TUNDE OJOLADE v. THE STATE
(2019)LCN/13101(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of April, 2019
CA/K/405/C/2017
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
TUNDE OJOLADE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHER OR NOT AN ACCUSED CHARGED WITH ONE OFFENCE CAN APPEAR IN EVIDENCE TO HAVE COMMITTED A DIFFERENT OFFENCE
Section 217 of the Criminal Procedure Code Law has crystallized into Judicial authority to the effect that where an accused is charged with one offence but appears in evidence that he committed a different offence for which he might have been charged he may be convicted of the lesser offence which he is shown to have committed by the evidence, regardless of the fact that he was not charged with the particular offence. See Odeh v. FRN (2008) 13 NWLR (Pt. 1103) 1 at 23, Musa vs State (2014) LPELR ? 24026 (CA) Simon vs State (2014) LPELR-23994 (CA).
The lower Court acted within the law in convicting the appellant under S.283 of the Penal Code Law, even though charged under S. 285(B) of the Penal Code (Miscellaneous Amendment) Law No 9, 2014, Laws of Jigawa State. PER ABUNDAGA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Jigawa State High Court, presided over by Hon. Justice A. M. Abubakar delivered on 3rd March, 2017 in suit No. JUD/116c/2016. In the said Judgment, the accused person (now ?Appellant?) was convicted of rape contrary to and punishable under Section 283 of the Penal Code Law.
The appellant was initially arraigned on a single count charge of rape contrary to Section 282 (1) (e) and punishable under Section 283 of the Penal Code Law; Cap. P3, Laws of Jigawa State, 2012 (as amended). The appellant pleaded not guilty and the Court went into trial. In the course of the trial, and to be specific after the testimony of the appellant who testified as DW1, the prosecution applied to amend the charge. The application was not opposed. The amended charge thus read:
That you, Tunde Ojolade ?M? of Zango Quarters, Birnin Kudu Local Government Area, Jigawa State, on or about the 26th day of September, 2014 at Zango, Zango Quarters, Birnin Kudu Local Government Area, Jigawa State, within the Jigawa Judicial
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Division, Committed an illegal act when you had sexual intercourse with one Hajara Sunusi ?F? aged 9 years as a result of which you infected her with HIV AIDS. You thereby committed the offence of rape contrary to Section 285B of the Penal Code (Miscellaneous Amendment) Law. No 9, 2014, Laws of Jigawa State?.
The appellant who had earlier pleaded ?Not guilty? to the earlier charge, pleaded ?Not guilty? to the amended charge.
In proof of the charge the prosecution called Five witnesses, including the prosecutrix, and tendered 4 documentary Exhibits. The accused person testified in his defence and called one witness.
The prosecution and the defence submitted written addresses which they subsequently adopted. The Court, hereafter to be referred to as ?the lower Court? as ?the trial Court? interchangeably, in its Judgment convicted the appellant under Section 283 of the Penal Code Law, and sentenced him to life imprisonment. The appellant is aggrieved with the Judgment of the lower Court and filed a Notice of appeal containing five grounds of appeal. By an application granted on
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5/6/18, an Amended Notice of appeal containing 4 grounds of appeal was filed on 11/6/18. The amended grounds of appeal are hereunder reproduced, but without their particulars:
?GROUND ONE
The trial Court erred in law when it purportedly convicted the Appellant under a charge not before it.
GROUND TWO
The trial Court erred in law where it held thus:
?In this regard therefore, this Court hereby disregards the evidence adduce by the defence as unreliable in the face of the confessional statement admitted.?
GROUND THREE
The trial Court erred when it held thus:
?So the fact that Exhibit R4 was freely admitted is deemed admitted. And of course, the content therein left no one in doubt that the hymen of the prosecutrix was torn and or not intact. Suggestive, if not, conclusive of penetration.?
GROUND FOUR
The trial Court erred in law when it held it had no discretion to exercise while sentencing the Appellant contrary to the applicable provision of law.?
On the compilation and transmission of the record of appeal to this Court, briefs of argument were filed. The
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appellant?s brief of argument was also amended. The appellant?s Amended Brief of argument was settled by Muhammed S. Katu, who therein distilled three issues for determination. The issues are:
?(1) Whether the prosecution proved the charge of rape as provided for under Section 285B of the Penal Code (Miscellaneous Amendment) Law, No 9, 2014, Laws of Jigawa State.
