PC. SALISU MAMUDA v. THE STATE
In the Supreme Court of Nigeria
Thursday, January 10, 2019
Case Number: SC.225/2015
WALTER SAMUEL NKANU ONNOGHEN
MUSA DATTIJO MUHAMMAD
KUMAI BAYANG AKA’AHS
JOHN INYANG OKORO
CHIMA CENTUS NWEZE
PC. SALISU MAMUDA
(DELIVERED MUSA DATTIJO MUHAMMAD, J.S.C.)
The appellant who was arraigned and charged along with five others inter-alia for rape contrary to Section 283 of the Penal Code law at the Kano State High Court, the trial Court, was found guilty under the 11th, 12th and 13th heads of charge for raping one Hindatu Sani on the 26th, 27th and 28 of October 2010 respectively. On conviction, he was sentenced to seven years imprisonment and a N50, 000.00k (fifty thousand naira) fine for each of the head of the three count charge. In default of the payment of the fine, a six-month term of imprisonment was to be served for each head of the charge. The imprisonment terms were ordered to run concurrently. Dissatisfied, the appellant appealed to the Court of Appeal, Kaduna Division hereinafter referred to as the lower Court, on a notice containing five grounds filed on the 25th June 2012. The appeal was dismissed by the lower Court. Still aggrieved, the appellant has further appealed to this Court vide his notice dated 17th December 2015 containing three grounds.
The three issues distilled for the determination of the appeal in the appellant’s brief adopted and relied upon at the hearing of the appeal read: –
“i. Whether in view of the totality of facts and circumstances of this case and the evidence properly before the trial Court, the Court below was right when it confirms the decision of the trial Court. (Distilled from Ground One).
ii. Whether the contradictions in the prosecution witness’s testimonies is not material and fundamental to render their evidence unreliable and without probative value. (Distilled from Ground Two).
iii. Whether the Lower Appellate Court was right in its findings that there was no breach to the Appellant’s right to fair hearing in the conduct of the entire proceedings. (Distilled from Ground Three).”
At page 5 of the respondent’s brief three similar issues have been proffered for the determination of the appeal thus: –
“1. Whether the Court below was right to have affirmed the decision of the trial lower Court that the Respondent has proved its case beyond reasonable doubt.
2. Whether the Court below was right to have affirmed the decision of the trial lower Court that there was no material contradiction in the respondent’s case.
3. Whether the Court below was right to have held that the appellant’s right to fair hearing has not been breached.”
On the 1st and 2nd issues, it is argued that the respondent having failed, by the evidence on record, to establish the offence of rape as provided for under Section 282 (1) of the Penal Code, is not entitled to the concurrent conviction it secured against the appellant from both Courts below. Not even the evidence of the prosecutrix, PW5, it is contended, controverted the evidence of the appellant who, as DW5, testified that the former had consented to the intercourse between the two. Appellant’s unchallenged evidence at page 89 of the record of appeal shows clearly that the sex with PW5 was voluntary and at a fee of two thousand naira. Both Courts have erred in failing to rely on the appellant’s cogent evidence. On the authority of Ogunbayo V. State (2007) 9 NWLR (Pt 1035) 162, Iko V. State (2001) 14 NWLR (Pt 732) 221 and Fatai Olayinka V. State (2007) 4 SCN1 54, it is urged that the erroneous judgments of the two lower Courts be interfered with the testimonies of PW1, PW2, PW3, PW4 and PW5, it is further contended, are materially contradictory. Whereas PW5 in her evidence asserts that she was locked up in DW1’s room and never had the opportunity of being alone from the day DW1 arrested her, the evidence of PW2 shows that the lock to the room she was locked up in was damaged. This, it is submitted, raises the question whether indeed PW5 was locked and never had the opportunity of being alone to be able to escape from captivity. The evidence of PW3, it is submitted, strengthens that of PW6 to the effect that if PW5 wanted she would have escaped. Relying on Doma V. State (2012) 13 NWLR (Pt 1317) 322, Onuchukwu V. State (1998) 4 NWLR (Pt 547) 578 and John Agbo V. State (2006) 1 SCNJ 332, learned counsel submits that the violent