UMAR v. STATE
(2022)LCN/16580(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Thursday, February 24, 2022
CA/KN/564/C/2019
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
HARUNA UMAR APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON PROOF BEYOND REASONABLE DOUBT
It must however be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt thus simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Shola Vs State (2020) 8 NWLR (Pt 1727) 530, Njoku Vs State (2021) 6 NWLR (Pt 1771) 157, Ogunjimi Vs State (2021) 9 NWLR (Pt 1782) 551. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short will suffice.” PER ABIRU, J.C.A.
WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON
It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. PER ABIRU, J.C.A.
THE PRIMARY DUTY OF THE TRIAL COURT IN EVALUATING THE EVIDENCE PRESENTED BY PARTIES BEFORE IT
The law is that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Therefore, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the appellant shows that the conclusion reached from the facts is perverse – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289.
In other words, for an appellate Court to interfere with the evaluation of evidence carried out by a lower Court, an appellant must visibly demonstrate the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Jigawa State delivered in Case No JDU/96C/2016 by Honorable Justice Ubale Ahmed Taura on the 14th of December, 2017.
The Appellant was charged with two counts of rape contrary to the provisions of Section 282(1)(e) and punishable under the provisions of Section 283 of the Penal Code of Jigawa State. The Appellant was alleged to have, on or about the 24th day of August, 2014 in Kofar Fada Quarters in Maigatari Local Government Area of Jigawa State lured and raped two under-aged girls, six year old Mami Hassan and ten years old Fadila Dauda. The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial.
In the course of the trial, the Respondent called four witnesses and tendered the medical reports of examination of the victims in proof of its case against the Appellant and the Appellant testified as the sole witness in his defence. At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court found the Appellant guilty as charged and sentenced him to twelve calendar years of imprisonment on each count of rape and it directed that the sentences are to run concurrently. The Appellant was dissatisfied with the judgment and he caused a notice of appeal dated the 8th of January, 2018 and containing six grounds of appeal to be filed against it.
The records of appeal were compiled and transmitted to this Court on the 18th of October, 2019 and they were deemed properly compiled and transmitted on the 8th of July, 2021. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 16th of August, 2021 on the 18th of August, 2021 and Counsel to the Respondent filed a brief of arguments dated the 20th of September, 2021, on the 21st of September 2021. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions on the appeal.
Counsel to the Appellant distilled two issues for determination in the appeal and these are:
i. Whether, having regards to the totality of evidence adduced before the lower Court, the Respondent discharged the onus of proving its case beyond reasonable doubt against the Appellant as required by law.
ii. Whether attaching evidential weight to Exhibits P1 and P2, which documents were admitted from the Bar and therefore denying the Appellant his right of cross examination, and which led to the conviction of the Appellant by the lower Court, did not constitute denial of the constitutional right of fair hearing on the Appellant.
In arguing the first issue for determination, Counsel to the Appellant restated the principle in criminal litigation that places the burden of proof on the prosecution and stipulates the standard of proof as being proof beyond reasonable doubt and he also referred to the cases of State Vs Masiga (2018) 8 NWLR (Pt 1622) 383 and Lucky Vs State (2016) 13 NWLR (Pt 1528) 128 in reiterating the ingredients of the offence of rape. Counsel stated that in proving the ingredients of the offence, the Respondent relied largely on the uncorroborated evidence of the two victims, the first and fourth prosecution witnesses, the hearsay evidence of the second and third prosecution witnesses and the medical reports tendered from the Bar by the Respondent. Counsel stated that these pieces of evidence led by the Respondent failed woefully in proving any of the ingredients of the offence charged.
Counsel stated that there were contradictions in the evidence of the prosecution witnesses on the date of the commission of the offence and that while the charge read that the offence was committed on the 24th of August, 2014, the first prosecution witness gave evidence that it was on the 2nd of August, 2014 while the second prosecution witness testified that it was on the 20th of August, 2014. Counsel stated that the contradictions cast a doubt on the actual date of the commission of the offence and consequentially, on the commission of the offence and which doubt must be resolved in favour of the Appellant and he referred to the cases of Onubogu Vs State (1974) SC 63 and Nwabueze Vs The State (1988) 3 NWLR (Pt 86).