(2) Whether the lower Court was right to have convicted the Appellant under a charge that the provision has been withdrawn.
(3) Whether the lower Court was right to hold that Exhibit R4 corroborated the key ingredient for the offence of rape.?
Mr Musa M. Imam (Director of Public Prosecution (DPP) who settled the Respondent?s Brief of argument formulated two issues (though joined together as one issue) for determination of the appeal thus:-
?Whether the prosecution proved its case beyond reasonable doubt at the Lower Court and whether the Judge was right to have convicted the Appellant to life imprisonment under Section 283 of the Penal Code as amended by Section 3 of the Penal Code (Miscellaneous Amendment) Law, 2014?.<br< p=””
</br<
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Before I decide on what issues can comprehensively dispose of this appeal, I find it necessary to point out what I believe is an error in the Appellant?s issue one.
It is clear that even though the appellant was charged under Section 285B of the Penal Code, (Miscellaneous Amendment) Law, No 9, 2014, Laws of Jigawa State (being the amended charge) the lower Court in its Judgment convicted the Appellant of the offence of rape under S. 283 of the Penal Code Law. The constituent elements for the offence of rape under the two sections are the same, the slight difference being that for rape under Section 285B of the Penal Code Law, it must be further proved that in consequence of the rape the prosecutrix was infected with HIV/Aids. Therefore, issue one of the Appellant?s issues ought to be directed to whether the prosecution proved rape under Section 283 of the penal Code.
In my humble view, the following lone issue is comprehensive enough to dispose of this appeal:
?Whether the prosecution proved rape contrary to Section 283 of the Penal Code beyond reasonable doubt?
The offence of rape punishable under
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Section 283 of the Penal Code Law is defined in Section 282 (1) of the Penal Code Law, which provides thus:
?A man is said to commit rape who save where he had sexual intercourse with a woman 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 hurt.
(d) With the 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 believes herself to be lawfully married.
(e) With or without her consent when she is under 18 years of age or of unsound mind. See Ezegbo vs State (2012) All FWLR (Pt. 682) 841.?
It has been contended by the Appellant that the charge was not proved beyond reasonable doubt. That indeed is the import of counsel?s submission on his first issue when he concluded that the charge was not proved. On the other hand, counsel to the respondent submitted on his issue one to the effect that the prosecution proved its case beyond reasonable doubt.
?The law has long been settled by Judicial
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pronouncements and statutory provision that criminal offences must be proved beyond reasonable doubt and that where in a criminal case doubts exist as to the guilt of an accused person, the doubt must be resolved in favour of the accused person. See S.135 (1) of the Evidence Act, 2011. See also Onafowokan vs State (1987) LPELR-2666 (SC). Proof beyond reasonable does not connote proof beyond a shadow of doubt.
Therefore the proof or other wise of the ingredients of the offence for which the Appellant was convicted will be considered against the background of the aforesaid standard and burden of proof.
?The appellant?s counsel submitted that the Judgment of the trial judge is full of misconceptions of the Law, contradictions and approbation. He submitted that there is no confessional statement to back up the Court?s conviction. In other words, he rejected Exhibits R1 and R2 as confessional statements. That Exhibit R2, the translation of Exhibit R1 recorded in hausa language has no Jurat. It was further submitted that Exhibit R2 is not conclusive of the facts it sought to establish. Further submission is that there are contradictions as to
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date between Exhibit R2 and the evidence of the witnesses, and the content of the evidence of the prosecution witnesses. It was submitted that there is no confessional statement on which the Court relied to convict and sentence the appellant. It was further submitted that Exhibit R2, being the translation of Exhibit R1 (the statement of the appellant) recorded in hausa language has no jurat and thus should not be relied upon by the Court. That Exhibit R2 is not conclusive of the facts it sought to establish. That it was therefore erroneous for the lower Court to find that Exhibit R2 was a confessional statement. Learned counsel contended that Exhibits R1 and R2 did not mention the name of the prosecutrix, and that Exhibit R1 was made on 2nd September, 2014 more than 3 weeks before the date of the commission of the offence.