contradictions in the evidence of respondent’s witnesses make the attainment of the proof of the offence against the appellant as required by the law impossible. The burden not having been discharged by the respondent, argue, learned counsel, the concurrent conviction of the appellant for rape cannot survive. Lastly on the two issues, learned appellants counsel submits that exhibit A the medical report on PW5 was wrongly admitted through PW4, the investigating police officer, through whom it was tendered. Not tendered through the doctor who issued the report, and in breach of Section 83 of the Evidence Act, the exhibit must be expunged. Reliance has inter-alia been placed on Fatai Olayinka V. State supra and S. O. Ntuks & Ors V. Nigeria Ports Authority (2007) 5 SCNJ 204. In any event, it is further submitted, exhibits A as well as B1 B2 do not have the probative value the two Courts assigned to then. Relying on Haruna V. AG Federation (2012) 9 NWLR 419, Akinyemi V. Odu’a Investment Co. Ltd (2012) 17 NWLR 209 and Edward Okwe Jimiror V. G. Gbakeji and Anor (2008) 1 SCNJ 481, learned counsel urges this Court, being equally empowered, to re-evaluate the evidence on record and interfere with the perverse concurrent findings of the two Courts.On appellants 3rd issue, learned appellants counsel submits that two facts are evident from the record of appeal thus: –
(1) the trial Court’s refusal of adjournment to enable the appellant cross examine PW5 who had testified extensively and
(II) absence of the appellant at the trial Court’s proceedings of 1-3-2012. The grant of an adjournment by a Court falls within the discretion of the judge the exercise of which, it is submitted, is interfered with if done wrongly.
In the case at hand where the trial Court refused adjournment to facilitate the cross-examination of a very vital witness, it is submitted, the affirmation by the lower Court of the trial Court’s judgment inspite of the miscarriage of justice it occasioned is unpardonable. A breach of the appellant’s right to fair hearing entitles him to the nullification of the decision of the two Courts as variously held, it is submitted, in Efetiroroje V. Okpalefe II (1991) 5 NWLR (Pt 193) 517, Royal Exchange Assurance (Nig) Ltd V. Aswani Textiles Ltd (1992) 3 NWLR (Pt 227) 1 and University of Lagos V. Aigoro (1985) 1 NWLR (Pt 91) 143. It is further contended that on 1-3-2012 when counsel adopted his address the appellant was not present in Court. A proceeding conducted in appellant’s absence, it is contended, infringes upon his right to fair hearing and if made out entitles him to the nullification of the entire proceeding including the judgment. Relying on Danladi V. Dangiri, (2015) 2 NWLR (Pt 1442) 231 and MFA V. Inongha (2014) 4 NWLR (Pt 1397) 350 learned counsel urges that the issue be resolved in appellant’s favour.
On the whole, learned counsel prays that the appeal be allowed. Under their 1st and 2nd issues, learned respondents counsel cites Section 282 of the Penal Code and contends that the offence thereunder has been established beyond reasonable doubt against the appellant. It is not in doubt, submit learned counsel, that appellant had sex with the prosecutrix against her will and without her consent. This, it is further submitted, satisfies the requirement of the law. The appellant at pages 89, 90 and 94 of the record, it is submitted, had in his evidence in chief and under cross examination testified that he had sex with the prosecutrix, PW5, at the police barracks. PW5, who was abducted and kept in captivity, it is argued, cannot be said to have freely had the intercourse with the appellant. Appellant’s insistence that exhibit A, the medical report on PW5, lacks probative value and the evidence of PW5 is not corroborated, learned respondents counsel submits, lacks substance. Appellants own admission not only provides the corroboration but makes further proof of the offence unnecessary. Indeed, it is argued, nothing stops a Court from convicting an accused on the uncorroborated evidence of the prosecutrix. Learned counsel cites Isa Ahmed V. Nigerian Army (2011) NWLR (Pt 1227) 89, Dagayya V. State (2006) 7 NWLR (Pt 980) 647, Shaibu Musa V. State (2013) LPELR-19932 (SC) and particularly Mufutau Bakare V. State (1987) 1 NSCC 267 at 272 to conclude that respondent has discharged the burden of proof under Section 135 of the Evidence Act.
