USMAN v. STATE (2022)

USMAN v. STATE

(2022)LCN/16595(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, January 28, 2022

CA/KN/20C/2021

Before Our Lordships:

Ita George Mbaba 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

RABIU USMAN APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT TWO OR MORE ISSUES FOR DETERMINATION CAN ARISE FROM A GROUND OF APPEAL

The law is trite, and we have stated several times, that a party (or Counsel) cannot split a ground of Appeal to generate two or more issues for determination of Appeal, as that amounts to proliferation of Issues. See the case of North West Petroleum & Gas Company Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR – 55509 (CA), where we held:
“…he (Counsel) split many of the grounds of appeal to donate several issues for determination in a manner quite offensive to the rules and procedure for arguing appeals. The law is trite, that whereas Appellant can combine two or more grounds of Appeal to generate an issue for the determination of appeal, he cannot split a ground of appeal to raise several issues for determination of the appeal. That is to say, that the moment an Appellant has distilled an issue from a given ground(s) of appeal, he cannot thereafter, use the said (used) ground(s) of appeal to generate another issue for the determination of the appeal, as that would amount to the proliferation of issues. See the case of A.G. Imo State Vs Imo Rubber Estate Ltd and (Ors) (2019) LPELR-47579 (CA); Phillips Vs Eba Odan Commercial & Industrial Co. Ltd (2012) LPELR-9718 (SC); Ugo Vs Obiekwe (1989) 2 SC (Pt. 11) 41. Of course, it is trite, that once Appellant has distilled an issue for determination of appeal from a given ground(s) of appeal, that ground (or grounds) of appeal ceases to be available to donate another issue for determination of the appeal. PER MBABA, J.C.A.

WHETHER OR NOT A GROUND OF APPEAL THAT HAS DISTILLED AN ISSUE FOR DETERMINATION CAN BE USED TO FORMULATE ANOTHER ISSUE FOR DETERMINATION

The law is trite that one cannot split a ground of appeal to generate different issues for the determination of appeal. It is also the law that, once a given ground of appeal has been used to distill an issue for determination of appeal, that ground ceases to be available to be used, either alone, or in conjunction with another ground(s) of appeal to generate another issue for the determination of the Appeal.” See Marcathy Vs Tope (2012) All FWLR (Pt. 648) 833; Nwaigwe Vs Okere (2008) All FWLR (Pt. 413) 843; Oseni Vs Bajulu (supra); Blessing Vs FRN (2013) 12 WRN 36. See also Aduba & Ors Vs Aduba (2018) LPELR-45756 CA; Egbebu Vs IGP & Ors (2016) LPELR-40225(CA) and Okuwa & Anor Vs Ngere & Anor. (2020) LPELR- 49716 CA, where we also held: “Having used the said ground one to formulate the issue one for the determination of the appeal, the said ground one of the appeal ceased to be available to donate another issue for determination of Appeal… See also Nigerian Agricultural Co-op. Bank Ltd Vs Lewechi Ozoemelam (2016) LPELR-26051 (SC).” PER MBABA, J.C.A.

THE CRIMINAL OFFENCE OF RAPE

By the provision of Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014, Section 283 of the Penal Code Law was deleted, and replaced with the following provision:
“Notwithstanding the provision of any other law to the contrary, but subject to Section 285B, whoever commits rape shall be punished for life or for a term of not less than ten years and, where the rape committed falls under Paragraph (e) of Section 282(1), shall be punished with imprisonment for life.”
Of course, Section 282(1), (e) of the Penal Code is to the effect that:
“A man is said to commit rape when, save in the case referred to in subsection (2), has sexual intercourse with a woman in any of the following circumstances… (e) with or without her consent, when she is under fourteen years of age or of unsound mind.” PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal against the decision of Jigawa State High Court in Charge No. JDU/53C/A/2019, delivered on 10th December, 2020, delivered by Hon. Justice Musa Ubale, wherein Appellant was convicted for rape, under Section 3 of the Penal Code (Miscellaneous Amendment) Law, 2014 of Jigawa State and sentenced to twenty-one years imprisonment.