Learned counsel referred the Court to pages 86-87 of the record of appeal wherein the lower Court rejected the evidence of PW2 and that having thus rejected that piece of evidence it ought to have thrown out the case, since according to him, PW2, being the complainant was the foundation of the case. He further pointed out that the
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evidence of PW3 which the lower Court relied on to reject the evidence of PW2 was also rejected. Counsel was therefore at a loss as to how and why the lower Court relied on the evidence of PW1. It was thus the submission of counsel on behalf of the appellant that the contradictions are material and ought to have been resolved in favour of the appellant. He relied on Enahoro v. State (1965) NSCC (Vol.4) P. 98 @ 113, (1965) 1 ALL NLR 25 and Uwaekweghinga v. State (2005) 4 ACLR, @ 19 Paras 30-35.
On the evidence of the Prosecutrix (PW 4), it was submitted for the appellant that her evidence was extracted under threat. He also found the omission of time in the charge fundamental. He also went on to submit that the lower Court cannot choose which evidence to believe, and which not to believe. Reliance was placed on Sani v. State (2015)15 NWLR (Pt. 1483) 522 @ 550 paras B-D. He also relied on Dariye v. FRN (2015) 10 NWLR (Pt. 1467) 325 @ 350 paras E ? F where the Court held that where there is a mistake in the particulars of a charge, the whole proceedings is liable to be quashed at the end of the trial. He faulted the evidence given or adduced in
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support of the ingredient of infecting the Prosecutrix with Hiv/Aids and submitted that the appellant ought to have been acquitted of the charge against him.
The Appellant?s issue two (2) dwelt on the question of the appellant being convicted on a charge other than that for which he was charged. It was submitted that the action of the lower Court amounted to the Court arrogating to itself the role of the Prosecutor and Judge at the same time and it offended the provision of Section 36 (8) of 1999 Constitution of the FRN (as amended), and relying on the case of Adeoye v. The State (1999) 4 SC (Pt. 11) 67 @ paras 15 ? 20, he urged the Court to declare the lower Court?s judgment a nullity.
The sentence was also faulted by learned counsel who submitted that Section 283 of the Penal Code Law stipulates a minimum sentence of Three years and a maximum sentence of life imprisonment, which is not mandatory. He further contended that the Appellant was a first offender. The submission was that the lower Court exercised its discretion capriciously instead of doing so judicially and judiciously. He referred to the case of
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Kalu v. The State (1988) 10-11 SC 19 @ paras 30-40.
In his submission on Issue three of appellant?s brief, the appellant?s Counsel faulted the lower Court?s decision to have found corroboration for the offence of rape in Exhibit R4. It was submitted that the evidence of PW5 was inconclusive since she stated therein that the result of the HVS she conducted was still being awaited, coupled with her further evidence that she could not for sure say what penetrated the Prosecutrix?s vagina. It was therefore submitted that the appellant ought to have been acquitted, reliance placed on the case of Upahar v. State (2003) 6 NWLR (Pt. 816) @ 235.
On the whole, we were urged to hold that the lower Court was in error in convicting the appellant.
The Respondent?s starting point is on the need for the appellate Court to be slow in disturbing the findings of the lower Court unless the said findings are found to be perverse, reliance being placed on BFI Group Corporation v. BFE (2012) ALL FWLR (Pt. 676) 444 @ 456-457. The case of Tajudeen Iliyasu v. The State (unreported). Suit No: SC.241/2013 was also referred to. It was submitted that all
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the ingredients of the offence have been established from the evidence of the Prosecution witnesses, and urged the Court to so hold, submitting that proof beyond reasonable doubt is not proof beyond every shadow of doubt, as it is impossible to have absolute certainty in any human endeavor. Counsel relied on a number of cases including Okoh v. State ALL FWLR (Pt. 736) 443 @ 448 (SC), Bakare v. State (1987) 1 NWLR (Pt. 52) 579, Ajayi v. State (2014) ALL FWLR (Pt. 711) 1457 @ 1464 (SC), Adeleke v. State (2014) ALL FWLR (Pt. 722) 1652 @ 1655; Nasiru v. State (1999) 1 SCNJ 83.
Respondent?s Issue Two dwelt on the propriety of convicting the appellant under Section 283 of the Penal Code Law that was amended. It was contended for the Respondent that under Section 217 of the Criminal Procedure Code Law that if an accused person is charged with an offence which appears in evidence that he committed a different offence that he might have been charged under the provision of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it. It was further submitted that the Court was unable to find
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sufficient evidence on the amended charge that related to the offence of the prosecutrix being infected with Hiv/Aids by the appellant (reference being made to page 98 of the record) and therefore the Court resorted to S. 217 of the CPC Law to convict under Section 283. We were urged to dismiss the appeal.