Further arguing the two issues, learned respondent’s counsel submits that the contradictions in the evidence of PW1, PW2, PW3 and PW5 the appellant seeks to exploit are not substantial as to render the overall evidence led by the respondent suspect. The inconsistencies in the testimonies of the witnesses, if any, do not go to the root of the case which is that the appellant had intercourse with the prosecutrix and without her consent. Having not established substantial disparagement in the testimonies of the witnesses, it is argued, it does not avail the appellant to have their evidence, discountenanced. Learned counsel relies on Eke V. State (2011) 3 NWLR (Pt 1235) 589, Agbo V. State (2006) All FWLR (Pt 309) 1380, Enahoro V. The Queen (1965) ANLR 125 at 150 and Owie V. Ighiwi 5 NWLR (Pt 917) 184. He prays that the two issues be resolved against the appellant. On appellants 3rd issue, learned respondents counsel submits that appellant’s contention under the issue has no legal basis. Lines 1 and 2 of page 50 of the record of appeal contains appellant counsel application for adjournment to enable them cross-examine PW5. It is clear, learned counsel submits, that no cogent reason was proffered by the applicant to secure the relief he sought. Courts, it is contended do not grant adjournments as a matter of course. In the exercise of their discretion, it is submitted, the Court must weigh the whole circumstances before them to balance the interest of parties and meet the dictates of justice. In the case at hand where the appellant has failed to establish that the trial Court’s exercise of discretion was not arbitrary. This Court like the lower Court, learned counsel submits, cannot interfere with the rightful exercise of judicial discretionary powers. Learned counsel relies among others on Echaka Cattle Ranch Ltd V. NACB Ltd (1998) NWLR (Pt 547) 526, Williams V. Hope Rising Voluntary Funds Society (1982) 2 SC 145, Solanke V. Ajibola (1969) NLR 259 and Adejumo V. Ayantegbe (1989) 6 SCNJ 96.
Similarly, it is submitted, the trial Court in the rightful exercise of its powers under Section 122 of the Criminal Procedure Code justifiably refused appellant’s application for his statement that was in the case diary. In FRN V. Wabara (2013) NWLR (Pt 1347) 331 this Court in restating its decision in Alh Rauf O. Gaji V. State (1975) 5 SC 61 at 77 held that Section 122 of the Criminal Procedure Code prohibit access to an accused or his counsel to statements of accused persons and/or witnesses. Further relying on Samuel Attah V. State (2010)10 NWLR (Pt 1201) 190 learned counsel submits that the facility Section 36 of the 1999 Constitution provides to be given to the accused does not include his statement contained in the case diary. Lastly, on the issue, learned respondent’s counsel submits, appellant’s contention that his absence in Court on 1-3-2012 when counsel adopted their written addresses has also breached his right to fair hearing does not so hold. Cases, it is contended, are not decided on addresses of counsel but on credible evidence. Adoption of addresses of counsel, it is argued, is a mere formality which does not diminish or add to the strength or weakness of a party’s case. Reliance is put on Ndu V. State (1990) 21 NSCC (Pt 3) 505. Concluding, learned counsel refers to the decisions in State V. Adekunle (2006) 14 NWLR (Pt 1000) 717 and State V. Gwonto & 1 other (1983) 14 NSCC 104 in contending that appellant’s rights should have been demanded by his counsel and not anyone else. Since counsel did not object to the addresses being adopted inspite of appellant’s absence, it is submitted, the objection cannot be raised at the Court below or even here now. The lapse remains an irregularity which in the absence of any miscarriage of justice should be discountenanced. Learned counsel cites Burairnoh Ajayi & others V. Zaria N. A. 1964 NWLR 61 and Arab v. Bauchi NA (1965) NNLR 48 in support and urges that all the issues be resolved against the appellant and the appeal dismissed. My lords, appellant’s grudges under his 1st and 2nd issues for the