SANI v. KANO STATE
(2020)LCN/15274(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, June 30, 2020
CA/KN/644C/2018
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
MUHAMMAD SANI APPELANT(S)
And
KANO STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE CARDINAL PRINCIPLE ON THE CONCEPT OF CRIMINALITY IS TO SAFEGUARD THE RIGHT SOF CITIZENS FROM BEING SUBJECTED TO ANY TRIAL OR CONVICTION AND SENTENCE EXCEPT FOR AN ACT WHIC CONSTITUTES AN OFFENCE
This is the cardinal principle of our concept of Criminality in this country, to safeguard the rights of citizens of this country from being subjected to any trial or conviction and sentence except for an act which constitutes an offence created by and punished under a written law at the time it was committed. This simply means that no person can be tried or convicted for any offence unless such offence is stated in a law and the punishment prescribed for the offence in a written Law.
However, the safeguard can only be called in aid and avail a citizen where the offence for which he is being tried or convicted and punished has not been created and punished by any written law of the land.
The word “defined’ in this Section, contrary to the Appellant’s argument, does not necessarily mean that the words or phrase used in the law or the offence must be defined. What is required is that the offence is provided for by a law enacted by an Act of the National Assembly, or a State House of Assembly, a subsidiary legislation or an instrument under the provisions of a law.
This provision has over the years, received concordant judicial interpretation. See – AOKO VS. FAGBEMI (1961) 1 ALL NLR 40; OGBOMOR VS. THE STATE (1985) 1 NWLR (PT.2) 223 AT 233; ASAKE VS. NIG. ARMY COUNCIL (2007) 1 NWLR (PT.1015); ALIYU VS. FRN (2014) ALL FWLR (PT. 720) 1272; AMADI VS. FRN (Supra). In OGUNDEJI VS. THE STATE OF LAGOS (2018) LPELR 46564 (CA) the Court held that in so far as the offences charged in counts 1-111 were laid down in Section 75 (1) of the Urban and Regional Planning and Development Law and Section 222 of the Criminal Code Laws of Lagos State, this is all that the law requires that an offence and its punishment must be prescribed in a written law. PER WAMBAI, J.C.A.
THE INTERPRETATION OF THE WORD “DEFINED”
The general and accepted interpretation of the word “defined’ therein is that the offence is “known” to law, or “has been prescribed by law” or “has been provided for by law” or any similar expression.
To interpret the provision in a very narrow and restrictive manner as the Appellant’s Counsel is wont to do, to mean that every word or phrase used in criminal offence must be defined by the penal law is not only fallacious but will result in many a penal provision becoming unconstitutional especially in the Criminal Code where many of the offences were not so defined. This will defeat the essence of the statute. The law is that when a Court is faced with a choice between a wide meaning which carries out what appears to have been the object of the legislature more fully, and a narrow meaning which carries it out less fully or not at all, the Court is enjoined to choose the former. In the memorable words of Udoma, J.S.C. in RABIU V. STATE (1980) &11 SC. 130 AT 14& 149. PER WAMBAI, J.C.A.
WHETHER OR NOT THE DUTY OF THE COURT IS TO INTERPRET LAWS OF THE LAND AND GIVE EFFECT TO THEM
Undoubtedly, the sacred duty of the Court is to interpret laws of the land and give effect to them and this includes penal statutes. See APC VS. INEC & ORS (2015) 8 NWLR (PT 1462) 531; NWALI VS. EBSIEC & ORS (2014) LPELR 23687 (CA). This is the traditional and constitutional role of the Court, as allotted to it by Section 6 (1) (2) & (6) of the 1999 Constitution (as amended), and in doing so, it is within the interpretative jurisdiction of the Court to construe words or phrases used in a provision of an enactment so as to bring out its meaning. ABDU RAHEEM VS. OLUFEAGBA (2006) 17 NWLR (PT 1008) 280, 355. PER WAMBAI, J.C.A.
WHETHER OR NOT TE COURT IS ENTITLED TO RESORT TO ANY MEANS OR AIDS IN INTERPRETING OR EXPOUNDING THE LAW
In interpreting and expounding the law, the Court is entitled to resort to any of the means or aids of interpretation that best suits the situation. One of such aids a Court can resort to, to ascribe meanings to words used in statutes is a dictionary, particularly a law dictionary. Law books may also be referred to see A.G.F VS. LAGOS STATE (2013) LPELR – 20974 (SC).