Counsel stated that the evidence of the two victims of the offence, the first and fourth prosecution witnesses, being testimonies of girls under the age of fourteen years required corroboration by independent and credible evidence and he referred again to the case of State Vs Masiga supra. Counsel stated that the only evidence presented by the Respondent outside the evidence of the victims were the hearsay evidence of the second and third prosecution witnesses and the medical reports of the Medical Doctor who examined the victims, tendered as Exhibits P1 and P2 and that it was these pieces of evidence that the lower Court relied upon in finding corroboration for the evidence of the victims. Counsel stated that the reliance placed on these pieces of evidence as corroboration was erroneous as they did not constitute direct, flawless, cogent, compelling and unequivocal evidence showing that it was the Appellant that committed the offence and he referred to the cases of Odofin Bello Vs The State (1966) 1 All NLR 223, Sambo Vs State (1993) 6 NWLR (Pt 300) 399, Upahar Vs The State (2003) 6 NWLR (Pt 816) 236, Igbine Vs State (1997) 9 NWLR (Pt 519) 101 and Jegede Vs State (2001) 1 NWLR (Pt 695).
Counsel referred to the case of Okoyomon Vs The State (1973) 1 SC 21 in asserting that it is only through independent evidence of a Medical Doctor or other strong corroborative evidence that penetration can be proved in rape cases and he stated that there was no such evidence led by the Respondent in the present case, aside from the medical reports tendered from the Bar as Exhibits P1 and P2. Counsel stated that Respondent did not lead cogent evidence to establish penetration of the vaginas of the victims as required by law because there was nothing placed before the lower Court to show that hymens of the victims were breached due to the act of rape committed against them by the Appellant. Counsel stated that the contents of Exhibits P1 and P2 merely showed that private part of one of the victims, the fourth prosecution witness, was swollen and that this did not qualify as evidence of penetration required by law and that penetration cannot be presumed or inferred, but must be established by cogent evidence. Counsel stated that the lower Court also fell into error when it failed to treat the entire evidence of the second and third prosecution witnesses as hearsay evidence and thus inadmissible.
Counsel contended further that the Appellant raised a defence of alibi and that the foundation of the defence should be set in the extra judicial statement of the Appellant given to the Police at the point of investigation and that the Respondent failed to call any evidence from the Police Officer who investigated the allegations against the Appellant and did not tender the statement of the Appellant. Counsel stated that the lower Court was bound to consider all the defences put up by the Appellant, even if they are merely imaginative, fanciful and doubtful and he referred to the case of Orisa Vs State (2018) 11 NWLR (Pt 1163) 453. Counsel stated that the failure to call the Police Officer who investigated the allegations to testify amounted to withholding evidence and he referred to the provisions of Section 167(d) of the Evidence Act and the case of Usufu Vs State (2007) 1 NWLR (Pt 1020) 94.
Counsel stated that the Appellant in his oral evidence in his defence properly established the defence of alibi by credible and unchallenged evidence and that the only reason given by the lower Court for rejecting the evidence was that the Appellant did not raise same while making his statement in the Police Station. Counsel stated that the Respondent deliberately refused to produce and tender the statement of the Appellant and/or call the Investigating Police Officer, whose evidence was very vital, to testify and that as such the lower Court was not in a position to know whether or not the Appellant raised the defence timeously and that the doubt created ought to have been resolved in favour of the Appellant and he referred to the case of Kachi Vs State (2015) 9 NWLR (Pt 1464) 213. Counsel stated that the lower Court ought to have found that the Appellant satisfied all the requirements of law to establish the defence of alibi. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.