determination of his appeal are on the quality, nay, complete paucity of the evidence on record. He contends that the concurrent findings of the two Courts below convicting the appellant are not sustainable by the evidence on record It is argued that violent contradictions in the evidence led by the respondent disentitle any reasonable tribunal from convicting the appellant. Whereas PW5 in her evidence at pages 38 55 of the record claims that she was locked throughout in PW3’s room where the appellant and his co-traveller’s serially raped her, learned counsel contends, the testimonies of PW1, PW2 and PW3, on the other hand, not only state that they saw PW5, the prosecutrix, at various times alone in the room but that the room was not locked. Still, though PW5 asserts that she was conveyed to the room by DW3 and DW4, the 1st and 2nd accused persons respectively, in a police van, PW1, PW2 and PW3 testified that PW5 was transported by the duo on a motorcycle. Learned counsel submits that the evidence of these witnesses which corroborate that of the appellant should have been preferred to that of PW5. It is appellant’s further contention that notwithstanding the contradictions in the evidence of these prosecution witnesses, the evidence on record is incapable of sustaining the concurrent findings of guilt by the two Courts below. It cannot be. It is unreasonable to buy into these submissions and to upset the concurrent findings learned counsel claim are absurd. They are not.The essence of the testimonies of PW1, PW2 and PW3, as rightly found by the trial Court at page 258 of the record and affirmed by the lower Court, is to corroborate the evidence of PW5 to the effect that after the 1st and 2nd accused had abducted PW5, they moved about with and accommodated her in PW3s room where the accused persons, including the appellant, serially raped their victim. Indeed, it does not matter whether, as stated by some of the witnesses, PW5 was conveyed there by a motorcycle or, as the latter testified, with a police van. The crucial thing is whether, as PW5 testified, the appellant had had sexual intercourse with her in the very room without her consent. PW3 had testified that the appellant had collected the key to his room on 26/10/2010; that he saw PW5 in the room and that she informed him that it was appellant who took her there. The appellant in exhibit E, his extra judicial statement, and evidence at trial, admitted taking PW5 and having sex with her in PW3s room. He however maintains that PW5 had consented to the sex.
One agrees with learned respondent’s counsel that with the drift in the testimonies of PW1, PW2, PW3 and PW5, it is absurd for the appellant to suggest and insist that material contradictions in the evidence of the witnesses have rendered their testimonies suspect enough to render appellant’s conviction based on the evidence untenable.
The applicable principle is that only material or grave contradictions in the evidence of a party which goes to the root of the case weakens the case of the party who relies on the evidence so bedeviled. See Okereke V. The State (1998) 3 NWLR (Pt 540) 73 at 91 and Uwagboe V. State (2008) 12 NWLR (Pt 1102) 621.
In the case at hand, the two Courts below are without blemish in their reliance on the testimonies of PW1, PW2 and PW3 which do not in any material particular contradict but rather corroborate that of PW5 in convicting the appellant for rape. Now, both counsel agree that to sustain the concurrent conviction of the appellant by the two Courts below under Section 282 of the Penal Code Law for rape, the prosecution must prove by credible evidence and beyond reasonable doubt that the sexual intercourse the appellant himself admitted he had with PW5, a woman not his wife, was in any of the following circumstances: –
(a) against her will;
(b) without her consent;
(c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt;
(d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(e) with or without her consent, when she is under fourteen years of age or of unsound mind. (Underlining mine for emphasis).