In A.G BENDEL STATE VS. AGBOFODOH & ORS (1999) 2 NWLR (PT 592) 476 Kutigi JSC (as he then was) endorsed the use of dictionaries as an aid in the interpretation of statutes. His lordship stated:
“It is for the Court to interpret the statute as best as (it) can. In so doing the Courts may no doubt assist themselves in the discharge of their duty by any literary help they can find, including of course the consultation of standard authors and reference to well- known and authoritative dictionaries …”PER WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Kano State High Court in Charge No. K/240C/2016 delivered on 21/12/2017 by HON JUSTICE NASIRU SAMINU wherein the Appellant was convicted of the offence of act of gross indecency punishable under Section 285 of the Kano State Penal Code (as amended). The charge against the Appellant to which he pleaded not guilty is that of rape punishable under Section 283 of the Kano State Penal Code (as amended).
The Charge reads:-
“That you Mohammad Sani male, Adult, of Tudun Wada Quarters Danbatta Local Government Area of Kano State. On or about 22/02/2016 at about 11:59 hours within the Kano Judicial Division committed an offence of Rape to wit; You lured One Asma’u Abubakar (Ummi) twelve (12) years old Girl into the house of one Sani Uba and had sexual intercourse with her at Kofar Kudu quarters Danbatta Local Government, and you thereby committed an offence punishable under Section 283 of the Kano State Penal Code (as amended)”.
The facts are that the Appellant, a security man, at Tudun Wada quarters, Danbatta Local Government used to give the prosecutrix, Asmau Abubakar, aged 12 years, some mangoes and sometimes food and fura on her way to school. The Appellant then lured her and had sexual intercourse with her at Kofar Kudu Quarters, Danbatta in the house of one Sani Uba. This took place about 5 times.
The prosecution called 5 witnesses and tendered 3 exhibits. The Appellant called 3 witnesses but tendered no exhibit. At the end of trial the Court found that the case of rape was not proved beyond reasonable doubt against the Appellant but found a case of act of gross indecency punishable under Section 285 of the Penal Code proved beyond reasonable doubt and accordingly convicted and sentenced him to 7 years for the offence of gross indecency.
Upset by the conviction and sentence, the Appellant filed a Notice of Appeal on the 12th March, 2018 predicated on 4 grounds.
In the Appellant’s brief of argument filed on 11/01/2019 but deemed on 25/03/2019, Usman Umar Fari Esq. who settled the brief identified 3 issues for the determination of this Court to wit:
1. WHETHER THERE WAS RELIABLE AND COGENT EVIDENCE BASED ON WHICH THE LOWER COURT CAN CONVICT AND SENTENCE THE APPELLANT?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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2. WHETHER THE LEARNED TRIAL JUDGE HAD JURISDICTION TO CONVICT AND SENTENCE THE APPELLANT UNDER SECTION 285 OF THE PENAL CODE?
3. WHETHER THE LEARNED TRIAL JUDGE OUGHT NOT TO HAVE SENTENCED THE APPELLANT TO THE MAXIMUM PERIOD OF 7 YEARS, CONSIDERING THE CIRCUMSTANCES OF THIS CASE?
These 3 issues were adopted by the Respondent in the Respondent’s brief of argument settled by Sanusi Ado Ma’aji, the Hon. Director Public Prosecutions (DPP), Ministry of Justice, Kano and filed on 02/06/2020 but deemed on 03/06/2020.
The Appellant filed a reply brief on 03/06/2020.
I shall determine this appeal on two issues; namely:
1. WHETHER THE LEARNED TRIAL JUDGE HAS JURISDICTION TO CONVICT AND SENTENCE THE APPELLANT UNDER SECTION 285 OF THE PENAL CODE.
2. WHETHER THERE IS ON RECORD CREDIBLE AND COGENT EVIDENCE TO SUSTAIN THE CONVICTION AND SENTENCE OF THE APPELLANT.
ISSUE 1: WHETHER THE LEARNED TRIAL JUDGE HAS JURISDICTION TO CONVICT AND SENTENCE THE APPELLANT UNDER SECTION 285 OF THE PENAL CODE
THE APPELLANT’S SUBMISSION
The contention of the Appellant’s Counsel on this issue is that the offence of gross indecency for which the Appellant was convicted and sentenced, falls short of the requirement of Section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in that though the Section provides for punishment, the offence itself is not defined by any written law: an Act of the National Assembly, State House of Assembly or any subsidiary legislation or instrument. That it is not the duty of the Court to define a charge or an offence as this Court did to the term “gross indecency” in the case of ALI VS. KANO STATE (2018) LPELR – 44201 (CA) but the duty is that of the drafters of the law who failed to do so for the term “gross indecency” used in Section 285 of the Penal Code.
He submitted that the Court can only resort to a Law Dictionary for definition of legal terms and phrases but not for definition of Criminal offences.
