YUSUF v. STATE
(2022)LCN/16652(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, January 28, 2022
CA/KN/21C/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
IBRAHIM YUSUF APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY WHO DID NOT OBJECT TO THE TENDERING OF A CONFESSIONAL STATEMENT CAN PROTEST AGAINST THE STATEMENT ON APPEAL
A party who did not object to the tendering of a confessional statement, when it was put in evidence, cannot protest against the statement, on appeal, or seek to deny making the statement, voluntarily. A confessional statement can only be challenged, when it is tendered (and at that time possibly call for trial-within-trial on its voluntaries), not on Appeal. See Sunday Vs FRN (2018) LPELR – 46357 (SC), where it was held:
“…The appellant, as an accused thereat, admitted committing the offence he was charged with in tandem with his voluntary confessional statement (Exhibit A). The challenges or attacks on the confessional statement arose only at the Court below. It is therefore not an issue or case of “retracted confession” since the appellant had never testified in the case. All the challenges posed by the learned counsel for the appellant did not relate to want of voluntariness of this confession due to either duress, promise, torture or inducement applied by the investigator(s)of the case or the non-calling of either any interpreter or the recorder of such statement which would have obviously rendered the statement inadmissible. It is trite law, that where a person makes a free and voluntary confessional statement which is direct and positive and is properly proved, a trial Court can comfortably convict him even on such confessional statement alone, without necessarily looking for any corroborative evidence. See Kim v State (1992)4 NWLR (pt.233)17; Queen v Itule (1961)2 SC NLR 183; Ejinima vs State (1991)6 NWLR (pt.200)627; Smart v State (2016) EJSC Vol.36)145; Egbogbonome V The State (1993)7 NWLR (pt.306 383; Oseni Vs The State (2012)5 NWLR (pt.1293)351. It is in fact a well-settled law that a Court can convict an accused person based on his confession alone in as much as it is satisfied with the truth of such confession. See Yahaya V The State (1986)12 SC 282; Stephen vs The State (1986)5 NWLR (pt.46)978. In other words, once a Court is fully convinced of the truth of a confession, such confession or extra-judicial statement alone can ground a conviction. See also Edhigere v State (1996) 8 NWLR (pt.464); Aremu v State (1991)7 NWLR (pt.201)1. PER MBABA, J.C.A.
THE POSITION OF LAW ON THE PENALTY FOR THE OFFENCE OF RAPE OF A MINOR
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 a 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. PER LAMIDO, 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/82C/A/2019, delivered on 10th December, 2020, delivered by Hon. Justice Musa Ubale, wherein Appellant was convicted for rape of PW3, under Section 3 of the Penal Code (Miscellaneous Amendment) Law, 2014 of Jigawa State and sentenced to twenty-one years imprisonment. He was also convicted and sentenced to 5 years imprisonment for Gross Indecency committed against PW1 and PW2.
At the lower Court, Appellant was accused as follows:
“That you Ibrahim Yusuf ‘M’ sometime in the month of May 2017, at Kangire Village, Birnin-Kudu Local Government, within Jigawa Judicial Division, committed rape on one Zainab Dahiru ‘F’ aged 6 years, Ummi Dahiru ‘F’ aged 5 years, Fiddausi Mohammed ‘F’ aged 5 years and Khadija Dahiru ‘f’ aged 4 years, in that you lured them into your room by giving them money to mount swings and had sexual intercourse with them one after another, and thereby committed an offence, contrary to Section 282(1)(e) of the Penal Code, Cap. P3 Laws of Jigawa State, 2012 and punishable under Section 3 of the Penal Code (Miscellaneous Amendment) Law, 2014.”