The trial Court, which decision the lower Court affirmed, had had to infer from the evidence of the opposing sides whether the intercourse between the appellant and PW5 was one between two willing and consenting adults. The task of evaluating evidence and ascribing probative value to it is the primary duty of the trial Court. The lower Court and indeed this Court, unlike the trial Court, are handicapped when evaluation of evidence, as in this case, is raised and credibility of the witnesses is made an issue. See Nnorodim V. Ezeani (2001) 2 SC 145 and Onuoha V. The State (1998) 5 NWLR (Pt 548) 118. Apart from the contradictions in the evidence in respondent’s witnesses already recounted and adjudged not substantial enough to warrant interfering with the concurrent findings of the two Courts below, learned appellant’s counsel has insisted that exhibit A, the medical report on PW5, having been tendered and admitted through PW4, the investigating police officer, rather than its maker, cannot establish the fact that the appellant had “penetrated” PW5’s vagina. In the absence of proof of this vital fact, learned counsel contends, appellant’s conviction for rape is not maintainable. He urges that same be set aside. In determining whether or not the sex between the two had occurred and was with PW5’s consent or not, the trial Court at page 256 of the record, held thus: –
“PW5 (prosecutrix) testified to the fact that the 1st, 2nd and 3rd accused persons with three others at large had sexual intercourse with her against her will, without her consent. It is also her evidence that the 1st accused person put her in fear of death when he threatened to shoot her with a gun if she shouts before he forcefully had sexual intercourse with her. And none of the six men that had sexual intercourse with her is her husband because she told the Court in her evidence that she knew the accused persons for the first time at the time of his incidence. Her evidence was not challenged or contraverted under cross-examination.”
(Underlining mine for emphasis).
At page 264 of the record, the trial Court particularly held in relation to the appellant who was the 3rd accused as follows: –
“The evidence of PW3 is that the 3rd accused person collected the key of his room at Kwalli police barracks to have a rest because he had stomach pain, which he gave him and that was on 26/10/2010. PW3 said on 28/10/2010 when he went to the room he found a female inside who told him it was the 3rd accused who kept her there. His evidence is corroborated by the confessional statement of the 3rd accused person exhibit “E” when he states one Yusuf Ibrahim (1st accused) M attached to Kwalli division called me and asked me to come to security tower at Gidan Murtala to take one lady Hindatu at about 2200hrs. When I arrived I took her to Dauda Sule’s room located at Kwalli police station barracks for only one day.”
(Underlining mine for emphasis). The trial Court’s crucial question at page 265 of the record in relation to the foregoing facts before it reads: –
“The question is what is the 3rd accuseds reason for keeping PW5 in the room of PW3 for one day? Her evidence which I believe and accepted is that 3rd accused person kept her in Dauda’s room and was having sexual intercourse with her which the 3rd accused person himself admitted in this evidence in Court.” (Underlining supplied for emphasis). The trial Court then resumed its evaluation as follows: –
“Although his admission is based on the fact that PW5 consented to the sexual intercourse, which evidence his counsel said was not challenged, but the evidence of PW5 is that she protested and if there is consent, the question of protest should not have arisen. It is the evidence of PW5 (prosecutrix) that she never committed to promiuxuity with any of the accused person and the other three men at large. The admission of the 3rd accused person that he had sex with PW5 (prosecutrix) but with her consent is just an afterthought which will not avail him.” (Underlining supplied for emphasis).
And the trial Court concluded at page 267 of the record thus: –
“The three accused persons by having sexual intercourse willy-nilling (sic) with the victim irrespective of her consent are guilty of rape. The three accused persons who are police officers with a duty of protecting the lives and properties of people misused their office in committing this crime. It is most unfortunate when an inspector of police is involved.”
The lower Court in affirming the trial Court’s foregoing findings firstly held at page 335 of the record thus: –
“The whole evidence of the witnesses show that there is no material contradiction to disturb the findings of the trial Court. The contradiction that will upset the decision of a Court must be one that touches on the ingredients of the offence; See DIBIE V. THE STATE (2007) 3 SC (PT. 1) 176.
The court had earlier held at pages 333 334 as follows:
“At pages 225 and 260 of the record of appeal in the instant case, the learned trial judge, the prosecution and based on the evidence of the witnesses, found and held that the charge against the appellant was proved. Let me add here that penetration was clearly established by the evidence of prosecutrix as PW5 that the appellant had sexual intercourse with her and the admission of this intercourse by the appellant.
On the requirement of corroboration …the learned trial judge answered this issue at page 260 of the record of appeal; that there was corroboration. The learned judge then held that ‘However, in OGUNBAYO V. STATE (supra) it was held that it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix.’