He concluded that where a Penal Law such as Section 285 of the Penal Code does not satisfy the dual requirements of Section 36 (12) of the Constitution, no Court of law can have jurisdiction to try and convict a person for violating the provisions of the law and that any conviction based on such law must be declared a nullity and quashed on appeal urging us to do so on the authority of the several cases he cited including FRN & ANR. VS. LORD CHIEF UDERNSI IFEGWU (2003) 15 NWLR (PT. 842) 113; TAWAKELITU VS. FRN (2011) ALL FWLR (PT. 561) 1413 and GEORGE VS. FRN (2013) LPELR 21895 (SC) 1718 F -G Per Fabiyi JSC.
RESPONDENT’S SUBMISSION
The Respondent’s Counsel posited otherwise. His position is that the said provision of Section 285 of the Penal Code has been amended and satisfies all the requirements of Section 36 (12) of the Constitution.
To support his stand, he reproduced the amended provision and urged us to discountenance the Appellant’s argument and resolve the issue in favour of the Respondent.
The Appellant’s Counsel insists in his reply brief that the amendment has not cured the fundamental defect inherent in the Section since the amendment does not define the act of gross indecency.
RESOLUTION OF ISSUE NO.1
The pith of the Appellant’s contention is that the trial Court had no jurisdiction to convict and sentence the Appellant under Section 285 of the Kano State Penal Code, the Section having not created any offence defined by any written Law of an Act of National Assembly or State House of Assembly or any subsidiary legislation or instrument, in contravention of Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Undoubtedly, by Section 36 (12) of the Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore, is prescribed in a written Law. The written Law here refers to an Act of the National Assembly or Law of the State, any subsidiary legislation or instrument under the provision of a Law. The requirements of this Constitutional provision are two, namely:- (i) the offence must be defined by a written Law, which term refers to an Act of the National Assembly; A Law of a State House of Assembly; any Subsidiary Legislations, or Instrument under the provisions of a law. (ii) The Penalty for the offence must be prescribed in a written Law, as aforestated. Therefore, for an offence to be valid, recognized by Law and enforceable, it must possess these two requisite elements.
This is the cardinal principle of our concept of Criminality in this country, to safeguard the rights of citizens of this country from being subjected to any trial or conviction and sentence except for an act which constitutes an offence created by and punished under a written law at the time it was committed. This simply means that no person can be tried or convicted for any offence unless such offence is stated in a law and the punishment prescribed for the offence in a written Law.
However, the safeguard can only be called in aid and avail a citizen where the offence for which he is being tried or convicted and punished has not been created and punished by any written law of the land.
The word “defined’ in this Section, contrary to the Appellant’s argument, does not necessarily mean that the words or phrase used in the law or the offence must be defined. What is required is that the offence is provided for by a law enacted by an Act of the National Assembly, or a State House of Assembly, a subsidiary legislation or an instrument under the provisions of a law.
This provision has over the years, received concordant judicial interpretation. See – AOKO VS. FAGBEMI (1961) 1 ALL NLR 40; OGBOMOR VS. THE STATE (1985) 1 NWLR (PT.2) 223 AT 233; ASAKE VS. NIG. ARMY COUNCIL (2007) 1 NWLR (PT.1015); ALIYU VS. FRN (2014) ALL FWLR (PT. 720) 1272; AMADI VS. FRN (Supra). In OGUNDEJI VS. THE STATE OF LAGOS (2018) LPELR 46564 (CA) the Court held that in so far as the offences charged in counts 1-111 were laid down in Section 75 (1) of the Urban and Regional Planning and Development Law and Section 222 of the Criminal Code Laws of Lagos State, this is all that the law requires that an offence and its punishment must be prescribed in a written law.
In the case of GEORGE VS. F.R.N. (supra) referred to but misconstrued by the learned Appellant’s Counsel whose facts are different from the facts of the present appeal, the offence for which the Appellant was convicted was unknown to law. He was convicted for disobeying a lawful order issued by a constituted authority, the circular issued by the National Executive Council. In allowing the appeal Fabiyi JSC, held inter alia:
”Disobeying Exhibit P3 (the circular) is not made an offence by Act of National Assembly or Law of a State House of Assembly or even the contents of Exhibit P3 itself. Even then, disobedience to Exhibit P3 is nowhere penalised in a written law”.
In the instant case, the offence of gross indecency for which the Appellant was convicted is provided for by Section 285 of the Kano State Penal Code Law (as amended) No. 20, Laws of 2014) enacted by the Kano State House of Assembly.
The section provides as follows:
Whoever commits an act or gross indecency upon the person of another; or
(a) Sexually harasses or causes fear by use of force or otherwise; or
(b) Threatens the person of failure in examination, promotion, admission or employment or cause pain to him or her in sexual advancement; or
(c) Persuades or compels a person to join with him or her in the commission of the offences listed in paragraphs (a) to (c) of this section, said to have committed an offence and shall be punished with imprisonment for a term of seven years for the first offence and for the second and subsequent offence, to imprisonment for fourteen years and shall be liable to a fine of Fifty Thousand Naira (N50,000) and in addition thereto be required by Court to pay compensation to the victim. Provided that a consent given by a person below the age of sixteen years to such an act when his care or education shall not be deemed to be consents within the meaning of this.