On the second issue for determination, Counsel stated that the medical reports, Exhibits P1 and P2, were tendered from the Bar and that therefore the Appellant did not have the opportunity to cross examine the maker of the documents before the close of the case of the Respondent. Counsel stated that it is settled law that documents tendered in evidence in the course of trial are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case submitted for adjudication and he referred to the case of Udom Vs Umana (No 2) (2016) 12 NWLR (Pt 1526) 270. Counsel stated that the manner of the tendering of the documents denied the Appellant the opportunity to cross examine the maker of the documents and that this was in breach of his constitutional right to fair hearing because cross examination is a major part of the trial process and cannot be brushed aside or ignored and he referred to the cases of INEC Vs Ifeanyi (2010) 1 NWLR (Pt 1174) 98 and Shofolahan Vs The State (2013) 17 NWLR (Pt 1383) 281. Counsel stated that the lower Court was thus in clear error in giving probative value to the documents and he urged the Court to resolve the second issue for determination in favour of the Appellant.
Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court together with the conviction of and the sentence passed on the Appellant and to discharge and acquit the Appellant.
On his part, Counsel to the Respondent distilled one issue for determination in the appeal and this is – whether the Respondent proved the offence of rape against the Appellant beyond reasonable doubt? In arguing the issue for determination, Counsel referred to the cases of Ali Vs State (2018) LPELR-45995(CA) and Mu’azu Vs State (2018) LPELR-46768(CA) in restating the definition of the offence of rape and the ingredients of the offence and the cases of Okanlawon Vs State (2015) 17 NWLR (Pt 1489) 445, Alufohai Vs State (2015) 3 NWLR (Pt 1445) 172 and Dele Vs State (Pt 1229) 508 in reiterating the modes of proving the guilt of an accused person. Counsel emphasized that the burden of proof on the Respondent was beyond reasonable doubt and not beyond all iota or shadow of doubt as it is impossible to envisage and achieve proof to a perfect scientific certainty due human frailties and he referred to the cases Eke Vs State (2011) All FWLR (Pt 566) 430, Abeke Vs State (2007) All FWLR (Pt 366) 644, Paul Vs State (2015) All FWLR (Pt 778) 893.
Counsel stated that the onus on the Respondent was to prove by compelling evidence the commission of the offence of rape and he noted that the Respondent called four witnesses and tendered two medical reports in proof of its case against the Appellant. Counsel traversed through the testimonies of the first and fourth prosecution witnesses, the victims of the crime and stated that they gave graphic evidence of how the Appellant sexually molested them and their evidence was corroborated by the testimonies of the second and third prosecution witnesses who gave evidence that they noticed that the vaginas of the victims were swollen when they examined them and by the contents of the medical reports of the examination of the victims by the Medical Doctor and which indicated that the hymens of the victims were missing and that there were bruises and lacerations in their vulvas, affirming penetration.
Counsel stated that the lower Court was thus very correct when it found that the Appellant led credible and cogent evidence to prove all the ingredients of the offence against the Appellant beyond reasonable doubt and that it is settled law that findings of a trial Court supported by evidence led on record will not be set aside by the appellate Court and he referred to the case of Omotayo Vs Cooperative Supply Association (2010) LPELR-2662(SC). Counsel stated that the contradictions said to exist in the evidence of the witnesses and the contents of the charge on the date of the commission of the offence were minor and not fatal to the case of Respondent and he referred to the case of Adonike Vs State (2013) LPELR-20295(CA). Counsel stated that, contrary to the assertion of Counsel to the Appellant, a calm perusal of the evidence given by the Appellant in his defence before the lower Court shows that nowhere therein was the defence of alibi raised and no particulars of such a defence was given and that all he did was to deny the commission of the crime, and that in counter to this, the unchallenged evidence of the first and fourth prosecution witnesses pinned the Appellant at the scene of the crime.
With regards to the medical reports, Counsel stated that the Appellant or his Counsel did not object to the tendering of the documents from the Bar and that the issue of the probative value of a medical report tendered from the Bar was considered by this Court in the case of Mu’azu Vs State supra, and this Court held, in similar circumstances, that the medical report was properly admitted and given probative value by the trial Court and he urged the Court to follow that decision. Counsel further urged the Court to resolve the sole issue for determination in favour of the Respondent.
Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court together with the conviction of and sentence passed on the Appellant.