At the lower Court, Appellant was accused as follows: –
“That you Rabiu Usman ‘M’ aged 38 years of Tsangayar Yamma, Kangire Birnin Kudu Local Government sometime in the year 2016, at Tsangayar Yamma Quarters, Birnin Kudu Local Government Area Jigawa State within Jigawa Judicial Division, called one Fa’iza Idris, aged about 10 years old to your friend’s room and had sexual intercourse with her. You are hereby said to have committed the offence of rape, punishable under Section 283 of the Penal Code (Miscellaneous Amendment) Law of Jigawa State of Nigeria, 2014.”

Appellant was arraigned on 22/7/2020 when the charge was read and interpreted to him in Hausa Language, and he said he understood the same and pleaded, Not Guilty. After hearing the case and considering the evidence and addresses of Counsel, the trial Court had held the appellant guilty of the offence and said:
It is the evidence of PW2, the Medical Doctor that examined the prosecutrix, that the prosecutrix, PW4, had narrated her history to him, that for the past one year one Nura had been molesting her, sexually, then follows the defendant who is a friend to Nura also molesting her sexually until she was caught a day before she was presented by another person whom PW2 called the bagger. And when they carried their investigation they found that there was some fluid around the virginal orifice and the hymen was breached.
This piece of evidence corroborated the evidence of PW4 the prosecutrix that the defendant called her into his room, asked her to close her eyes, removed her wrapper and also removed his trouser and had sexual intercourse with her and asked her to go. To my mind, this proves the facts that clearly penetrative sexual intercourse was established. This is in line with the view adumbrated in Lucky Vs State (2016) LPELR – 40541 SC Per Rhodes – Vivour JSC, who stated that:
“The prosecutrix gave evidence that the appellant had sexual intercourse with her. It was confirmed by PW3, the Medical Doctor that there was penetration of the prosecutrix private part. That in law is unlawful carnal knowledge, and rape is complete upon proof of penetration. At the time the appellant had unlawful sexual intercourse with the prosecutrix, she was only 11 years old, and so incapable of giving consent in view of the provisions of Section 30 the Criminal Code (a) and (b) above have been proved beyond reasonable doubt.”
It is also the argument of the counsel, that a person cannot be convicted of a rape of a girl under 14 years of age upon uncorroborated evidence of one witness. See Upahar Vs State (2003) 6 NWLR (Pt.816) 231.
The prosecution replied that, corroboration in a case of rape like the one at hand is not a requirement as a matter of law, see Ogunbayo Vs State (supra).
He further submitted that if however, assuming that the testimony of PW4 who testified on oath requires corroboration, the exhibits A1 and A2, DW1 emphasized the fact he was thoroughly tortured to admit the commission of the alleged offence by the Police.
I am however begged to disagree with the defence counsel. With due respect to this argument, the DW1 did not testified that the vigilante tied his hand and on the Electric pole until he confessed to the act. But then there is no any evidence where the defendant said he was tortured by the Police. It is the evidence of PW1 that after putting the word of caution to the defendant in Hausa language he recorded his statement. And under cross examination by the defence counsel, the PW1 said he recorded the statement at the General Investigation Department of the State CID in the presence of five people in the office. This piece of evidence of PW1was corroborated by DW1 under cross examination by the prosecution were he testified that he gave statement to the Police at State CID. This clearly shows that the defendant was never tortured by the Police before making his statement. In the case of State Vs Gwangwan (2015) LPELR – 24837 SC, it was held by Okoro JSC at P. 26-27 that where the accused during trial retracts from his extra-judicial statement the trial Judge should test the veracity or otherwise of such statement by testing it or comparing it with other facts and circumstances outside the statement.
He said in circumstance of a retraction of a confessional statement, this Court held in Hassan Vs State (2001) LPELR – 1358 (SC) at Pp. 12-13 that:
“However, it is very usual for an accused person to retract, deny or resile during his trial in the Court from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arrangement against him. In such cases, the law casts a duty on both the accused person who made the subsequent denial to impeach his earlier statement and on the trial Judge who is to test the veracity or otherwise of such statement by testing it or comparing it with other facts and circumstance outside the statement or in order to see whether they support, confirm or correspond with the said statement which will then be regarded as correct. In other words, the statement be subjected to scrutiny by the Court in order to test its truthfulness or otherwise in line with other available evidence and circumstance of the case.” See also Nwosu Vs State (1998) 8 NWLR (Pt.562) 433.
In the defendant extra-judicial confession exhibit A1 and A2, the defendant supposedly gave various accounts of how he had sexual intercourse with PW4 to which he described how he took her to his friend house Dauda Mato and had sexual intercourse with her. And it is the evidence of PW3 the father of the prosecutrix that while coming back from farm, he met assemblage of people at the motor park where he asked what is happening when he was told that it was the defendant and Dauda that were caught raping a girl. (The Dauda whom the defendant alleged to have took PW4 to his house when having carnal knowledge with her). And it is trite that for a confession to amount to an admission of guilt, it must be positive, direct and unequivocal as to the commission of the offence for which the defendant is charged.
In the instant case therefore, the admission amount to confession and I so hold.
Therefore, having regards to the relevant facts of this case such as the evidence that narrated how the defendant was met at the vigilante office together with Dauda by PW3 the father of PW4 and the testimony of PW1 the IPO that recorded the confessional statement of the defendant and the evidence of the prosecutrix PW4 together with such other facts which have been shown from Exhibit FMC1 clearly complement the prosecutrix evidence and make the overall picture of the conduct of the defendant in the committing of the offence charged.
Therefore, on the overall view of all the evidence adduced by the prosecution as to the facts of alleged sexual intercourse with the prosecutrix, I do not see any risk indeed in arriving at the ultimate verdict of guilt against the defendant on the charge of rape of 10 years old girl contrary to Section 3 of the Penal Code (Miscellaneous Amendment) Law No. 19, 2014 Laws of Jigawa State.
On the whole, on all the facts do found and considered in this Judgment and having regards to all the submissions of law made therein, I hold that the charge of rape under Section 3 of the Penal Code Law 2014 has been proved against Rabiu Usman. I hereby convict him for the offence charged. (See Pages 44 – 47 of the Records of Appeal)