The 2nd count charged Appellant with gross indecency against three minor girls to wit:
Zainab Dahiru aged 6 years, Ummi Dahiru aged 5 years and Firdausi aged 5 years by inviting them into his room in his film house and removed their clothes and inserted his fingers in the vagina of each of them, offence punishable under Section 285A of the Penal Code, (Miscellaneous Amendment) Law of Jigawa State, 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 held the appellant guilty of the offence and said:
“I must say that PW1, PW2 and PW3 being the prosecutrix all testified to the effect that the defendant had sex with them in his viewing house. PW1 and PW2 said he had sex with them in the absence of PW3 and Firdausi whom he sent to find N200 change. But the Doctor that examined them testified that both PW1, PW2 and Firdausi were never raped as no any abnormality was found in their Vaginas and the medical report contained in Exhibit H1-H4 is in corroboration with the evidence. The confessional statement which the prosecution hammered more on, also did not disclosed (sic) the confession on the having carnal knowledge to (sic) the prosecutrix but rather inserting the defendant finger inside the victims Vaginas. With respect to the PW3 however the Doctor testified that they found that there was vulvar aldema and bruises around the Vagina and the hymen was not normal and there was pulse smelling discharge coming out from the Vagina. And that when the consultant reviewed her condition he noticed a foreign body inside the Vagina and ordered for its removal. Under cross-examination by the Defence Counsel, the witness stated that while conducting examination on PW3, they noticed that there is penetration into her Vagina. In her evidence, PW3 testified that the defendant took them into the room, asked them to lied (sic) down and removed their rapper and put her on top of his thigh and a sponge inside her private part. She said he put hard thing into her private part. He removed his penis and put in her Vagina and washed it and asked her to drink but she refused. This testimony can be viewed vividly by me having regard to the age of the prosecutrix, who testified before me while she was seven years; can vividly explain what happened to her about three years ago. Under cross-examination, the witness said the defendant started having sex with PW1, followed by PW2, then Fiddausi and she was the last. I have keenly observed the witness while testifying talking as if she was playing with her mates, touching chairs closed (sic) to her, not minding that she was before the Court. I really accepted her evidence as saying what she really know (sic), that’s why she cannot differentiate with manhood and something hard to be put in her private part. I am therefore in agreement with learned prosecuting Counsel, that they have established sexual intercourse which led blood to gush out from the PW3’s Vagina as a result of which the defendant inserted the sponge into her Vagina to stop the blood. I further agreed with the prosecution that the case of OGUNBAYO VS. STATE (2007)8 NWLR (pt. 1035) P. 157 is very instructive. I therefore failed to agree with defence that the uncle to the prosecutrix accused the defendant to the alleged offence of (sic) the existence of grudges between them.
Furthermore, I must admit that the change (sic) against the defendant is for the rape of PW3 at the age of 4 years old during the commission of the offence which clearly shows that the prosecutrix was not within the age of giving a valid consent. See S. 283 (e) of the Penal Code Law. Therefore PW3 is incapable of giving valid consent to any act of sexual intercourse. See NATSAHA VS. STATE (2017) LPELR 42359 (SC). It is therefore my view that the testimony of the PW3 and that of PW7 together with Exhibit H3 added up to complete corroboration of the complainant’s allegation and that I am satisfied that-the version of the incidents in question and of the involvement of the defendant in raping the prosecutrix PW3 was the truth which I believed.
Coming to the offence of act of gross indecency against the PW1, PW2 and one Fiddausi which is a charge punishable under Section 285 A of the Penal Code (Miscellaneous Amendment) Law 2014.
It is the submission of the learned defence counsel that the Medical report Exhibit Hi, H2 and H4 has no physical evidence which suggest that the victim have suffered from any sexual assault and the defendant when given evidence denied committing the alleged offence and further stated that it was the uncle of the prosecutrix who inform Wakili that the alleged victims inform their mother that it was the defendant who had an illicit offence (sic) with them. And this is because of the strainged (sic) relationship they had between him, the victim’s uncle and their farther (sic) as a result of Political differences. But I dare remark here that PW5 Magajiya Aihaji Dahiru was the person who put the ball rolling when she observed her stepdaughter, PW3, smelling in her private part as a result of which she even kept her away from them when sleeping.
It was when the uncle of the victim asked her what happened to PW3 that she called and asked her who told her that it was the defendant who called four of them and had sex with them.
This is her evidence and further stated that she told the uncle who advised to report to the vigilante and that is where he reported the matter, her evidence were never contradicted and I so hold.
In their reply, the prosecution submitted that based on the extra-judicial statements of the defendant at both Birnin kudu Division and the State CID (exhibits Al & A2 and BK1 & BK2) are so clear and unequivocal to establish the offence of gross indecency against the defendant.
They further submitted that a free and voluntary confessional statement alone made by the defendant is enough to warrant conviction. He referred to NWACHUKWU VS. STATE (2007) 17 NWLR (pt. 1062) 65. SOLOLA VS. STATE (2007) 11 NWLR (pt. 937) 460.
The prosecution had relied on the confessional statement of the defendant. However, the defendant referred (sic) his confessional statement during his testimony describing it as having been not what he stated to the Police that was recorded and further that it was made involuntarily having been beaten with sticks by the police.
I have keenly perused all the statements made to the police by the defendant and I have compared both Exhibit A1 & A2 with that of Exhibit BK1 & BK2 and the totality of the evidence of the defendant, the defendant did not offered (sic) any evidence within the trial positive enough to establish the involuntary making of the statement. Thus the statements of the defendant were made voluntarily and I so hold. It is therefore trite that free and voluntary extra-judicial confession provides the most satisfactory evidence of guilt. See ONWUMERE VS. STATE (1991) LPELR 2723 (SC) PER AKPATA JSC p.22 paras B-C…
In the instant case, the main issue before me was whether the defendant had sexual intercourse with PW3 and whether he had inserted his finger in the private parts of PW1, PW2 and Fiddausi as he confessed to have committed, which acts amount to the commission of the offence of Act of gross indecency.