Reading through the records of appeal, particularly the notes of evidence, the final written addresses of Counsel to the parties before the lower Court, the judgment of the lower Court and the notice of appeal, as well as the arguments in the respective briefs of arguments of the parties in this appeal, the Court agrees with the Counsel to the Respondent that there is only one issue for determination in this appeal. It is:
Whether, on the facts and circumstances of this case, the lower Court was correct in holding that the Respondent led cogent, credible and sufficient evidence to prove the ingredients of the offences charged against the Appellant beyond reasonable doubt.
It is settled in our criminal jurisprudence law that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal – Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.
It must however be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt thus simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Shola Vs State (2020) 8 NWLR (Pt 1727) 530, Njoku Vs State (2021) 6 NWLR (Pt 1771) 157, Ogunjimi Vs State (2021) 9 NWLR (Pt 1782) 551. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short will suffice.”
The Appellant was charged with the offence of rape and he was alleged to have had carnal knowledge of two under-aged girls, six year old Mami Hassan and ten years old Fadila Dauda. The essential ingredients that the Respondent was under obligation to prove beyond reasonable doubt to sustain the charge against the Appellant were (i) that the Appellant had sexual intercourse with the victims; (ii) that the act of sexual intercourse was done without consent of the victims or that the consent, if any was obtained by fraud, force, threat, intimidation, deceit or impersonation or that the victim was under the age of fourteen years, the law is that a girl under fourteen years cannot give consent; (iii) that the victims were not the wife of the Appellant; (iv) that the Appellant had the mens rea, the intention to have sexual intercourse with the victims without her consent or that the accused acted recklessly not caring whether the victims consented or not; and (v) that there was penetration – Julius Vs State (2019) LPELR 48491(CA), Enang Vs State (2019) LPELR 48682(CA), Idam Vs Federal Republic of Nigeria (2020) LPELR 49564(SC), Muhammadu Vs State (2020) 17 NWLR (Pt 1753) 252, Damuna Vs State (2021) 4 NWLR (Pt 1767) 419.
It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.
The records of appeal show that the Respondent called four witnesses and tendered the medical report of examination of the two victims by a Medical Doctor as Exhibits P1 and P2 in proof of its case against the Appellant and that the Appellant led evidence as the sole witness in his defence. It is obvious that the Respondent relied on the eye witness accounts of the two victims, who testified as the first and the fourth prosecution witnesses, and the circumstantial evidence in the testimonies of the second and third prosecution witnesses and in the contents of the medical reports in proving the guilt of the Appellant.
A read through the judgment shows that the lower Court traversed through the evidence of the two victims and found that their evidence that they were sexually assaulted by the Appellant was not challenged or discredited under cross examination. It shows that the lower Court similarly traversed through the testimonies of the second and third prosecution witnesses, the persons to whom the victims reported the incident and who examined the vaginas of the victims and saw them red and swollen, and found that their evidence was not hearsay evidence and that it corroborated the evidence of the victims. It shows that the lower Court further considered the contents of the medical report of the examination of the victims and found that they also corroborated the evidence of the victims. It shows that the lower Court thereafter traversed through the defence of the Appellant and found that it did not create any reasonable doubt in the case presented by the Respondent. It shows that the lower Court thereupon concluded that the Respondent made out a credible and sufficient case to prove the ingredients of the offence charged against the Appellant beyond reasonable doubt and it convicted and sentenced the Appellant accordingly.
The Appellant contends against the evaluation of evidence carried out and the findings and conclusion made therefrom by the lower Court. The law is that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Therefore, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the appellant shows that the conclusion reached from the facts is perverse – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289.
In other words, for an appellate Court to interfere with the evaluation of evidence carried out by a lower Court, an appellant must visibly demonstrate the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.
Counsel to the Appellant made four contentions against the findings and conclusion reached by the lower Court on the evidence led by the parties; namely: (i) that the lower Court was in error when it ascribed probative value to the medical reports which were tendered from the Bar, and without the Appellant being given an opportunity to cross-examine the maker; (ii) that there were contradictions in the case made out by the Respondent on the date of commission of the offence and that this was fatal; (iii) that the lower Court was in error when it treated the evidence of the second and third prosecution witnesses and the contents of the medical reports as sufficient corroboration for the evidence of the first and fourth prosecution witnesses; and (iv) that the lower Court was in error when it failed to uphold the defence of alibi raised and proved by the Appellant in his defence at the trial.