Understanding the role of this Court as an Appellate Court is key to a just determination of this appeal. And I find it instructive to state that the adjudicatory function of an Appellate Court is to correct errors of trial Court, and as long as errors emanate from the record, an Appellate Court cannot be accused of substituting its own views for those of the trial Court. This must necessarily involve reviewing the decision of the trial Court in the con of the law and the facts. See Adetoun Oladeji (Nig) Ltd v. Nigerian Breweries PLC (2007) LPELR-160 (SC). In doing so however, the appellate Court is not permitted to disturb the findings of the lower Court unless those findings are perverse or are unreasonable having regard to the circumstances and evidence adduced during the trial. I refer on this to the case of BFI Group Corporation v. BPE (supra)
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cited by the respondent?s counsel. See also Adegoke v. Adibi & Anor (1992) LPELR-95 (SC), CPC & Anor v. Ombugadu & Anor (2013) LPELR-21007 (SC).
The appellant has in his submissions referred to specific areas in which he concluded that the lower Court was in error.
It is my considered view that those issues must be addressed first. There were Contradictions pointed out which I have earlier highlighted elsewhere in this judgment. I must say that I find it strange that the learned counsel, who settled the respondent?s brief of argument did not deem it necessary to respond to those issues. He thus exposed the Respondent to conclusions which this Court is ordinarily entitled to reach in law, which is, that he is deemed to have conceded those issues. See FRN v. Saraki (2017) LPELR-43392 (CA), Fulani M. v. State (2018) LPELR-45195 (SC), Nwankwo v. Ors v. Yar?adua & Ors (2010) LPELR-2109 (SC).
Be that as it may, the interest of justice dictates that the issues are considered on their merits. Counsel did not consider Exhibits R1 and R2 as Confessional Statements because like Exhibit R1 which the Court rightly
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rejected, those Exhibits do not also have jurat: Exhibit R1 is the Hausa version of the statement of the accused/appellant, while Exhibit R2 is the English translation. Counsel expects both Exhibits to contain jurats. The first remark I have to make is that the statement of an accused person is not inadmissible merely because it is taken down in a different language other than the language of the person making it. See Olalekan v. The State (2001) LPELR-2561 (SC).
Secondly, because the lingua franca in Nigeria, is English language and by extension the language of our Courts, it is not only desirable but it is necessary that a statement of an accused person recorded in vernacular should have its own English translation. See Nwali v. The State (1991) LPELR-2098 (SC). These authorities validate the admissibility of Exhibits R1 and R2 in evidence, and justifies my rejection of the submission of the appellant?s counsel on the issue of Exhibits R1 and R2.
On the same Exhibits R1 and R2, it was submitted for the appellant that it did not mention the name of the prosecutrix. This submission totally lacks substance. The statement made by the
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accused/appellant cannot be considered in isolation from the time the complaint was lodged against him to the police and his arrest and detention. That evidence is before the Court as can be gleaned from the record of the lower Court. Reference by the appellant in his statement to the girl was a clear reference to the prosecutrix on whose account he was detained at the police station. The appellant?s statement cannot stand alone and when it is considered in the con of the totality of this case, especially in the light of the vivid account/details in the said statement, the impotence in the submission of counsel is profoundly exposed. The other issue raised by counsel relates to the date on which the statement was allegedly made as stated in Exhibit R1. There is a close relationship between the date in Exhibit R1 and the evidence of PW1 and PW2 on the issue of the date of commission of the offence and when it was reported to the police. Learned counsel to the appellant referred to pages 86-87 of the record of appeal. PW2 gave the date of the incident as 19/09/2014, PW3, the IPO who received the complaint told the Court that it was on the 27/9/2014
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that he received the complaint in which the offence was allegedly committed on 26/09/2014. As clearly in evidence undisputed, it is from the Divisional Police Headquarters that the case was transferred to the state CID. PW1?s evidence is as to what happened at the State CID. To that, he testified that the case was transferred to the State CID on 02/09/2014. Now this should be related to the evidence of PW5 (the doctor) who examined the Prosecutrix and the accused/Appellant. According to her, while on duty at the FMC on 28/09/14 at about 11:00am, the prosecutrix and the accused (appellant) were taken to her for investigation. That she was informed that the incident happened 48hrs before presentation to her. She told the Court that she issued a medical report (Exhibit R4) which further confirms that the prosecutrix and the accused/appellant were presented to her for investigation on 28/9/2014, with further information that the prosecutrix was sexually assaulted more than 45hrs before presentation. My duty as an Appellate Court Judge is to review the totality of evidence of what happened at the lower Court and correct errors in law and/or wrong
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conclusions. If all these pieces of evidence are put together, it will be manifest that what appellant?s counsel considers as fundamental contradictions are mere mix up and/or of loss of memory. Contradictions that will affect the prosecution?s case or affect the decision of a Court are those that are serious, material or sufficient to create doubt in the mind of the Court as to the guilt of the appellant. Minor or miniature contradiction which did not affect the credibility of witnesses may not be fatal. Certainly, trivial, Contradictions should not vitiate a trial. See Uche v. State (2015) LPELR-24693 (SC), Musa v. State (2009) LPELR-1930 (SC), Faleye v. State (2012) LPELR-20429 (CA). As can be seen, none of the so called contradictions has touched on whether or not the accused/appellant committed the offence. I therefore reject the submissions of learned appellant?s counsel on the materiality of the so called contradictions he placed so much premium on.