Defence counsel submitted further that the accused person denied making any statement but the prosecution tendered two extra-judicial statements purported to have been given by the defendant at Birnin kudu Division & State CID Dutse and which the statement were contradictory to one another.
Counsel referred to Zakari vs. Muhammad (2018) ALL FWLR (pt. 964) 1913 where the Supreme Court held that a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts.
I have gone through the two Exhibits A1 & A2 and BK1& BK2, the two statements are not contradictory on material points. Furthermore, the defendant did not deny making statement to the police, but he ‘stated that what he said was not what the police recorded and that he was beaten at state CID before he gave his statement.
But all the statements were in tandem with one another.
In conclusion therefore, I held that from the totality of the evidence led by the prosecution and the exhibits tendered, the conduct of the accused person had amounted to the offence of rape of PW3 and act of gross indecency against PW1, PW2 and Fiddausi which the prosecution has proved beyond reasonable doubt against the defendant.
On the whole, and on all the facts so found and considered in this judgment and having regard to all the submissions of law made thereon, I hold that the charge of rape under Section 3 of the Penal Code (Miscellaneous Amendment) Law, Law No. 9 2014 Laws of Jigawa State has been proved against the defendant. It is also hold (sic) that the charge of Act of gross indecency under Section 285 ‘A’ of the Penal Code (Miscellaneous Amendment) Law,2014 against PW1, PW2 and Firdausi has also been proved beyond reasonable doubt against the defendant. I therefore convict him for the said offence contained in this charges…” (See Pages 100 – 102 and 104 to 105 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 5 grounds of appeal. Appellant filed his Brief of Arguments on 18/6/2021, which was also deemed duly filed on 7/10/2021. Appellant distilled three (3) Issues for the determination of the appeal, as follows:
(1) Considering the failure to conduct intelligence test for PW1, PW2 and PW3 and non-compliance with statutory special procedure, which is a condition precedent for the acceptance or receipt of the evidence of children below the age of 14, can the noble trial Court rely on the testimonies of PW1, PW2 and PW3, which were given against the tenor of Section 209(1) of the Evidence Act, 2011 in sentencing and convicting the Appellant?
(2) Considering the quality of evidence adduced by the Respondent in this case, can it be said that the Respondent proved penetration beyond reasonable doubt?
(3) Taking into account the diametrical nature of the evidence adduced by the Respondent, as it relates to the offence of Act of Gross Indecency, can it be said that the Prosecution proved the offence of the Act of Gross Indecency beyond reasonable doubt?
Appellant’s Counsel made no effort to relate the above issues to the grounds of appeal, formally, but a close study of the 5 grounds of the Appeal, would reveal that the three Issues derived from the grounds as follows:
Issue 1 appears to flow from grounds 2 and 3 of the appeal which stated as follows (without their particulars):
GROUND TWO:
The learned trial Judge erred in law when His Lordship relied on inadmissible evidence of PW1, PW2 and PW3 to convict the Appellant.
GROUND THREE:
The learned trial Judge erred in law when His Lordship held that the Respondent proved that the Appellant had carnal knowledge of PW3.
Issue 2 appears to flow from ground one, which is on the weight of evidence.
The issue 3 appears to flow from grounds 4 and 5, which stated as follows:
GROUND FOUR:
The learned trial Judge erred in law when His Lordship held that the Respondent proved offence of Act of Gross Indecency against Appellant.
GROUND FIVE:
The learned trial Judge erred in law when His Lordship picked and chose from the evidence of the Respondent to convict the Appellant.
The Respondent filed its brief on 30/7/2021, which was deemed duly filed on 7/10/2021 and distilled 2 issues for the determination of the appeal, namely:
(1) Whether Prosecution had proved beyond reasonable doubt that the Appellant had raped PW3 Khadija Alhaji Dahiru?
(2) Whether the Prosecution had proved the offence of Acts of Gross Indecency against Appellant beyond reasonable doubt?
The Respondent also filed Cross-Appeal, which shall be fully discussed later.
Arguing the appeal on 24/11/2021, Appellant’s Counsel, Olukayode, Ariwoola Jnr. Esq., who settled the brief, argued issues 1 and 2 together.
He said that the Respondent failed, outrightly to prove the elements of the offence of rape, namely:
(1) That the act of sexual intercourse with the prosecutrix.
(2) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.
(3) That the Prosecutrix was not the wife of the accused.
(4) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly, not caring whether the prosecutrix consented or not.
(5) That there was penetration.
He relied on Idi Vs State (2016) LPLER – 41555 (CA) 1 at 9–11; Yakubu Vs State (2015) LPELR – 40867 CA 1 at 16–17; Yusuf Vs State (2018) LPELR – 46718 (CA) 1 at 9–10. He also relied on State Vs Masiga (2017) LPELR – 43474 (SC); Isa Vs State (2016) LPELR – 40011 SC and Ezigbo Vs State (2012) LPELR – 7855 (SC) to acknowledge that the Prosecutrix was only 4 years old at the time of the offence, and so was incapable of giving consent, but said that the prosecution had a duty to prove penetration.