Dissatisfied with the above findings and decision of the lower Court, Appellant brought this appeal, as per the Amended Notice of Appeal, filed on 18/6/2021 and deemed duly filed on 7/10/2021, disclosing a lone ground of Appeal. Appellant filed his Brief of Arguments on 18/6/2021, which was also deemed duly filed on 7/10/2021. Appellant distilled 2 Issues for the determination of the Appeal, as follows:
(1) Whether, having regards to variance between the charge upon which the Appellant was tried at the trial Court and the evidence in proof of the said charge, the Respondent indeed proved the offence of rape against the Appellant beyond reasonable doubt.
(2) Whether on a calm review of the evidence on record, particularly, the evidence of innocence in favour of the Appellant and material contradiction in the case of the Respondent (Prosecution) at the trial Court, the conviction and sentence of the Appellant is correct and ought not to be set aside by this Honourable Court.

Appellant did not relate any of the two Issues for determination to the sole ground of the Appeal.

The Respondent filed its brief on 30/7/2021, which was also deemed duly filed on 7/10/2021. The Respondent raised a lone issue, namely:
“Whether the Respondent at the trial Court had proved the offence of rape against the Appellant beyond reasonable doubt?”

The Respondent also filed a Cross-Appeal (which shall be treated, separately, later).

Arguing Issue one of the Appeal, on 24/11/2021, Appellant’s Counsel, Olukayode Ariwoola Jnr., Esq said there was a gulf of war between the charge upon which Appellant was prosecuted and convicted and the evidence led in support of the charge. Hence the prosecution failed to prove the charge. He said that the charge talked about offence committed sometime in 2016, but evidence presented offence committed in 2017!