?Appellant?s counsel made an issue out of the evidence of the prosecution that PW2 threatened to beat the prosecutrix if she did not disclose the name of the person who gave
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her the money she was found with. On that basis it was submitted that the evidence of PW4 in which she identified the accused/appellant as the person who raped her was extracted out of threat and should not have been relied on by the lower Court. This submission does not deserve much attention by this Court except to state that a threat to the prosecutrix to name the person who gave her money presupposes that as at then the appellant had not come into the picture and the prosecutrix was yet to even disclose that she was raped. This submission is therefore lacking in common sense.
Learned counsel to the appellant also faulted the non-inclusion of the time the offence was committed in the charge. He cited cases which I have earlier referred to. While it is desirable to state date and time in a charge, the non-inclusion of the actual time as in the hour of the day the offence was allegedly committed is an irregularity that cannot vitiate a trial. In my view, the time required to be stated in a charge is with reference to the day the offence was committed, not the hour of the day. See Tijani Shehu v. State (2010) LPELR-3041 (SC). In any case, the appellant
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was not misled, for if he had he would have objected.
Next the appellant picked on the evidence of PW5 and the medical report (Exhibit ?R4?) that was tendered through her. It was submitted for the appellant that Exhibit R4 did not in any way corroborate the evidence of PW4 nor help the case of the respondent. Counsel?s submission is that the evidence of PW5 is repugnant to medical logics reasons and opinions. That it is not possible that Hiv/Aids virus could be detected in the victim?s body within 48hrs of contact. I think it is unnecessary to dissipate energy and time on Exhibit R4 in relation to the issue of infection with the Hiv/Aids virus since the conviction and sentencing of the appellant was under Section 283 of the Penal Code Law and not Section 285B of the Penal Code Law which requires proof that the prosecutrix was in consequence of the rape infected with the Hiv/Aids virus.
However, the evidence of PW5 and Exhibit R4 produced/generated by her to my mind are not relevant in respect of the alleged infection of the prosecutrix with the Hiv/Aids virus. The learned counsel to the appellant complained of the lower Court
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using Exhibit R4 and the evidence of Pw5 to corroborate the evidence of PW4. He submitted that Exhibit R4 and the testimony of PW5 did not in any way corroborate the evidence of PW4 nor help the case of the Respondent. In order to determine whether indeed Exhibit R4 and the evidence of PW5 corroborate the evidence of PW4, it is important to sieve through the evidence of PW4 to see whether it proves anything which Exhibit R4 and the evidence of PW5 could or could not corroborate. PW4 is the prosecutrix, the victim of the crime. At the time of her testimony she was by her uncontradicted evidence a minor. Even though from the preliminary questions put to her to assess her capacity to testify on the matter, she proved herself to be possessed of profound intellect to testify on oath, she did not testify on oath. Therefore her evidence no doubt requires corroboration, more so, being a rape charge to which the appellant pleaded not guilty. In her evidence the PW4, gave a vivid account of what transpired between her and the appellant, and how she was raped by the appellant who in the process inserted his penis in her vagina and that it caused her pain and that she in
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fact cried out. She was not shaken under cross examination, and when on the application of the appellant?s counsel the Court visited the locus in quo, she showed the Court where the rape took place. She also showed the Court the exact location of their erstwhile house and that of the appellant.