Obviously, the offence of act of gross indecency is an offence known to law under the Kano State Penal Code, above reproduced. It is an offence enacted and punishable by Section 285 of the said Penal Code whose ingredients as set out in the annotated Penal Code S.S. Richard Son are:
a. That the accused committed an act of gross indecency upon the person of another; (b) that the other person did not consent to the act; or (c) that the accused compelled that person by the use of force or threats to join him in the commission of the grossly indecent act.
What further proof is required to convince anyone that the offence of gross indecency is known to law and Section 285 creating and punishing the offence is fully in conformity with the dictates of Section 36 (12) of the Constitution, 1999 (as amended)?
The Appellant’s argument that because the Section does not define the phrase “gross indecency” the offence is not defined, is highly and totally misconceived. That cannot be the correct interpretation of the word “defined” in Section 36 (12).
The general and accepted interpretation of the word “defined’ therein is that the offence is “known” to law, or “has been prescribed by law” or “has been provided for by law” or any similar expression.
To interpret the provision in a very narrow and restrictive manner as the Appellant’s Counsel is wont to do, to mean that every word or phrase used in criminal offence must be defined by the penal law is not only fallacious but will result in many a penal provision becoming unconstitutional especially in the Criminal Code where many of the offences were not so defined. This will defeat the essence of the statute. The law is that when a Court is faced with a choice between a wide meaning which carries out what appears to have been the object of the legislature more fully, and a narrow meaning which carries it out less fully or not at all, the Court is enjoined to choose the former. In the memorable words of Udoma, J.S.C. in RABIU V. STATE (1980) &11 SC. 130 AT 14& 149. The learned Justice said:
“In my view this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation; unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution. I do not conceive it to be the duty of this Court to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
The Courts have chosen the wider and more purposeful meaning ascribed to the word “defined’ in Section 36 (12) to mean “known to law” “prescribed by law” “provided for by law” rather than the restrictive and narrow meaning ascribed to it by the learned Appellant’s Counsel.
His further argument, with respect to Counsel, that the duty of interpreting the offence is not the function of the Court but of the law maker is most untenable and totally misplaced.
Undoubtedly, the sacred duty of the Court is to interpret laws of the land and give effect to them and this includes penal statutes. See APC VS. INEC & ORS (2015) 8 NWLR (PT 1462) 531; NWALI VS. EBSIEC & ORS (2014) LPELR 23687 (CA). This is the traditional and constitutional role of the Court, as allotted to it by Section 6 (1) (2) & (6) of the 1999 Constitution (as amended), and in doing so, it is within the interpretative jurisdiction of the Court to construe words or phrases used in a provision of an enactment so as to bring out its meaning. ABDU RAHEEM VS. OLUFEAGBA (2006) 17 NWLR (PT 1008) 280, 355.
On this premise, it is really absurd to argue that it is not the duty or function of the Court to define penal provisions. Nothing can be further away from the truth. More often than not, it is the interpretive intervention by the Court that gives life to some provisions of statutes. To take away from the Court the duty of defining words or phrases in penal provisions is not only to render some provisions meaningless, but will also take away the primary function of the Court to decide questions of facts and law in accordance with the law laid down and expounded by the Courts. A.G.F VS. GUARDIAN NEWSPAPERS LTD & ORS (1999) 9 NWLR (PT618) 187.
In interpreting and expounding the law, the Court is entitled to resort to any of the means or aids of interpretation that best suits the situation. One of such aids a Court can resort to, to ascribe meanings to words used in statutes is a dictionary, particularly a law dictionary. Law books may also be referred to see A.G.F VS. LAGOS STATE (2013) LPELR – 20974 (SC).
In A.G BENDEL STATE VS. AGBOFODOH & ORS (1999) 2 NWLR (PT 592) 476 Kutigi JSC (as he then was) endorsed the use of dictionaries as an aid in the interpretation of statutes. His lordship stated:
“It is for the Court to interpret the statute as best as (it) can. In so doing the Courts may no doubt assist themselves in the discharge of their duty by any literary help they can find, including of course the consultation of standard authors and reference to well- known and authoritative dictionaries …”
This is what this Court did in the case of ALI VS. KANO STATE (supra) when it defined “act of gross indecency” in Section 285 of the Penal Code using the Blacks Law Dictionary. The sum total of what I have painstakingly been saying is that the offence of gross indecency in Section 285 of the Penal Code of Kano State (as amended) is an offence known to law and punishment for it prescribed by law. The decision of this Court in ALI VS. KANO STATE (supra) wherein this Court defined the phrase “act of indecency” not defined by the code does not make the offence unknown to law.