On Issue 2, Counsel said the conviction and sentence of Appellant cannot stand in view of the evidence of innocence of Appellant and material contradiction in the case of the prosecution.

RESOLUTION OF THE ISSUE
There is a fundamental flaw or defect in the argument of the Appeal by Appellant, that cannot be glossed over and so this Appeal cannot be determined on the merits. Appellant had formulated a sole ground of Appeal in the Amended Notice of Appeal filed on 18/6/2021 (deemed duly filed on 7/10/2021) to challenge the Appeal but in formulating the issue for the determination of the Appeal, Appellant formulated two Issues for determination of the Appeal. That cannot be done!

The law is trite, and we have stated several times, that a party (or Counsel) cannot split a ground of Appeal to generate two or more issues for determination of Appeal, as that amounts to proliferation of Issues. See the case of North West Petroleum & Gas Company Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR – 55509 (CA), where we held:
“…he (Counsel) split many of the grounds of appeal to donate several issues for determination in a manner quite offensive to the rules and procedure for arguing appeals. The law is trite, that whereas Appellant can combine two or more grounds of Appeal to generate an issue for the determination of appeal, he cannot split a ground of appeal to raise several issues for determination of the appeal. That is to say, that the moment an Appellant has distilled an issue from a given ground(s) of appeal, he cannot thereafter, use the said (used) ground(s) of appeal to generate another issue for the determination of the appeal, as that would amount to the proliferation of issues. See the case of A.G. Imo State Vs Imo Rubber Estate Ltd and (Ors) (2019) LPELR-47579 (CA); Phillips Vs Eba Odan Commercial & Industrial Co. Ltd (2012) LPELR-9718 (SC); Ugo Vs Obiekwe (1989) 2 SC (Pt. 11) 41. Of course, it is trite, that once Appellant has distilled an issue for determination of appeal from a given ground(s) of appeal, that ground (or grounds) of appeal ceases to be available to donate another issue for determination of the appeal. In that case of A. G. Imo State Vs Imo Rubber Estate Ltd & Ors (supra), this Court held: “Appellants, in particular, committed proliferation or multiplicity of the issues, as they raised multiple issues for determination of the appeal from the same ground(s) of appeal, and misled the other parties into the same error. They (Appellants) distilled their issue one from grounds 2, 5 and 6 of the appeal and, at the same time, distilled issue 2 from grounds 1, 3, 4 and 5, and issue 3 from the same grounds 3, 5 and 6, while also using the same grounds 2 and 5 to distill issue 4, and the same grounds 1, 5 and 6 (together with ground 9) to distill issue 5. Thus, grounds 1, 2, 3, 4, 5 and 6 were split to generate different issues – 1, 2, 3, 4 and 5, resulting in unpardonable procedural/legal confusion, absurdities and impossibilities, when it comes to the rules of argument of appeal. The law is trite that one cannot split a ground of appeal to generate different issues for the determination of appeal. It is also the law that, once a given ground of appeal has been used to distill an issue for determination of appeal, that ground ceases to be available to be used, either alone, or in conjunction with another ground(s) of appeal to generate another issue for the determination of the Appeal.” See Marcathy Vs Tope (2012) All FWLR (Pt. 648) 833; Nwaigwe Vs Okere (2008) All FWLR (Pt. 413) 843; Oseni Vs Bajulu (supra); Blessing Vs FRN (2013) 12 WRN 36. See also Aduba & Ors Vs Aduba (2018) LPELR-45756 CA; Egbebu Vs IGP & Ors (2016) LPELR-40225(CA) and Okuwa & Anor Vs Ngere & Anor. (2020) LPELR- 49716 CA, where we also held: “Having used the said ground one to formulate the issue one for the determination of the appeal, the said ground one of the appeal ceased to be available to donate another issue for determination of Appeal… See also Nigerian Agricultural Co-op. Bank Ltd Vs Lewechi Ozoemelam (2016) LPELR-26051 (SC).”