Counsel said the evidence of PW1, PW2 and PW3, as regards penetration, were adduced against the spirit of the provisions of the Evidence Act, 2011 – Section 209(1), he said that such evidence are only admissible, if in the opinion of the Court, they (PW1, PW2 and PW3) possess sufficient intelligence to justify them giving evidence and that, where such evidence were admissible, it required corroboration – Section 209(3) of the Evidence Act.
Counsel said the trial Court did not conduct intelligent tests on PW1, PW2 and PW3, before taking evidence from them. He referred us to pages 4, 5 and 7 of the Records of Appeal, thus he said their evidence were not admissible. He relied on the case of Sambo Vs State (1993) LPELR – 1000 SC on the application of Section 209(1) of the Evidence Act. He also relied on Idi Vs State (2017) LPELR – 42587 CA and Agenu Vs State (1992) 7 NWLR (Pt.256) 749 at 761.
Counsel however said there are legions of authorities showing how the appellate Court treats non-reflection of questions put to the minor to assess her intelligence to give evidence, on the face of the Court records that the trial Judge enjoys the privilege of not reflecting on the Records the questions put to the minor in coming to the conclusion that she is intelligent to answer question, to be competent to testify. But Counsel also argued that compliance with Section 209(1) was mandatory and relied on Mbele Vs State (1990) LPELR – 1854 (SC); Dagayya Vs State (2006) LPELR – 912 (SC); Idi Vs State (2017) LPELR – 42587 (SC); Haruna Vs Kano State (2020) LPELR – 50869 CA.
Counsel said that failure of the Court to show, on the face of the Records of Appeal, compliance with the provisions of Section 209(1) is an indication that there was no such compliance, as the parties and appellate Court have no power to read into the Records of Appeal what was not stated, or contained therein. He relied on Mbele Vs State, to say that failure to comply with Section 209(1) is fatal. He therefore urged us to declare the evidence of PW1, PW2 and PW3 inadmissible; that if this is done, the entire evidence of Prosecution would crumble.
On issue 3, Counsel said the trial Court had relied on both oral and documentary evidence of PW1 to PW7 in sentencing the Appellant. He reiterated that the evidence of PW1, PW2 and PW3 were inadmissible. He adopted the arguments under Issues 1 and 2, to urge us to expunge their said evidence, as being useless to lie conviction and sentencing of Appellant for gross indecency, contrary to Section 285(a) of the Penal Code of Jigawa State. He added that the evidence of PW4, PW6 and PW7 would amount to nothing, having no basis, the moment the evidence of PW1, PW2 and PW3 are expunged. He argued that even if the evidence of PW5, that the minors have been assaulted, would be tolerated, that he, PW5 cannot name the Appellant as the culprit. Counsel tried to pick quarrel with the confessional statement of the Appellant, saying that Appellant had retracted same at the trial, and so, to convict on such retracted confessional statement, the same had to be endorsed by a superior Police Officer (Okudo Vs State (2011) 18 NWLR (Pt.1277)1), in keeping with what is called the Judge’s rule. Counsel said that there was no evidence that the said statement (Exhibit A1, recorded by Sgt. Auwalu Sale – the Hausa version) was read to Appellant, for him to confirm. He submitted that the trial Court wrongly ascribed evidential value to the said statement (Exhibits A1 and A2); that there was need for corroboration of the same.
He urged us to resolve the issues for Appellant and to allow the appeal.
Responding, Counsel for Respondent, the learned Attorney-General of Jigawa State, Dr. Musa Aliyu, stated the three main ways of establishing commission of offence, namely;
1) By confessional statement of the accused;
2) by circumstantial evidence; and
3) by evidence of an eye witness.
He relied on the cases of Okanlawon Vs State (2015) 17 NWLR (pt 1489) 445; Alufohal Vs State (2015) 3 NWLR (Pt 1445) 172 and Dele Vs State (2011) 1 NWLR (Pt 1229) 508.
He submitted that in establishing the commission of offence beyond reasonable doubt, the law does not require proof beyond any iota of doub. See Eke Vs State (2011) ALL FWLR (Pt 566) 430; Abeke Vs State (2007) ALL FWLR (Pt 366) 644 and Paul Vs State (2015) ALL AWLR (Pt 778) 839. Counsel gave the meaning of rape as “forceful sexual intercourse with a girl or a woman without her consent or when by law she is incapable of giving consent.” (Posu & Anor Vs The State (2011) LPELR-1969 (SC).
Counsel stated the essential ingredients of offence of rape, under Section 282 of the Penal Code, as follows:
a. That the accused had sexual intercourse with the prosecutrix (victim);
b. The sexual intercourse was done without her consent, or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation, or when the victim is under the age of 14 years;
c. That the prosecutrix is not his wife;
d. That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly, not caring whether the prosecutrix consented or not, and
e. That there was penetration.