On the first contention of the Counsel to the Appellant, the records of appeal show that the medical reports were admitted in the course of proceedings on the 6th of July, 2017 in the presence of the Appellant and his Counsel and the proceedings that took place on the date read thus:
“Mr. Taura: The case is for continuation of hearing, unfortunately none of my witness is in Court. I apply for last chance to enable me produce my remaining witnesses.
I apply to tender the medical report through the Bar under Section 249(3) (a)(b)(c) of the CPC on the ground that the Doctor who conducted the examination of the prosecutrixes was a Youth Corper and he has left the State. I have already served the defence with the copies of the report for the past 40 days.
Mrs. LCM: We are not objecting.
Court: The medical report in respect of Fadila Dauda dated 28/8/2014 written on the letter head paper of Maigatari Primary Health Center and that of Mami Hassan carrying same description and same date are hereby admitted in evidence and marked as exhibits P1 and P2 respectively.
Mr. Taura: I am equally applying for the reports to be read to the accused under Section 249(3)(b) of the CPC.
Mrs. LCM: We want the reports to be deemed as read in open Court.
Court: The reports are deemed as read in open Court.”
The provisions of Section 249 (3) (a) (b) and (c) of the Criminal Procedure Code, pursuant to which the medical reports were admitted, read that a written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him and that on the admission of such report, the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court. Further, that if by any reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person the Court shall summon such medical practitioner to appear as a witness.
These provisions have been interpreted by the Courts to mean that a medical report of examination of the victim of an offence can be admitted in evidence in the absence of the Medical Doctor who authored it – Juwa Vs State (1969) 1 All NLR 254, Difa Vs The State (1977) NNLR 224, Danjuma Vs Kano State (2018) LPELR 44724(CA), Fulani M. Vs State (2018) LPELR 45195(SC), Usman Vs State (2018) LPELR-46568(CA), Mu’azu Vs State (2018) LPELR-46768(CA), Asortar Vs State (2020) LPELR-50359(CA), Ali Vs State (2020) LPELR-53409(SC). The obligation to call the Medical Doctor to attend Court to testify either in-chief or for cross-examination would only arise where the accused person disagrees with the contents of the medical report or convinces the trial Court that it is in the interest of justice to summon the Medical Doctor –Idirisu Vs State (1967) All NLR 13, Liman Vs State (1976) 7 SC (Reprint) 36. Where the medical report is so tendered and the accused person does not disagree with its contents and does not request or convince the trial Court to summon the Medical Doctor for examination or cross-examination, he cannot complain of lack of fair hearing or otherwise if the trial Court places reliance on the report – Paul Vs State (2019) LPELR-47386(SC), Adamu Vs State (2020) LPELR-51122(CA), Isah Vs State (2020) LPELR-51120(CA).
The provisions of Section 249 (3) (a) (b) and (c) of the Criminal Procedure Code are in consonance with the provisions of Section 55 (1), (2) and (3) of the Evidence Act which also deal with the tendering of medical reports and they read that either party to the proceedings in any criminal case may produce a medical report signed by a Medical Doctor in Government service and the production of any such report may be taken as sufficient evidence of the facts stated therein but with a proviso empowering the Court to either on its own motion or on the application of the other party direct such Medical Doctor to attend Court for purposes of cross-examination. The provisions have been similarly interpreted to mean that it is not mandatory for a medical officer who authored the report to attend Court to give evidence during trial and that the production by either party of a medical report signed by the medical officer was sufficient evidence of the facts stated in the report – Isiekwe Vs State (1999) 9 NWLR (Pt 617) 43, State Vs Ajie (2000) 11 NWLR (Pt 678) 434, Eyo Vs State (2009) LPELR 8686(CA), Edoho Vs State (2010) 14 NWLR (Pt 1214) 651, Oguno Vs State (2011) 7 NWLR (Pt 1246) 314, Adeshina Vs People of Lagos State (2019) 8 NWLR (Pt 1673) 125, State Vs Musa (2019) LPELR 47541, Etuk-Udo Vs State (2020) LPELR 49164(CA), Segun Vs State (2021) LPELR-53110(CA).