As convincing as this evidence sounds, it requires corroboration as a matter of practice even if she had given a sworn testimony. See Afor Lucky v. State (2014) LPELR-24441 (CA), Posu v. State (2011) LPELR-1969 (SC). This is where the consideration of the evidence of PW5 and Exhibit R4 comes in.
In her evidence in-chief PW5 (Dr. Lawal Raheem Kolawole) told the Court that when she examined her even though there was no evidence of body injury, there was bruises around her vagina. She further testified that the vaginal area was hyperemic (redness of the area), an indication that something had entered the vagina. She was not in a position to say whether it was a penis or something else. The medical report (Exhibit R4) was given two days later. The contents of the report dated 30th September, 2014 replicates exactly the prosecutrix?s evidence in
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chief. It will be standing truth on its head if, by reference to the evidence of PW5 that she was not sure whether what penetrated the prosecutrix?s vagina was penis or something, it is contended that the evidence is not conclusive that the prosecutrix was not raped or that PW5?s evidence and Exhibit R4 put together did not corroborate the evidence of the prosecutrix that she was raped. Even though the result of the HVS investigation ordered by PW5 was yet to be received as at the time of her testimony, it did not compromise her evidence of suggested rape. This is because the offence of rape is complete even on the slightest penetration of the vagina without the offender having released (that is without evidence of sperms). In the case of Shuaibu Isa v. Kano State (2016) LPELR-40011 (SC), it was thus held:
?It is settled that sexual intercourse is deemed complete, upon proof of penetration of the penis into the vagina. It was held in the English case of R. V. Marsden (1891) 2 QB 149 @ 150 per lord Coleridge, CJ that emission is not a necessary requirement. Our Nigerian Case Law is replete with authorities that even the slightest
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penetration will be sufficient to constitute the act of sexual intercourse. Thus, even where penetration was proved but not of such a depth as to injure the hymen, it has been held to be sufficient to constitute the crime of rape. See: The State v. Ojo (1980) 2 NCR 391 @ 395, Jegede v. The State (2001) 7 SCNJ 135 @ 14. Thus, discharge of ?whitish?, ?greenish?, ?redish? or whatever colour of fluid in a rape offence, is not considered credible evidence for establishing the offence of rape?.
Per Muhammad, J.S.C. (P. 30 Paras B ? E). See also Oludotun Ogunbayo v. The State (2007) LPELR-2323 (SC).
It was also submitted that Exhibits R1 and R2 are not confessional statements. I have elsewhere in the course of this judgment considered the reasons advanced by the appellant?s counsel for contending that Exhibits R1 and R2 are not confessional statements and rejected those reasons.
What is a Confession? A Confession is defined in Section 28 of the Evidence Act, 2011, thus:
?A Confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that
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he committed that crime.?
?On when a confessional statement is relevant, Section 29(1) of the Evidence Act, 2011 provides that:
?In any proceedings a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of that section.?
Exhibits R1 and R2 were tendered in evidence through Sgt Ayuba Alako, the police officer who did further investigation of the case at the State CID, Jigawa State when the case was transferred there for further investigation. The appellant did not object to the voluntariness of the statement but said he objected to the contents. The lower Court perceived that an objection as to contents amounts to a retraction, and did so record, as can be seen on page 4 of record of appeal. In his evidence in his defence, he told the Court that both at the police station where he was initially taken, and at the State CID, he told the police when he was questioned about the offence that he did not commit it. The appellant thus retracted his alleged confessional statement. The law is settled that an
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accused person can be safely convicted on his retracted confessional statement if the trial Court was satisfied that the accused person made that statement, and as to the circumstances which gave credibility to the contents of the confession. It?s however the law that before a conviction can be secured there should be some corroborative evidence outside the confession that could make it probable that the confession was true. See Asuquo Okor Asuquo vs The State (2016) LPELR 40597 (SC), Uluebeka Vs The State (2000) 7 NWLR (pt 665) 41.
While the evidence of the prosecutrix cannot corroborate the confessional statement of the appellant, the law being that evidence of a witness that requires corroboration cannot provide collaboration for the evidence of another that also requires it. See Emordi Vs State (2000) LPELR 6900 (CA) 1, the confessional statements, Exhibits R1 and R2 were corroborated by the evidence of the medical Director (PW5) and the medical report (Exhibit R4). It was therefore safe to convict the Appellant on his confessional statement. In his confessional statement the appellant admitted committing the offence. His admission is
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unequivocal.