The case did not decide that the offence is unknown to law. Far from it, the Court only gave effect to the provisions of Section 285 of the Penal Code creating and punishing the offence of gross indecency and enforced same. That decision subsists and is binding on all parties and Court. Therefore, the trial Court has jurisdiction to try, convict and sentence the Appellant under Section 285 of the Penal Code for the offence of act of gross indecency. This issue No.1 is resolved against the Appellant and in favour of the Respondent.
ISSUE NO.2
WHETHER THERE IS ON RECORD CREDIBLE AND COGENT EVIDENCE TO SUSTAIN THE CONVICTION AND SENTENCE OF THE APPELLANT.
APPELLANT’S SUBMISSION
The substantiality of the Appellant’s argument on this issue is that the learned trial judge having found a material contradiction between the evidence of the prosecutrix, (PW1) in chief when she said the Appellant put his penis in her vagina but stated in cross-examination that the Appellant put his finger in her vagina on the basis of which the trial judge held that the offence of rape was not proved, the learned trial judge had no right to pick and choose between the two contradictory pieces of evidence to proceed to convict the Appellant for the offence of gross indecency. The only option is to reject both pieces of evidence as held in ZAKIRAI VS. MUHAMMAD (2017) 171 NWLR (PT. 1594) 181 Per Augie JSC; MAKAAN VS. HANGEM & ORS. (2018) LPELR 44401 (CA).
Further, that the learned trial judge could not pick and choose between contents of the Appellant’s Confessional Statements, Exhibits P1 and P3, to establish the offence of gross indecency having held that they did not establish rape. More so, that the proper procedure as set out in KAMILA VS. THE STATE LPELR 43603 (SC) was not followed in recording the statement. That the words of caution were not recorded in the language of the Appellant, Hausa Language and the IPOs not shown to be experts in Hausa language, but they served as both recorders and translators, beginning to question the credibility of the said Confessional Statements, Exhibit P1 and P3 – NWEDE VS. STATE; (2018) LPELR 43787.
Hence, he submitted, Exhibits P1 and P3 cannot corroborate the unreliable evidence of PW1. OBRI VS. THE STATE (1997) LPELR 2194.
That the Medical report (Exhibit P2) which bears the name of “Ummi Habu” has no bearing with this matter.
He also complained of excessive punishment that the learned trial judge did not exercise his discretion judicially and judiciously when he imposed sentence of 7 years on the Appellant who was over 70 years of age and had already spent 22 months in prison during trial.
In responding to the Appellant’s submission, the learned Counsel to the Respondent argued that the prosecution proved its case beyond reasonable doubt against the Appellant. That the contradiction in the evidence of PW1 as to whether the Appellant penetrated his penis in her vagina or used his finger in her vagina is only a minor discrepancy, bound to occur, and not material, citing the case ofDAGAYYA VS. STATE (2006) LPELR 192 – (SC). He referred to the evidence of PW1 in cross-examination to submit that since the Appellant was not convicted for rape but for gross indecency, the evidence cannot be considered contradictory, and even if so considered, is not material, thus, does not affect the credibility of PW1 as deemed in NASAMU VS. STATE (1979) 6 – 9 SC (PT 12) 116. He submitted further that an Appellant relying on the ground of appeal complaining of contradictions in the evidence of the prosecution witnesses, to succeed and have a reversal of judgment, must show not only that the contradictions are material, but also that the trial judge had not addressed the effect of such contradictions, but that the trial judge here analysed and evaluated the evidence before arriving at his decision. The cases of ENAHORO VS. QUEEN (1965) 1 ANLR 125, OMISADE VS. QUEEN (1964) ALL NLR 233 were cited in support.
On the Appellant’s submission that the trial Court could not pick and choose between the evidence of PW1 in chief and in cross-examination, it is Counsel’s contention that the trial judge could do so considering the fact that Section 217 of the Criminal Procedure Code (C.P.C.) empowers him to convict an accused person for the offence proved by evidence other than that with which he was charged.
He submitted, that the Appellant’s right has not been violated since his confessional statement was tendered without objection.
On the name of the victim on the medical report learned Counsel submitted that the name “Ummi” on Exhibit P2 is PW1’s nick name and “Habu” is the same as “Abubakar” her father’s name, moreover, objection having not been raised at the lower Court same can not be raised on appeal.
We were urged to dismiss the appeal.