Indeed, the consensus of the judicial decisions on the requirement of corroboration or corroborative evidence is that although it is desirable as a matter of practice rather than a matter of statute to have such corroborative evidence the Court is nonetheless not hindered from convicting an accused person.” (underlining mine for emphasis). It is the foregoing affirmation of the findings of the trial Court the appellant by this appeal urges should be set-aside. The law does not support him. It must be stressed that the appellant, who has admitted both in exhibit E and in his testimony at the trial Court that he had had sexual intercourse several times with PW5, has rendered further proof of the occurrence of sexual intercourse between the two superfluous. Whether or not PW5 had consented to the intercourse is a question of fact the determination of which hinges on the weight to attach to the evidence of each side. Here, the overriding factor remains the credibility of the witnesses which the trial Court was better placed to contend with. By the applicable principle, the concurrent findings of the two Courts below the appellant wants this Court to interfere with clearly draw from the evidence on record and which the appellant has not succeeded in demonstrating otherwise must persist. The trial Court’s findings as affirmed by the lower Court are arrived at on the basis of the credibility of the witnesses of either side which the former, having seen and observed them while testifying was better placed to assess, an advantage which neither the lower Court nor this Court has. Both Courts remain handicapped. Having failed to show that the concurrent findings are perverse, this Court cannot therefore oblige the appellant. See Omotola & Ors V. The State and Chukwuma V. FRN (2011) LPELR-863 (SC). Appellant’s 1st and 2nd issues are therefore resolved against him. The appellant’s three pronged attack against the lower Court’s judgment under the 3rd issue for the determination of the appeal must equally fail. Under the issue, he firstly contends that the lower Court’s affirmation of the trial Court’s dismissal of the application for his statement the respondent recorded in the course of the investigation of the case against him constitutes a breach of his constitutionally guaranteed right to the statement. He rests his submission on Section 36 (6) of the1999 Constitution as amended. The trial Court in dismissing appellant’s application, see pages 10 11 of the record, inter-alia held: –
As the constitution is alien on this requirement we have to rely on the procedural laws. Section 122 (1) CPC is to the effect the accused person or his agent shall not be permitted to called for or inspect a case diary or any part thereof statements of the accused as we all know are contained in the case diary Section 122 (1) CPC is a mandatory provision that must be compiled I therefore refuse the application and it is a accordingly dismissed.”
Learned respondent’s counsel has alluded to two decisions: Alh Rauf O. gaji V. State (1975) 5 SC 61 and F.R.N. V. Wabara (2013) NWLR (Pt 1347) 33, wherein, he submits, this Court pronounced on Section 122 (1) of the Criminal Procedure Code. It is true that therein this Court has held that it is not a right that appellant’s statement be made available to him failing which the charge which he faces is quashed. Indeed, in the latter case, where the Court of Appeal set aside a ruling on the issue on all fours as the one in the instant matter by the trial Court, this Court adjudged the Court of Appeal’s decision on the issue incorrect. Appellant has not asked us to overrule the two decisions which remain binding on the two Courts below as well as this Court. Beyond that, I find the lower Court’s stand on the issue and the related issue of the trial Court’s refusal to adjourn to facilitate appellant counsel’s cross-examination of PW5 instructive and commendable. At pages 338 339 the Court held firstly thus: –
“It is clear from the proceedings at the trial Court that the ‘adequate facility’ the learned counsel for appellant wanted was the statement of the accused and all other documents intended to be tendered at the trial. It is noted that the learned Attorney General stated that what the learned defence counsel was seeking are contained in the case diary. It is provided in Section 122 (1) (a) of the Criminal Procedure Code that ‘a Court may if shall think fit order the production of the case diary for its inspection under the provision of Section 144.’ Thus for the Court to exercise its discretion under this provision, the proper foundation must be laid for the request for a content of the case diary. See BABALOLA V. THE STATE (1979) NNLR 31. It has been noticed that at the stage of the application of the appellant’s counsel, no evidence had been called to know that any other document would be relied upon outside the ones clearly stated in the proof of evidence made available by the prosecution.”
And concluded as follow: –
“The Statement of the appellant was in the course of the trial tendered by the prosecution and admitted as exhibit E.