He relied on the case of Lucky Vs The State (2016) LPELR-40541 SC; Iko Vs State (2001) 14 NWLR (Pt 332() 195.
In the instant case, Counsel said, the prosecution had established confession by the Appellant, as well as evidence of the victims, which were corroborated, to establish the offence. He referred us to the evidence of Khadija Alhaji Dahiru (PW3) and the findings of the trial Court on page 101 of the Records of Appeal, where the Court said:
“I have keenly observed the witness while testifying talking as if she was playing with her mates touching chairs closed to her not minding that she was before the Court. I really accepted her evidence as saying what she really know, that’s why she cannot differentiate with manhood and something hard to be put in her private part. I am therefore in agreement with learned prosecuting counsel that they have established sexual intercourse which led blood to gush out from the PW3’s Vagina as a result of which the defendant inserted the sponge into her Vagina to stop the blood. I further agreed with the prosecution that the case of OGUNBAYO VS. STATE (2007) 8 NWLR (Pt.1035) P. 157 is very instructive. I therefore failed to agree with defence that the uncle to the prosecutrix accused the defendant to the alleged offence of the existence of grudges between them.”
Counsel also relied on page 105 of the records, where the trial Court said:
“In conclusion therefore, I held (sic) that from the totality of the evidence led by the prosecution and the exhibits tendered, the conduct of the accused person had amounted to the offence of rape of PW3.”
He also said that the PW3 had told the Court that Appellant had “removed his penis and put in my vagina.” (Page 7 of the Records) Counsel also referred to the evidence of the Medical Doctor PW7, and the Medical Report (Exhibit H2) in respect of PW3, to establish penetration.
On the allegation of omission to comply with the provisions of the Section 209(1) of the Evidence Act, 2011, Counsel submitted that such failure is not fatal, as such would only be an irregularity, which Appellant should have raised objection to, at the trial. He relied on Isah Vs State (2020) LPELR – 50741 CA, where he said the sworn evidence of the minor was still used, on the merits.
On issue 2, whether the prosecution had proved the offence of Act of Gross Indecency against Appellant, Counsel answered in the affirmative. He said that act of gross indecency is established, where accused committed the act upon the person of another and that other person did not consent to the act, or that the accused compelled that other person by use of force or threat to join him (accused) in the commission of the gross indecency.
Counsel conceded that act of gross indecency has not been defined by the Penal Code, but said that the Black’s Law Dictionary, 7th Edition, Page 771 defines it as “the condition or state of being outrageously offensive, especially in a vulgar or sexual way. Indecent assault involves sexual assault.”
Counsel said, it follows therefore, that:
“An act of gross indecency is an act that is grossly or grievously offensive in a vulgar or sexual way. It is an unacceptable sexual activity or behavior forced upon another person against his will or consent and includes the act of inserting ones penis in the mouth of another without that other persons consent or against his or her will. He relied on Muazu Vs State (2018) LPELR – 46768 CA.” Page 41. Per Wambai JCA
Counsel referred us to the findings of the trial Court on Page 105 of the Records and said that it accorded with the above decision in the case of Muazu Vs State (Supra); that the evidence of PW1, PW2 and PW3 and the Confessional Statement (Exhibits A1 and A2) showed that Appellant had removed the clothes of the minors in the presence of each of them and played pornographic video to them – and did indecent act of “fingering” the vaginas of the children. See Exhibits A1 and A2.
Counsel said the said confessional statement of Appellant (Exhibits A1 and A2), strongly, corroborated the evidence of PW1 and PW2 and justified his conviction, his retraction notwithstanding he said that the law is trite, that where confession is found to be voluntary, positive, unequivocal, and the Court is satisfied with its truth, it suffices to ground a finding of guilt, regardless of the fact that the maker resiled from it or retracted, it all together at the trial. See Muazu Vs State (Supra).
Counsel urged us to resolve the issues against the Appellant and dismiss the appeal.
RESOLUTION OF THE ISSUES
I think the germane issues for the determination of this appeal are two, namely:
(1) Whether, upon careful consideration of the evidence on record, including the extra-judicial statement of the Appellant, the trial Court was right to hold that the prosecution had established the offence of rape of the PW3, and Act of gross indecency on PW1 and PW2?
(2) Whether the trial Court was right to rely on the evidence of PW1, PW2 and PW3 to convict the Appellant, in view of the provisions of Section 209(1) of the Evidence Act, 2011.