RESOLUTION OF ISSUE 2
The Appellant was charged with the offence of rape punishable under Section 283 of the Penal Code. At the end of trial, the learned trial judge in his judgment, after evaluating the evidence, found there was uncertainty as to whether the Appellant put his penis in the vagina of PW1 as stated (in examination-in-chief) or used his finger in her vagina, (as testified to in cross-examination). The Court found the first ingredient of rape not proved beyond reasonable doubt, but found overwhelming evidence that the Appellant had sex with PW1 using his finger. The Court proceeded to invoke the provisions of Section 217 of the Criminal Procedure Code(C.P.C) to convict the Appellant for the offence of gross indecency.
The Appellant’s grudge is that the learned trial judge having found material contradictions in the evidence of the prosecutrix (PW1) who reversed herself, it is not proper to choose and Pick between her evidence in chief and in cross-examination or to rely on the confessional statements, Exhibits P1 and P3, upon which doubt has been cast by the evidence of PW1, and that the only option for him is to reject her evidence in its entirety.
Now, Section 217 of the C.P.C. pursuant to which the trial Court convicted the Appellant for gross indecency reads:-
“if in the case mentioned in Section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.”
A reading together of Sections 216 and 217 shows that where from a single or series of acts committed by an accused person it is doubtful which of the several (related) offences the facts which may be proved may constitute, the accused person may be charged with all such several offences or any or more of such offences or may be charged in the alternative. If pursuant to Section 216 the accused is charged with one (of such) offences but it appears in evidence that he committed a different offence which he might have been charged with, he may be convicted of the offence which the evidence reveals he has committed though not so charged.
In the instant case, the Appellant was charged with the offence of rape but at the end of trial the most important ingredient of rape penetration, was not proved.
The learned trial judge evaluated the evidence of PW1 and relied on her evidence in cross-examination, which he said the witness maintained in re-examination that the Appellant used (put) his finger in her vagina. He assessed that evidence with the medical report, Exhibit P2, which was admitted in evidence without objection. Exhibit P2 states that the girl (PW1) was sexually assaulted. Exhibit P2 supports the fact that PW1 was defiled.
There is no doubt from Exhibit P2 and the evidence of PW1 in cross-examination that she was defiled. Though the Appellant’s admission in Exhibits P1 and P3 that he had sexual intercourse with PW1 has been watered down by her evidence in cross-examination that the Appellant used his finger in her vagina, the medical report (Exhibit P2) evidences the fact of sexual assault on PW1. The offence of rape is only an aggravated offence of gross indecency which includes sexual assault.
An act of gross indecency denotes an aggravated assault that is grossly or grievously offensive in a vulgar or sexual way. It is an unlawful and unacceptable sexual activity or behaviour forced upon another person against his or her will or consent and includes the act of inserting one’s finger in the vagina of the other without that other’s consent or when she is legally incapable of giving her consent or against her will. In other words, act of gross indecency includes any unlawful sexual activity or behaviour short of penetration of the penis. It is the non proof of “penetration’ of the penis in the vagina that reduces the offence to gross indecency, which is an offence in the class of sexual assault. Both the aggravated offence of rape and the lesser offence of gross indecency share the ingredient of sexual assault or unlawful tampering with the female private part in absence of consent, which constitutes either the aggravated offence of rape or reduced or lesser offence of indecent assault otherwise known as gross indecency.
Therefore, it is my humble view that the contention of the Appellant’s Counsel that by relying on the evidence of PW1 in cross- examination and exhibits P1 and P3, the lower Court was choosing and picking between the two Pieces of evidence of PW1 and Exhibits P1 and P3 in the circumstance, is not correct. The principle of law against picking and choosing between two pieces of contradictory evidence does not apply here, the Appellant having not been convicted for rape but for a lesser offence which the evidence relied upon supports. Thus all the cases cited by the Appellant’s Counsel also do not apply.
By the very clear provisions of Section 217 of the C.P.C. earlier reproduced and or alternatively, sub section 2 of Section 218 (C.P.C.), where a person is charged with an offence and the facts proved reduces it to a lesser offence, he may be convicted of the lesser offence although he was not charged with that offence. The trial judge being satisfied that the aggravated offence of rape was not proved, relied on the other pieces of evidence on record and found the lesser offence of gross indecency proved, acting pursuant to Section 217 C.P.C. convicted the Appellant for the proved offence of gross indecency under Section 285 of the Penal Code.
On the submission that the words of caution and statement in both Exhibit P1 and P3 were not recorded in Hausa language which is the language of the Appellant as required by law, it is imperative that both Exhibits were tendered and admitted in evidence without any objection by the defence Counsel. The Law is that though it is desirable to record statements whenever practicable in the language of the maker by the Police Officer who is conversant with the language and is able to record the statement in that language so as to ensure correctness and accuracy, a statement is not ipso facto inadmissible merely because this practice was not followed. OLALEKAN VS STATE (2001) 18 NWLR (PT 746) 793, OSENI VS STATE (2011) 6 NWLR (PT.1242) 138, ADEYEMI V. STATE (2013) 3 NWLR (PT 1340) 78.