On the refusal of the adjournment sought by defence counsel, I need to restate the settled position of the law that the grant or refusal of an application is within the discretion of the Court handling the case. See ALALADE V. ACCOUNTANTS DISCIPLINARY TRIBUNAL OF I.C.A.N. 1975 A SC 43; OGUNSANYA V. THE STATE (2011) LPELR 234 (SC). It is also the law that an appellate Court will not interfere with the exercise of discretion by a trial Court unless it is clearly shown that the discretion was wrongly exercised.”
I cannot agree more. Lastly, the appellant has dwelt so much on his absence when his counsel adopted his written address at the trial Court. He argues that the lapse constitutes a breach of his right to be present in Court during trial.
It is long settled that a law Court in interpreting a statute will refrain from ascribing to the clear and unambiguous words that make up the statute their natural meaning if doing so will result in absurdity. See Awolowo V. Shagari (1979) 6-9 SC 51at 66 and Nigeria Arab Bank Ltd V. Comex Ltd (1999) 6 NWLR (Pt 608) 648.
In the case at hand where the presence of the appellant will in no way improve upon his case and his counsel who was present in Court did not object to adopting the address in the absence of the appellant, to ascribe the meaning the appellant counsel contends we should to Section 36 (6) (b) of the Constitution and nullify the entire proceedings of the trial Court will lead to absurdity. It must be stressed that the facts agitated in a case invariably give meaning to the law parties urge the Court to apply in the resolution of the dispute in which issues have been joined. The law does not give meaning to itself. To read Section 36 (6) of the 1999 Constitution in the manner learned appellant’s counsel urges by closing one’s eyes to the perculiar facts of this case is to let down the victim of appellant’s treacherous conduct. It is bad enough she has been raped. For the appellant to be allowed off the hook as counsel suggests will be a devastating and condemnable enthronement of technical justice which this Court does not indulge in. It is for the foregoing that appellant’s 3rd issue is also resolved against him and, as a whole, his unmeritorious appeal dismissed. The concurrent findings of appellant’s guilt by the two Courts below are hereby further affirmed.
WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have had the benefit of reading in draft, the lead Judgment of my learned brother, M. D. MUHAMMAD JSC just delivered.
I agree with his reasoning and conclusion that the appeal lacks merit and is hereby dismissed. I also agree that the concurrent findings of appellant’s guilt by the lower Courts be and are hereby further affirmed.
KUMAI BAYANG AKA’AHS, J.S.C.: My learned brother, Musa Dattijo Muhammad JSC made available to me in draft, a copy of his judgement just delivered. I agree with him that the appeal lacks merit and should be dismissed.
The appellant was alleged to have raped PW5 (the prosecutrix) for 3 consecutive days on 26, 27 and 28 October, 2010.Originally there were 13 counts in the charge with five accused persons, 3 of whom were said to be at large. The charge was amended and reduced to 10 counts. The 4th, 5th and 6th accused who were said to be at large were dropped and trial proceeded against the 1st, 2nd and 3rd accused. The 3rd accused is the appellant in this appeal. He was charged with rape in counts 8, 9 and 10 of the amended charge which read the same except the dates on which the rape occurred. Count 8 read as follows: –
“That you Salisu Mamuda on 26th day of October, 2010 at Kofar Nassarawa, Kano Municipal Local Government, within Kano Judicial Division did commit the offence of rape by doing an act to wit: you took one Hindatu Sani, a girl of 16 years of age and forcefully had sexual intercourse with her, and you thereby committed an offence punishable under Section 283 of the Penal Code”.
The prosecution called 5 witnesses who testified and tendered some exhibits. After the witnesses had been cross- examined and the case adjourned for defence, each of the accused persons made a no case submission which was overruled. Thereafter the 1st accused called two witnesses who gave evidence as DW1 and DW2. He himself testified as DW3 while the 2nd and 3rd accused gave evidence ad DW4 and DW5 respectively. The 3rd accused is the appellant in this appeal. At the end of the trial the learned trial Judge found the 1st and 2nd accused guilty of conspiracy, abduction and rape under Sections 97, 275 and 283 of the Penal Code, while the 3rd accused was found guilty of rape under Section 283 of the Penal Code. The 1st and 2nd accused were sentenced to six months imprisonment each and also 50,000.00 each for the offence of conspiracy under Section 97 of the Penal Codewhile appellant was given a higher sentence of 7 years for the offence of rape and a fine of N50,000.00. The sentences were to run concurrently and in default of payment of fine, each of the convicts was to serve six months’ imprisonment for each offence. Aggrieved by the decision, the appeilant appeared to the Court Appeal, Kaduna. All the issues raised were resolved against the appellant leading to the dismissal of the appeal. In the concurring judgement by Amina Audi Wambai JCA his Lordship stated at page 350 of the record:
“The argument canvassed by the learned counsel for the appellant that the evidence of the victim was not
corroborated and that there were contradiction in the prosecution’s case were considered and rightly rejected by the lower Court”.