It is obvious from the above reproduced excerpt of Court proceedings that neither the Appellant nor his Counsel disagreed with or questioned the contents of the medical reports and they did not also request for the attendance of the Medical Doctor in Court for cross-examination. The contention of Counsel to the Appellant in this appeal against the reliance placed on the medical reports by the lower Court in making its findings is baseless.
With regards to the second contention of Counsel to the Appellant on the presence of contradictions on the date of the commission of the offence in the case presented by the Respondent, the law is such contradiction is peripheral and tangential and of no moment and did not serve to raise any doubt in the case of the Respondent. The law recognizes such differences as normal and that they go no issue, particularly as the trial in the matter commenced three years after the incident occurred – Agbo Vs State (2007) 10 WRN Pg 95 at 101, Musa Vs State (2013) 9 NWLR (Pt 1359) 214. It is trite law that it is not every discrepancy or contradiction or any form of inconsistency that will affect the substance of a criminal charge which has been proved with credible and unchallenged evidence. The contradiction or inconsistency which will upturn a decision must be of such magnitude that it would go to the root of the evidence of a witness and must be fatal to the case of the party relying on it.
In other words, the law maintains that only grave and material contradiction which goes to the root of the case can cause the evidence to tumble. Outside this, mere slant in the evidence of witnesses cannot be termed as contradictions – Mamuda Vs State (2019) LPELR-46343(SC), State Vs Musa (2019) LPELR-47541(SC), Ayinde Vs State (2019) LPELR-47835(SC), Wowem Vs State (2021) LPELR-53384(SC), Okere Vs Inspector General of Police (2021) LPELR-53709(SC). In Ukpong Vs State (2019) LPELR-46427(SC), the Supreme Court explained the point thus:
“Above all, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses…
This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth… In any event, Courts have even taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy …
In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused person …”
The second contention of the Counsel to the Appellant against the findings and conclusion of the trial Court is also baseless.
The arguments of Counsel to the Appellant on his third contention against the findings and conclusions of the lower Court were two pronged – firstly, that the lower Court was in error when it did not treat the entire testimonies of the second and third prosecution witnesses as hearsay evidence; and secondly, that the lower Court erred in treating the evidence of the second and third prosecution witnesses and the contents of the medical reports as sufficient corroborative evidence.
In deliberating on the evidence of the second and third prosecution witnesses, the lower Court stated in the judgment thus:
“The summary of the evidence of PW2 is that she knew the accused person and that on the 20th day of August, 2014 after coming back home from a visit, the children came and informed her that Mami, the 2nd prosecutrix, had passed stool on her trouser and when she asked her what happened with her, the said Mami told her that it was someone that inserted his penis into her vagina and when she cross checked the vagina, she discovered that it had swollen up and become red and when she asked the girl of who did it to her, the victim mentioned the name of the accused person.
The evidence of PW3 is almost in the same footing with that of PW2 as after both of them were informed of the incident they went ahead to crosscheck the victim and they both discovered that the vagina of the 2nd victim had swollen up.
One could therefore say that the 1st part of the evidence of both witnesses were based on the information received by them from someone. The pertinent question to ask is that, are the testimonies of these witnesses hearsay and inadmissible and what is the meaning of hearsay evidence.
… In the case under consideration, it is a fact that the 1st portions of the evidence of both witnesses were the information of the happening of the incident received by them from other persons. However, the other portions of their evidence are the vivid accounts of the role they each played after the happening of the incident. It is therefore unambiguous that the information received by the witnesses from other persons was not meant to establish the truth of what it contained but was meant to establish that the statement was made as such it is in the light of the guidance received from the above cited authorities that I come to hold that the evidence of PW2 and PW3 are not hearsay and therefore admissible in this case, particularly when their testimonies are relevant and were not controverted or challenged under cross examination and indeed PW3 was not even cross examined.”