I shall take the two issues, together. Counsel on both sides had stated what constitutes the ingredients of offence of rape and cited several authorities to support their submissions, particularly, the element of proof of penetration of the victim’s vagina by the assailant. See the case of State Vs Masiga (2017) LPELR-43474 SC where it was held:
“I have stated earlier that there is no doubt that in charge of rape, penetration must be proved… On what prosecution must prove in charge of rape, this Court in Jegede Vs The State (2001) 14 NWLR (sic) (Pt 733) held that:
“Whether the prosecutrix is a minor or an adult, to secure a conviction for rape, there must first be proof of penetration of the vagina and the penetration must be linked with the accused.” Per Bage, JSC.
In that case (State Vs Masiga, supra), My Lord Galinje, said:
“For prosecution to succeed in proving the offence of rape, it must prove:
1. That the accused has sexual intercourse with the woman.
2. That the act was done in circumstances falling under the following:
a. Against her will,
b. Against her consent,
c. With her consent when her consent has been obtained by putting her in fear of death or of hurt
d. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he another man, to whom she is or believes herself to be lawfully married.
e. With or without her consent when she is under fourteen years of age or of unsound mind.
3. That there was penetration. See Ogunbayo Vs State (2007) 8 NWLR (Pt 1035) 157; Upahar Vs State (2003) 6 NWLR (Pt 816) 230; State Vs Ojo (1980) 2 NCR 391; Iko Vs State (2001) 14 NWLR (Pt 732) 221.”
Stating further, My Lord Galinje said:
“The most essential ingredients of rape is penetration, however slight; penetration with or without emission, is sufficient, even where the hymen is not ruptured. The slightest penetration will be sufficient to constitute the act of sexual intercourse. See Iko Vs State (supra), Ogunbayo Vs State (supra).”
In this case, at hand, the victims PW1, PW2 and PW3 were 6, 5 and 4 years old girls, respectively, at the time of the offence. They were lured to the viewing centre operated by Appellant, where they were exposed to videos and lewd films that caused sexual arousal, not meant for little children. He took undue advantage of them to indulge in sexual and indecent acts, taking turns on them.
Being below 14 years old, the girls were incapable of consensual sex – see Section 282 of the Penal Code.
In the case of Natsaha Vs State (2017) LPELR – 42359 (SC), the Supreme Court held:
“It is important to note that under the Penal Code, a child who is under the age of 14 years is incapable of giving consent. See Section 37(c) and 282 (1) (e) of the code. See also Shuaibu Isa Vs Kano State (2016) LPELR-40011 SC.
Therefore, once it is proved that the accused person had sexual intercourse or unlawful carnal knowledge of a girl under the age of 14 years, he is guilty of rape” Per Kereke-Ekun, JSC.
Counsel for the Appellant has argued, strenuously, that the Prosecution did not establish penetration of the victim (PW3) by the Appellant, that the evidence of the victim (PW3) who recounted how she was ravaged (raped) by Appellant needed corroboration, that there was no such corroboration and that the Medical Report (Exhibit H2) and the evidence of PW7 (Doctor) which the Court relied on to corroborate the evidence of PW3, lacked probative value.
Of course, the evidence of the 7 year old victim (PW3) was clear and cogent. She was 7 years old at the time of testifying, but 4 when the offence was committed. She said:
“I know the defendant. I know his name is Ibrahim Yusuf. About 3 years ago we went to take things for grinding, me and Zainab and Ummi and Firdausi, when the defendant called us but we refused and ran away. He asked one Almajiri to catch us. He took us into a room and asked us to lie down and remove our rapper (sic). He put me on top of his thigh and put me sponge inside my private part and put on the blue film and threatened us not to tell anybody at home. I started smelling odour and I was taken to the hospital and the sponge was removed from my private part. The Doctors advise (sic) that I should be sitting in the hot water with salt. He also gave us water in a calabash to drink and (sic) runs home. He threatened us not to tell anybody. We did not tell anybody until after three days when I started smelling odour that we were taken to the Hospital. He just put hard thing into my private part. He removed his penis and put it in my vagina and washed it and asked us to drink but we refused.” See Page 7 of the Records of Appeal.
Cross-examined, she said:
“… It is correct that he washed his penis and asked me to drink but I refused and ran. It is correct that it was after three days that I started smelling that I realized what happened. I don’t know the Almajiri that caught us. We were together with Ummi, Zainab and Firdausi inside the room. We were pushed inside the room. I was pushed inside the room. He started having sex with PW1 then followed by Firdausi then Ummi and I are (sic) the last. The sex happened at different occasion one after the other.” See Page 7 – 8 of the Records.