This is more so in the instant case where PW3 and PW4 who recorded Exhibits P1 and P3 respectively, in English language, were the same persons who interpreted same to the Appellant in Hausa Language.
Furthermore, the argument that Exhibit P2 (medical report) has no bearing with the case and ought not to have been relied upon because it bears a different name, “Ummi Habu”, from that of PW1, is a mere red herring. I say so because not only did PW5 in re- examination clarify the seeming difference that the victim of the offence is also referred to as “Ummi’ (see page 21 of the record), the Charge sheet as well as Exhibits P1 and P3 also refer to PW1 as “Ummi’ (in bracket). For the surname, it is a matter of common knowledge that “Habu’ or “Abu’ is the short name for “Abubakar”. There is thus no discrepancy in the name of PW1 as it appears on Exhibit P2 and in the Charge sheet.
All said and done, this issue is also resolved against the Appellant save for the question of the sentence imposed on the Appellant. In the Appellant’s 3rd issue, the Appellant challenged the sentence imposed by the trial Court, that it is excessive. His complaint is that imposing the maximum 7 years imprisonment in addition to the 22 months spent in prison awaiting trial amounts to sentencing the Appellant to 9 years. That the lower Court ought to have considered this fact and the age of the Appellant before sentencing the Appellant aged over 70 years to the 7 years maximum term.
I have given a due consideration to the age of the Appellant, the fact that he is a first offender and the almost two years spent in prison during trial. Accordingly, in exercise of the powers vested in this Court by Section 19(3) of the Court of Appeal Act, 2004, to reduce or increase sentence imposed by the trial Court in appropriate cases where the interest of justice would be better served, see ODEH VS FEDERAL REPUBLIC OF NIGERIA (2008) 13 NWLR (PT. 1103) 1 per Musdapher JSC (as he then was), I reduced the sentence of 7 years imprisonment to 5 years imprisonment commencing from the date of his first detention in prison custody during trial.
The result is that the appeal succeeds in part.
Consequently;
1. The conviction of the Appellant by the lower Court is affirmed;
2. The sentence of 7 years imprisonment is reduced to 5 years imprisonment effective from the date of his first detention in prison custody during trial.
These are the Orders of this Court.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading judgment of my learned brother Wambai JCA just delivered and I agree with his reasoning and conclusion. On the facts, the trial Judge was entitled to convict the Appellant for the offence of gross indecency, even though the charge against him was rape. Section 217 CPC. On the sentence, the record shows that the Appellant was about seventy years at the time of conviction and sentence. That the fact that he is a first offender and was not on bail during his trial which lasted for about two years, are factors that may be considered in the sentence to be meted out. I am also aware, that the offence is reaching an alarming rate in our society and therefore drastic measures need to be taken as deterrent to others. I therefore also subscribe to the reduction of the sentence from the seven year maximum to five years from the day he was arrested and detained. I so order.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein. I only wish to comment on one of the contentions of the Counsel to the Appellant.
The Appellant was charged with the offence of rape under Section 283 of the Penal Code of Kano State. At the conclusion of trial, the lower Court convicted the Appellant of the lesser offence of gross indecency under the provisions of Section 285 of the Penal Code of Kano State. Counsel to the Appellant contended in this appeal that the offence of gross indecency as contained in the Penal Code of Kano State fell short of the provisions of Section 36 (12) of the Constitution of the Federal Republic of Nigeria because the Penal Code did not define the term “gross indecency”. Counsel submitted that since the offence of gross indecency as provided for under Section 285 of the Penal Code of Kano State is not defined, the Section inconsistent with the provisions of the Constitution, it is null and void and no Court of law should convict any person under that Section of the Law.
Now, Section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999 provides:
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”
Section 285 of the Penal Code Law of Kano State (as amended) reads:
“Whoever commits an act of gross indecency upon the person of another; or
(a) Sexually harasses or causes fear by the use of force or otherwise; or
(b) Threatens the person of failure in examination, promotion, admission or employment or cause pain to him or her in sexual advancement; or
(c) Persuades or compels a person to join him or her in the commission of the offences listed in paragraphs (a) to (c) of this Section shall be said to have committed an offence and shall be punished with imprisonment for a term of seven years for the first offence and for the second and subsequent offence, to imprisonment for fourteen years and shall be liable to a fine of Fifty Thousand Naira (N50,000) and in addition thereto be required by Court to pay compensation to the victim.
Provided that a consent given by a person below the age of sixteen years to such an act when done by his teacher, guardian or any person entrusted with his care or education shall not be deemed to be consent within the meaning of this section.”