Now, apart from making a general statement that the lower Court erred in law when he refused to consider the entire evidence of PW2 and PW3 as hearsay evidence, nowhere in the brief of arguments did Counsel to the Appellant challenge the reasoning of the lower Court in the above reproduced excerpt of judgment. This Court must say that it does not find any fault in the above reasoning of the lower Court on the nature of the evidence of second and third prosecution witnesses. This Court draws support from the classification of such similar by the Supreme Court in the case of Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, where Ariwoola, JSC, commented thus:
“There is no controversy that PW1 was a neighbor to the deceased, living in the next house. He testified to what happened to him and what he heard the deceased’s child shouted. There was uncontroverted evidence that he was attacked by the appellant from behind with a machete and he contemporaneously heard the shout of the child of the deceased that the appellant had killed his mother. He saw the appellant running away after the attacking him. In the same vein, PW2 testified on what he saw and heard the appellant did. The appellant had earlier visited him in his camp and told him that he was planning to do something he did not disclose. He was later found sharpening his cutlass and proceeded to the camp of the deceased. He was later informed by the child of the deceased, shortly thereafter that the appellant who earlier told him he was going to do something and was sharpening his cutlass, had killed the deceased, who was his sister. He visited the deceased’s house and confirmed her death in the pool of her blood in her room. He was later to trace the appellant to PW5 where he fought the appellant and used the same cutlass held by the appellant to cut him. PW5 testified to what the Appellant personally told him shortly after the incident in question and what he saw happened between the appellant and PW2 as the appellant was leading PW5 to the scene where he claimed he had killed a person. In my view, none of the above prosecution witnesses’ testimony can be classified as hearsay. It is therefore a misconception, to say the least, for the learned appellant’s Counsel to have argued on that line.”
The second and third prosecution witnesses gave evidence of what they heard from the victims and of what they saw. Their evidence did not thus amount to hearsay evidence.
On the issue of corroboration, Counsel to the Appellant argued that since the evidence of the second and third prosecution witnesses and the contents of the medical report were not direct evidence identifying the Appellant as the person who assailed the victims, they could thus not qualify as sufficient corroboration. With respect to Counsel, this argument shows clearly that his understanding of the concept of ‘corroboration’ is not up to speed. Corroboration means no more than evidence tendering to confirm, support and strengthen other evidence sought to be corroborated. Corroboration need not consist of direct evidence that the accused person committed the offence, nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respects material to the charge – State Vs Gwangwan (2015) 13 NWLR (Pt 1477) 600, Ali Vs State (2021) 12 NWLR (Pt 1789) 159, Aliyu Vs State (2021) 17 NWLR (Pt 1805) 197.
The evidence of the second and third prosecution witnesses was that, upon being informed by the victims that the Appellant inserted his penis into their vaginas, they examined the vaginas of the victims and saw them red and swollen. In other words, that the vaginas were bruised, supporting the statements of the victims of the insertion of penis into them. The medical reports, Exhibits P1 and P2, showed that upon the examination of both victims, the Medical Doctor found that their hymens were no longer there and there were lacerations and bruising in the vulvas and around the labia of both victims and redness on palpation in the vagina of the second victim, Mami Hassan. The medical reports confirmed the observations of the second and third prosecution witnesses and the evidence of the victims. It has been held that medical evidence of nature on injuries suffered by a victim can and does constitute adequate corroboration of the evidence of the victim. In Adonike Vs State (2015) 7 NWLR (Pt 1458) 237 the Supreme Court made the point that:
“When a child gives evidence and says that the accused had sex with her, the Court cannot convict the accused on the uncorroborated testimony of the child alone. The evidence given by the child must be corroborated. Corroboration is independent evidence that confirms or makes more certain the testimony of the child and may be (a) admission by the accused person that he committed the offence; or (b) circumstantial evidence; and (c) medical evidence. In the instant case, the evidence given by the child (PW1) that the appellant forcibly had sex with her was corroborated by the evidence of PW3, the Medical Doctor, and exhibit A, the Medical Report which showed injury to the private part of the child.”