The PW1, Zainab Alhaji Dahiru 9 years old (6 year at the time of the offence), said:
“… I know the suspect at Kangire sometimes in the year 2017, the defendant invited me to a room and removed my rapper (sic) and he also removed his trouser and had sex with me. He brought a calabash and washed his penis and gave me the water to drink. And I said I will not drink it. He gave me N15, and threatened me with knife that if I tell anybody at home he will kill me. I went home after three days one of us smelled odour so we were taken to the Hospital. We were examined and given medicine. We came back home and we were given a medicine until we recovered. When I say we, I mean we were four that were sexually abused myself, Ummi, Khadija and Fiddausi (sic).” See Pages 4 – 5 of the Records
PW2 – Ummi Alhaji Dahiru, 8 years old (but 5 at the time of offence) said the same thing, that:
“the defendant called us and took us inside a room and put on his blue film video to watch. He put the four of us in front of him. And he told us to remove our rapper (sic). Then he sends Khadija and Firdausi to go and look for change. He asked the two of us me and Zainab, to lie down and he had carnal knowledge with us. And he removed his penis and asked us to suck it and we said we will not suck it, we were taken to the hospital where we were examined and treated.” Pages 5 and 6 of the Records.
Under cross-examination she said:
“…The defendant asked one Almajiri to catch us… The room is inside the viewing center. It was during Magrib time when he put us in the room… Before this incidence, I don’t know the defendant. We lived in the same area with the defendant… It was Zainab who told my mother all that transpired between us and the defendant.” (See page 6 of the Records of Appeal)
Those accounts by the little girls, to say the least, are chilling and traumatizing, for subjecting the little innocent girls to such harrowing and indecent scenes and experiences! Their said evidence were corroborated by the evidence of PW5, Mahajiya A. Dahiru, who said:
“…So my husband brother went and reported to the vigilante who invited the kids to Maiunguwa… I was invited to the ward head and the defendant pleaded with me to forgive him and he will give me ₦50,000 to forgive him. I said I will not forgive him and I went… From there, the vigilante took him to the police and the kids were taken to hospital.” (See page 13 of the Records).
The evidence of the Medical Doctor (PW7) and the medical reports (Exhibits H1-H4) corroborated the stories of the kids. He said, under cross-examination:
“… The four children were brought before our hospital on 5/8/2017, four days after the occurrence of the events. We conducted our examination as soon as the children were brought, at the same time. While investigating Khadija, we maintained there is penetration to her vagina… I observed the smelling coming out from Khadija’s vagina. It may be that the smelling coming out from the victim’s vagina was caused by the foreign body…” (Pages 21 – 22 of the Records)
Testifying in chief, PW7 (Doctor) said:
“sometimes (sic) in the month of May, 2017, on 5th, I was in hospital on call duty, a police sergeant brought four children on the case of sexual assault. After the history of the case, we examined the four children, we found that the three children, Firdausi, Ummi and Zainab, essentially we did not find any abnormality. However, the fourth child Khadija, there was vulgar alderma, and bruises around the vagina, the hymen was also not normal, there was pulse smelling discharge coming out from the vagina. That was four days prior to her coming to the hospital…” (See page 20 of the Records)
Appellant had made confessional statements – Exhibits A1 – A2 (the Hausa Version and the English translation, respectively), admitted without any objection to the voluntariness of the statement (confession). Appellant’s Counsel only challenged the English translation, that it was not signed by Appellant! See pages 11 – 12 of the Records of Appeal. See also page 16 of the Records of Appeal, where the Appellant’s Counsel, Ibrahim Ahmed, Esq said:
“We are not objecting to the admissibility of the statement, but we ought to point out to the Court some issue for the Court to know the weight it will attached (sic) to the document. First, the document was not recorded in the designated form of the public and there is no stamp of the Superior Officer…”
A party who did not object to the tendering of a confessional statement, when it was put in evidence, cannot protest against the statement, on appeal, or seek to deny making the statement, voluntarily. A confessional statement can only be challenged, when it is tendered (and at that time possibly call for trial-within-trial on its voluntaries), not on Appeal. See Sunday Vs FRN (2018) LPELR – 46357 (SC), where it was held:
“…The appellant, as an accused thereat, admitted committing the offence he was charged with in tandem with his voluntary confessional statement (Exhibit A). The challenges or attacks on the confessional statement arose only at the Court below. It is therefore not an issue or case of “retracted confession” since the appellant had never testified in the case. All the challenges posed by the learned counsel for the appellant did not relate to want of voluntariness of this confession due to either duress, promise, torture or inducement applied by the investigator(s)of the case or the non-calling of either any interpreter or the recorder of such statement which would have obviously rendered the statement inadmissible. It is trite law, that where a person makes a free and voluntary confessional statement which is direct and positive and is properly proved, a trial Court can comfortably convict him even on such confessional statement alone, without necessarily looking for any corroborative evidence. See Kim v State (1992)4 NWLR (pt.233)17; Queen v Itule (1961)2 SC NLR 183; Ejinima vs State (1991)6 NWLR (pt.200)627; Smart v State (2016) EJSC Vol.36)145; Egbogbonome V The State (1993)7 NWLR (pt.306 383; Oseni Vs The State (2012)5 NWLR (pt.1293)351. It is in fact a well-settled law that a Court can convict an accused person based on his confession alone in as much as it is satisfied with the truth of such confession. See Yahaya V The State (1986)12 SC 282; Stephen vs The State (1986)5 NWLR (pt.46)978. In other words, once a Court is fully convinced of the truth of a confession, such confession or extra-judicial statement alone can ground a conviction. See also Edhigere v State (1996) 8 NWLR (pt.464); Aremu v State (1991)7 NWLR (pt.201)1. It is apt to state here that in the case at hand, the trial Court did not only rely on the voluntary confessional statement of the appellant (Exhibit A), but also it relied on the unequivocal and clear admission by him of the commission of the offence he was charged with when he unhesitatingly and clearly admitted his guilt at the Court in the presence of counsel of his choice when the charge was duly and properly read and explained to him.