The totality of admissible evidence adduced during the trial at the lower Court has left me in no doubt that the appellant committed the offence of rape.
This issue is hereby resolved against the Appellant, and in favour of the Respondent.
Issue Two formulated by the appellant?s counsel, but considered in my lone issue is, ?whether the lower Court was right to have convicted the appellant under a charge that provision has been withdrawn.? This issue is badly couched, but for the contents of the argument proffered on it I would have been in a quandary as to what counsel actually meant. The Respondent?s counsel argued the said issue in his issue two, which he framed as follows.
?Whether the Judge was right to have convicted the Appellant under the provision of Section 283 of the Penal Code Law that was amended by Section 3 of the Penal Code (Miscellaneous Amendment Law, 2014).?
There is no doubt at all that the Appellant was not charged under Section 283 of the Penal Code Law, Cap. P3, Laws of Jigawa State 2012 (as amended) but charged under Section 285 (B) of the Penal Code Miscellaneous Amendment Law, No. 9 2014, Laws of Jigawa State
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, as submitted for the Appellant, who sees the Appellant?s conviction as a violation of his right to fair hearing. The Respondent?s counsel sees it differently. For him, the action of the learned trial judge is justified under Section 217 of the Criminal Procedure Code Law which provides:
?If in the case mentioned in S. 216 the accused is charged with an offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of the Section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.?
The learned trial Judge gave reasons that are in tandem with S. 217 of the Criminal Procedure Code Law at page 98 of the record, wherein he stated:
?It is not enough for the prosecution to say that the victim (prosecutrix) and the accused were screened and found to be HIV (Aids) positive without more?.
?On a proper scrutiny of the evidence adduced by the prosecution a conviction under Section 285 (B) with which the appellant was charged could not be
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sustained. The lower Court was therefore right to resort to conviction under Section 283 of the Penal Code Law which has been satisfactorily proved beyond reasonable doubt.
Section 217 of the Criminal Procedure Code Law has crystallized into Judicial authority to the effect that where an accused is charged with one offence but appears in evidence that he committed a different offence for which he might have been charged he may be convicted of the lesser offence which he is shown to have committed by the evidence, regardless of the fact that he was not charged with the particular offence. See Odeh v. FRN (2008) 13 NWLR (Pt. 1103) 1 at 23, Musa vs State (2014) LPELR ? 24026 (CA) Simon vs State (2014) LPELR-23994 (CA).
The lower Court acted within the law in convicting the appellant under S.283 of the Penal Code Law, even though charged under S. 285(B) of the Penal Code (Miscellaneous Amendment) Law No 9, 2014, Laws of Jigawa State.
I hereby resolve the lone issue in favour of the Respondent. The appeal against conviction lacks merit and is hereby dismissed.
?However, I consider the sentence of life imprisonment excessive in view of
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the fact that the appellant is a first offender. Ground four of the amended Notice of appeal complains about the sentence thus:
?The trial Court erred in law when it held that it had no discretion to exercise while sentencing the Appellant contrary to the applicable provision of law.?
The appellant?s counsel did not specifically make it an issue in his brief of argument. However, he argued it in his issue two. It was submitted that the lower Court was prevented from tampering justice with mercy because Section 283 of the Penal Code Law is mandatory. I accept the appellant?s argument that the said Section 283 stipulates a minimum sentence of imprisonment of not less than three years and a maximum sentence of life imprisonment. It is my firm view that the trial judge did not exercise his discretion judiciously and judicially when he sentenced the appellant to life imprisonment. Nothing in the law makes the punishment of life imprisonment mandatory for rape.
Therefore in exercise of the powers of this Court under Section 15 of the Court of Appeal Act, I hold that the Appellant being a first offender, and was shown in the
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course of the proceeding to have a family is entitled to the leniency of this Court.
Accordingly, I hereby sentence him to 15 years imprisonment. The sentence is to run from the date of his conviction and sentence.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft Judgment of my learned brother JAMES GAMBO ABUNDAGA JCA. My lord has considered the appeal in detail, I agree.
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Appearances:
Mohammed S. Katu, Esq.For Appellant(s)
Musa M. Imam, Esq. (DPP, Jigawa State)For Respondent(s)
Appearances
Mohammed S. Katu, Esq.For Appellant
AND
Musa M. Imam, Esq. (DPP, Jigawa State)For Respondent
