And DW1 emphatically proved that his examination on pw3 revealed that there was penetration. It is thus my view that the evidence of DW1 sufficiently corroborated the evidence of pw3 that she was raped.
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In the light of the above, the finding of the trial Court is unassailable that the prosecution had proved the offence of rape and indecent assault against the appellant beyond reasonable doubt. The conviction of the appellant is accordingly justifiable in law.
In conclusion, having resolved all the three issues against the appellant, the appeal is moribund and therefore lacking in merit. The judgment of the trial Court is hereby affirmed.
Appeal dismissed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusion in the judgment. I also dismiss the appeal and affirm the judgment of the Court below.
YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother M. SHUAIBU, JCA afforded me the privilege of reading in advance, a draft copy of the judgment just delivered. Issues distilled for determination were succinctly resolved and I agree with the reasoning and conclusion arrived at in the lead judgment.
I want to lend my voice to the vexed issue of non-compliance with Section 7(2) of the Criminal Procedure Law
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It is trite that the provision provides a procedure for the recording of a confessional statement. Where the Appellant denies and retracts his confessional Statement, he cannot be heard to raise non-compliance as a ground to discard a confessional statement. When a confessional statement is not attacked on the ground that it was not voluntarily made, then the accused cannot raise the defence that it should have been recorded to disprove him. Even at that, the law does not make the tendering of video recording as an imperative but discretionary. Furthermore, a confessional statement is evidence and therefore, it must as a matter of law conform to the provisions of the Evidence Act. Therefore, even when the State laws are complied with and the confessional Statements fail to meet the requirements of the Evidence Act, the statement will not be admitted. Ultimately, it is the Evidence Act and no other that is the guiding legislation.
?I am in full agreement with my learned brother and I also dismiss the appeal, I abide by the orders made in lead judgment.
?
?
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Appearances:
Fred Onuobia, Esq.For Appellant(s)
J. T. Atambi (SCII, MOJ, CRS)For Respondent(s)
Appearances
Fred Onuobia, Esq.For Appellant
AND
J. T. Atambi (SCII, MOJ, CRS)For Respondent