A reading of the above provisions of Section 285 of the Penal Code Law of Kano State shows that it provides for the offence of gross indecency and it prescribes the penalty for it and the Penal Code Law is part of the written laws of Kano State. A law is said not to be defined where it is vague, ambiguous, imprecise and unclear as to its meaning. In the American case ofFederal Communications Commission Vs Fox Television Stations 132 S.CT. 2307, the Court put the point thus:
“A fundamental principle in our legal system is that laws which regulate persons and entities must give fair notice of conduct that is forbidden or required. See Connally V General Construction Co 269 US 385, 391 (1926) (‘A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law’): Papachristou V Jacksonville 405 US 156 (1972) (‘Living under a rule of law entails various suppositions, one of which is that all persons are entitled to be informed as to what the State commands or forbids …) This requirement of clarity of regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment… It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standard less that it authorizes or encourages seriously discriminatory enforcement. As this Court has explained, a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved… Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discreet due process concerns: first, that regulated parties should what is required of them so that they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way…”
Now, it is settled law that in the interpretation of statutes, a Court must not give an interpretation that would defeat the intention and purpose of the law makers, and it should adopt a holistic approach and interpret the provisions dealing with a subject matter together to get the true intention of the law makers- Abia State University, Uturu Vs Otosi (2011) 1 NWLR (Pt 1229) 605, Ayodele Vs State (2011) 6 NWLR (Pt 1243) 309, National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170, Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (Pt 1380) 249.
Reading the provisions of the Penal Code Law of Kano State, Sections 282 to 285 come under the heading “Rape, Unnatural and Indecent Offences against the Person”. Section 282 and 283 deal with rape while Section 284 deals with unnatural carnal intercourse and Section 285 deals with other indecent offences. When the provision of Section 285 of the Penal Code is read in the context of Sections 282, 283 and 284, can it be said it does not give a fair notice of conduct that is forbidden or that it fails to provide a person of ordinary intelligence fair notice of what is prohibited? The obvious answer is, No. It is clear that it covers all acts of sexual indecency and sexual harassment against any person under the age of fourteen years in all cases, and under the age of sixteen years, where the perpetuator of the act is the teacher, guardian or any person entrusted with the care or education of the victim.
The contention of the Counsel to the Appellant was predicated on semantics and the dictionary meaning of the word “define” used in Section 36 (12) of the Constitution. Dictionaries supply possible meanings of particular words, but provide little or no assistance in determining the meaning that the drafter of a document actually intended. Language is inherently imprecise, especially at the “penumbra” as Professor Hart described it in his article titled “Positivism and Separation of Law and Morals” published in 1958 Edition of the Harvard Law Review 593 at 607. Words and phrases can bear multiple meanings. Indeed the very same sentence could bear contradictory meanings depending on whether it was expressed sincerely or sarcastically. As a result, the process of ascertaining meaning by relying on the dictionary alone can be iterative in nature and can be frustrating more than illuminating.
Let me illustrate the point with the example which Professor Hart put forward in his article: a law that says: “No vehicle shall be allowed in the park”. According to the Oxford Dictionary, a vehicle is a “thing used for transporting people or goods, especially on land”. On this definition, cars, trains and other instruments used to carry people or goods on land would all equally qualify as “vehicles”. Thus, it might be concluded that prams used for carrying babies were banned from the park. But few would understand the rationale for such a rule. This is why the purpose and the context in which words are found are of paramount importance in assessing what meaning is to be ascribed to them- Ashibuogwu Vs Attorney General, Bendel State (1988) LPELR 578(SC).
As rightly stated in the lead judgment, the way the word “define” as used in Section 36 (12) of the Constitution has been interpreted in the context is that it means that person shall not be punished for an offence that is unknown to law or not provided for by law or not prescribed by law. The offence of gross indecency is known to law, it is provided for by law and it is prescribed by law. The provision of Section 285 of the Penal Code Law of Kano State is not inconsistent with the provision of Section 36 (12) of the Constitution of the Federal Republic of Nigeria.
It is for these reasons and the fuller exposition of the law in the lead judgment that I too find merit in this appeal only in a limited part, i.e. on the length of the sentence. I hereby dismiss the appeal save for in that limited part. I affirm the judgment of the High Court of Kano State delivered in Charge No K/240C/2016 by Honorable Justice Nasiru Saminu on the 21st of December, 2017 as well as the conviction of Appellant, but not the sentence passed on him therein. I agree that the sentence be reduced to five years imprisonment as directed in the lead judgment.
Appearances:
USMAN UMAR FARI, ESQ., with him, SANI MUSTAPHA DAUDA, ESQ., SALIHU SANI SALIHU, ESQ., ABUBAKAR SULEIMAN, ESQ., and BASHIRU IBRAHIM, ESQ. For Appellant(s)
SANUSI ADO MA’AJI, PUBLIC PROSECUTION with him, AUWALU USMAN USMAN For Respondent(s)