In this case Appellant had however made a confessional statement admitting the commission of the offence and the confessional statement (Exhibits A1 and A2) was admitted without any objection. See the case of Ichita & Anor Vs Ichita (2017) LPELR – 42074 (CA), on the effect of such admission where this Court held:
“Can Appellants therefore, raise appeal against the admission of those documents, which they never challenged their admissibility at the Court below? I think not. See the case of John & Anor Vs The State (2011) LPELR – 8152 (SC): “The contention that Exhibit 3 was inadmissible because it was not tendered by the maker is in the circumstance of no moment. Besides, when the said Exhibit 3 was about to be tendered, there was no objection by the learned Counsel for the defence… Having not objected to the admissibility of the confessional statement (Exhibit 3), this omission translates to the fact that the 1st Appellant was comfortable with the admission and saw no reason to challenge its admissibility. In a situation like this, the Court is at liberty to ascribe probative value to the document as succinctly put in the case of Alade Vs Olukade (1976) 2 SC 183…”
In the case of Ajibade Vs State (2012) LPELR – 15531 (SC), the Supreme Court held:
“Where a confessional statement is therefore admitted without any objection, the irresistible inference is that same was voluntary and a Court can rightly convict on the basis of the admission contained therein.” Per Ogunbiyi JSC.

Of course, there is no point considering all these, as the Appeal is defective and the defect is incurable, there not being a valid argument of the Appeal. The Appeal is accordingly struck out for incompetence.

CROSS APPEAL
The Respondent had filed a Cross Appeal in this matter, as per the Notice of Cross Appeal, filed on 11/2/2021. See the Supplementary Records of Appeal, transmitted to this Court on 12/2/2021.

The Cross Appellant filed a Brief of argument on 2/9/2021, which was deemed duly filed on 7/10/21. It distilled a lone Issue for determination, as follows:
“Whether the Learned Trial Judge has discretion or power to alter a mandatory sentence, stated in the Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014 of Jigawa State, which came into force on the 29th December, 2014?

The Cross Respondent filed his Brief on 22/11/2021 and conceded to the Cross Appeal (where this Court found no merit in the main Appeal).

In Paragraph 3.3 of the Cross Respondent’s Brief, the Counsel said:
“… I submit that in the unlikely event that your Lordships do not find merit in the main Appeal, then the mandatory sentence has to be imposed and therewith allow this Cross Appeal. However, if the main Appeal is allowed, then your Lordships are urged, with the greatest respect, to summarily dismiss this Cross Appeal…” See Pages 3 – 4 of the Cross Respondent’s Brief.

I commend the Learned Counsel for Cross Respondent for that mature spirit of demonstration of the knowledge of law, therefore not being unnecessarily combative over a straight forward prescription of the law.

By the provision of Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014, Section 283 of the Penal Code Law was deleted, and replaced with the following provision:
“Notwithstanding the provision of any other law to the contrary, but subject to Section 285B, whoever commits rape shall be punished for life or for a term of not less than ten years and, where the rape committed falls under Paragraph (e) of Section 282(1), shall be punished with imprisonment for life.”
Of course, Section 282(1), (e) of the Penal Code is to the effect that:
“A man is said to commit rape when, save in the case referred to in subsection (2), has sexual intercourse with a woman in any of the following circumstances… (e) with or without her consent, when she is under fourteen years of age or of unsound mind.”
Counsel had submitted that Appellant having been convicted for raping the 10 year old girl, the trial Court had no discretion to exercise in the matter and should have imposed the life jail prescribed by the law on the Appellant. He relied on the case of Muazu Vs State (supra) and Lawrence Vs FRN (2018) LPELR – 44510 CA.
I see merit in this Cross Appeal, even as the Cross Respondent’s Counsel, conceded. The trial Court had no room to exercise any discretion in the circumstance, other than impose the mandatory sentence, stated by the law – Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014, which gives life imprisonment for one who rapes or has carnal knowledge of a girl below 14 years of age or of unsound mind. See the case of Lucky Vs State (2016) LPELR – 40541 (SC), where it was held:
“Once the Court convicts an accused person for offence of rape, as defined in Section 357 of the Code, it has no discretion but is bound to obey the law by imposing a term of imprisonment for life.”
I therefore allow the Cross Appeal and set aside the sentence of 21 years imprisonment, imposed by the trial Court on Appellant, and in its place, impose the mandatory provision of the Penal Code (Miscellaneous Amendment) Law, No.9 of 2014, that is, life imprisonment. Appellant shall therefore serve life imprisonment for raping the 10 year old girl – PW4.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Ita Mbaba, JCA and I am in complete agreement with the reasoning and conclusions reached.