The sordid act committed on the victim by the appellant and the ordeal which the victim was made to go through at the hands of the appellant and his other co-accused persons is to say the least, very unbecoming of the police officers whose statutory duty is to prevent the commission of crime while protecting the lives and properties of citizens.
By the evidence placed before the lower Court which the trial Court evaluated, the prosecution proved its case of rape under Section 282 of the Penal Code against the appellant. No reasonable course (sic) was shown by the appellant for this Court to interfere with or disturb that finding”.
There is concurrent findings of fact both by the trial Court and the lower Court on the issue of contradictory evidence. The appellant has an uphill task to convince this Court that the findings made the trial Court and affirmed by the lower Court are perverse and so have occasioned a miscarriage of justice before this Court can interfere with those findings. In the sister case of Inspector Dantalle Mohammed v. Kano State (2018) LPELR SC 801/2015, wherein the appellant was the 2nd accused while the appellant in the instant appeal was the 3rd accused, it was emphasized by EKO JSC that this Court will not unless under special circumstances, hear arguments seeking to disturb concurrent judgements of the Court below on pure questions of fact. See: Serbeh v. Karikari (1939) 5 WACA 34. The established policy of this Court is that it will not, for a third time, review the evidence unless special circumstances justify a departure from the practice. And none of the special circumstances have been shown to warrant any interference with the two judgements below. In the result, the appeal lacks merit and it is hereby dismissed.
JOHN INYANG OKORO, J.S.C.: I read before now the lead judgment of my learned brother, Musa Dattijo Muhammad, JSC just delivered. I am in total agreement with the reasons advanced and the conclusion that this appeal is devoid of merit and ought to be dismissed. Appellant’s assertion that the evidence of prosecution witness are contradictory is of no moment.Let me state clearly that a contradictory statement is a statement which states the opposite of what is being contradicted. A contradictory statement is an affirmation of the contrary of what was earlier stated or spoken. Thus for a statement to be contradictory it should be a direct opposite of what was earlier stated or spoken. See Dagayya v. The State (2006) LPELR – 912 (SC) p.26 paragraphs D – E, Ogoala v. The State (1991) LPELR – 2307, (SC) p.20 paragraphs B – C. The law is very clear that only grave and material contradiction (if any) which goes to the root of the case which can cause the evidence to tumble. Outside this, mere slant in the evidence of witnesses cannot be termed as contradictions. The two Courts below relied on the evidence of PW1, PW2 and PW3. I agree with the lower Court that rather than being contradictory, they corroborate each other. There is nothing placed before this Court to tamper with the concurrent findings of the two lower Courts that the appellant took part in raping the PW5 (the prosecutrix). This attitude and action of the appellant must be condemned by all right thinking persons.The appellant is a police officer. He is paid and maintained with public funds to protect members of the public. For him to have taken part in raping this innocent girl leaves much to be desired. I condemn his action in the strongest term. I endorse his conviction and sentence. This appeal lacks merit and is accordingly dismissedI affirm the judgment of the lower Court.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgement, which my Lord, Musa Dattijo Muhammad, JSC, just delivered. I agree.
Chief Gideon Musa Kuttu with him, S.S. Gomper, Sarah Farinto for Appellant|Mukhtar S. Daneji (S.G Kano) with him, Sanusi S. All (AG Director Citizens Right) and Rabi Shehu Ahmed (C.S.C. Kano) for Respondent|