The lower Court was thus very correct when he relied on the evidence of the second and third prosecution witnesses and the contents of the medical reports as adequate corroborative evidence for the unchallenged and un-controverted evidence of the victims, the first and fourth prosecution witnesses.
The fourth contention of Counsel to the Appellant was on the failure of the lower Court to consider the defence of alibi raised and proved by the Appellant in his evidence. Alibi is Latin for “elsewhere” It also means the fact or state of having been elsewhere when an offence was committed. The defence of alibi is based on the physical impossibility of the accused being guilty by placing him in another location at the relevant time. In essence, alibi, as a defence, simply put, seeks to establish that at all times material to the commission of the offence, the accused person was nowhere near the locus of the crime, and ordinarily therefore he could not be expected to be involved in the physical execution of the crime alleged. It is trite that once the defence is properly raised by the accused person during investigations, it is the duty of the Police to investigate it. The legal principles governing the treatment of the defence of alibi have been stated and restated by the Supreme Court in several case law authorities, the latest of which include Dage Vs State (2019) 12 NWLR (Pt 1686) 204, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Opeyemi Vs State (2019) 17, NWLR (Pt 1702) 403, Sale Vs State (2020) 1 NWLR (Pt 1705) 205, Ugwu Vs State (2020) LPELR 49375(SC). But perhaps one of the best expose of the principles was that made by Achike, JSC, in the case of Ebre Vs State (2001) 12 NWLR (Pt 728) 617, where His Lordship stated:
“We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeing that when properly established it has the far-reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a detailed particularization of his whereabouts on the crucial day the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any, transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must unquestionably, be capable of investigation by the Police should they wish to do so. A fair minded tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the Police by the accused person, preferably in his extra-judicial statement to afford the Police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence. Such a ploy cannot avail the accused…
Conversely, where the defence of alibi consists of vague accounts which are simply placed before the Court as mere make-believe of plea of that defence, and which are completely devoid of material facts worthy of investigation, the Police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the Court would have nothing before it to consider by way of alibi. For example, where the accused person in his extra-judicial statement stated that either that ‘he was not in town on that day’ or that ‘he traveled to a neighbouring town or village – Awka’, and nothing more, no reasonable person would think that a serious plea of alibi has been made out. In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person.”
Applying these principles to the case made out in his oral evidence in his defence, no where therein did the Appellant raise the defence of alibi, as rightly pointed out by Counsel to the Respondent, and all he did was to deny the commission of the offence. It was not his case anywhere in his oral evidence that he was somewhere else at the time of the commission of the offence. The issue of consideration or non-consideration of the defence of alibi did not thus arise on the face of the facts disclosed in the evidence before the lower Court. It is not the duty of a trial Court to invent or manufacture a defence for an accused person where no such defence is disclosed or implied in the evidence led before it. The mention and treatment of the issue of alibi in the judgment by the lower Court was superfluous and unnecessary and so the question whether the lower Court considered it rightly or wrongly cannot constitute a plausible issue in this appeal. The fourth contention of Counsel to the Appellant is thus without any foundation in the facts.
This Court finds that all the contentions of the Appellant against the findings made and conclusions reached by the lower Court from the evidence led by the parties have no leg to stand on. The Appellant has thus not given this Court any reason to tamper with the judgment of the lower Court. The appeal fails and it is hereby dismissed. The judgment of the High Court of Jigawa State delivered in Case No JDU/96C/2016 by Honorable Justice Ubale Ahmed Taura on the 14th of December, 2017 as well as the sentence passed on the Appellant therein is affirmed. These shall be the orders of the Court.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother HABEEB ADEWALE O. ABIRU, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: My learned brother HABEEB ADEWALE. O. ABIRU, JCA delivered the judgment in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I adopt the reasoning and conclusion reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me. I abide by the consequential orders made therein.
Appearances:
H. B. Abubakar For Appellant(s)
Dr. Musa Adamu Aliyu, Attorney General Jigawa State, with him, Jamilu Muhammad, DRPS, Binta Yusuf Abubakar, CSC and A. H. Hassan, PSC, Ministry of Justice, Jigawa State For Respondent(s)