The Respondent/Cross-Appellant’s cross appeal challenged the sentence of the term of imprisonment awarded by the trial Court on the ground that by the Provision of Penal Code (Miscellaneous Amendment) Law No. 9 of 2014 of Jigawa State, Section 283 of the Penal Code was amended and replaced with the following:
“Notwithstanding the provisions of any other law to the contrary, but subject to Section 285 B, whoever commits rape shall be punished for life or for a term of not less than ten years and where the rape committed falls under Paragraph (e) of Section 285(1), shall be punished with imprisonment for life.”
It can be seen that the above provision created two different types of sentences of a term of not less than 10 years and also life imprisonment. However, where the offence committed falls under paragraph (e) of Section 282 or on the other hand where the prosecutrix is under 14 years at the time of the commission of the offence, then the convict shall be punished for life imprisonment. There are the two limbs regarding the sentence of a convict for the offence of rape. The first limb may admit an exercise of discretion by a Court, whereas if the prosecutrix is under the age of 14 years, the second limb becomes activated and the mandatory penalty is life imprisonment. This is so because of the terminology used in the above provision. Though, there are instances when depending on the terminology used in prescribing the punishment for an offence, a trial Court possesses some discretion in determining the sentence to impose on a convicted person, and this is especially so where a statute provides a maximum sentence, as opposed to a mandatory one for an offence. See Nigerian Army Vs Iyela (2008) 18 NWLR (Pt 1118) 115; Tanko Vs State (2009) 4 NWLR (Pt 1131) 430 and Amoshima Vs State (2011) 4 NWLR (Pt 1268) 530. The penalty imposed by the section where the offence is committed against a girl below the age of 14 years is life imprisonment and from the wordings of the provision, it is a mandatory sentence as opposed to the maximum sentence for conviction on a rape of a woman.
In view of the fact that the penalty for rape of a minor under 14 years is life imprisonment, the Court has no option than to impose the penalty once a conviction for rape is had. The reason of my discourse here, is that I noticed the attitudes and reluctance of Courts in the state to impose the mandatory penalty after conviction. It cannot be an oversight but deliberate act with due respect and that is not helping the course of justice. The Court cannot by their act be amending the provision of Section 283 of the Penal Code (as amended) by imposing a penalty different from the penalty imposed by the section. This type of attitude has been deprecated by the Supreme Court in Lucky Vs State (2016) LPELR-40541 AT 39; where Ngwuta, JSC (of blessed memory) held thus:
“The sentence imposed by the trial Court is not only a contradiction in terms of the Court’s stated intention to reduce jurisdiction of the offences of rape and defilement, but a contemptuous and contumacious departure or derogation from, as well as a violation of the provisions of Section 358 of the Criminal Code (supra) under which the appellant was convicted…Once the Court convicts an accused person for the offence of rape as defined in Section 357 of the Code, it has no discretion but is bound to obey the law by imposing a term of imprisonment for life.”
See Bashir Vs Kano State (2016) LPELR-41561; Muazu Vs State (2018) LPELR-46768 and State Vs Ali (2020) LPELR-50039. It is therefore mandatory for the trial Court to pass the sentence in accordance with the law under which it convicted the accused person.

It is for the above and fuller reasons advanced in the lead judgment of my learned brother, I too dismiss the appeal and allow the cross-appeal. I also abide by all of the consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, Ita G. Mbaba, JCA in this appeal. I am in total agreement with my learned brother that the appeal is unmeritorious. The appeal is also dismissed by me.
I abide by the consequential orders therein.