See also the case ofIchita & Anor Vs Ichita (2017) LPELR – 42074 (CA), where this Court held:
Can Appellants, therefore, raise an 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 omissions 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 voluntarily and a Court can rightly convict on the basis of the admission contained therein.” Per Ogunbiyi JSC.
The trial Court, after reviewing the evidence and the exhibits, had said:
“This testimony can be viewed vividly by me having regard to the age of the prosecutrix who testified before me while she was seven years, can vividly explain what happened to her about three years ago. Under cross-examination, the witness said the defendant started having sex with PW1 followed by PW2, then Fiddausi and she was the last. I have keenly observed the witness while testifying talking as if she was playing with her mates touching chairs closed to her not minding that she was before the Court. I really accepted her evidence as saying what she really knows, that’s why she cannot differentiate with manhood and something hard to be put in her private part. I am therefore in agreement with learned prosecuting counsel that they have established sexual intercourse which led blood to gush out from the PW3’s vagina as a result of which the defendant inserted the sponge into her vagina to stop the blood. I further agreed with the prosecution that the case of OGUNBAYO VS. STATE (2007)8 NWLR (pt. 1035) P. 157 is very instructive.
I therefore failed to agree with defence that the uncle to the prosecutrix accused the defendant to the alleged offence of the existence of grudges between them.
Furthermore, I must admit that the charge against the defendant is for the rape of PW3 at the age of 4 years old during the commission of the offence which clearly shows that the prosecutrix was not within the age of giving a valid consent. See. S. 283 (e) of the Penal Code Law. Therefore PW3 is incapable of giving valid consent to any act of sexual intercourse. See. NATSAHA VS. STATE (2017) LPELR 42359 (SC). It is therefore my view that the testimony of the PW3 and that of PW7 together with Exhibit H3 added up to complete corroboration of the complainant’s allegation and that I am satisfied that the version of the incidents in question and of the involvement of the defendant in raping the prosecutrix PW3 was the truth which I believed.
Coming to the offence of act of gross indecency against the PW1, PW2 and one Fiddausi which is a charge punishable under Section 285 A of the Penal Code (Miscellaneous Amendment) Law 2014.
It is the submission of the learned defence counsel that the Medical report Exhibit Hi, H2 and H4 has no physical evidence which suggest that the victim have suffered from any sexual assault and the defendant when given evidence denied committing the alleged offence and further stated that it was the Uncle of the prosecutrix who inform Wakili that the alleged victims inform their mother that it was the defendant who had an illicit offence with them. And this is because of the strainged (sic) relationship they had between him, the victims uncle and their father as a result of political differences. But I dare remark here that PW5 Magajiya Aihaji Dahiru was the person who put the ball rolling when she observed her step daughter PW3 smelling in her private part as a result of which she even kept her away from them when sleeping.
It was when the uncle of the victim asked her what happened to PW3 that she called and asked her who told her that it was the defendant who called four of them and had sex with them.
This is her evidence and further stated that she told the uncle who advised to report to the vigilante and that is where he reported the matter, her evidence were never contradicted and I so hold.
In their reply, the prosecution submitted that based on the extra-judicial statements of the defendant at both Birnin kudu Division and the State CID (Exhibits Al & A2 and BK1 & BK2) are so clear and unequivocal to establish the offence of gross indecency against the defendant.
I have keenly perused all the statements made to the police by the defendant and I have compared both Exhibit A1 & A2 with that of Exhibit BK1 & BK2 and the totality of the evidence of the defendant, the defendant did not offer any evidence within the trial Positive enough to establish the involuntary making of the statement. Thus the statements of the defendant were made voluntarily and I so hold. It is therefore trite that free and voluntary extra-judicial confession provides the most satisfactory evidence of guilt. See ONWUMERE VS STATE (1991) LPELR 2723 (SC) PER AKPATA JSC p.22 paras B-C wherein he stated that…”
I agree with the findings of the learned trial Judge. Appellant had not actually raised any appeal against those findings. Appellant had rather tried to make some capital out of what he claimed to be non-compliance with Section 209(1) of the Evidence Act 2011 that the trial Court failed to comply with the provisions thereof.
I do not think the trial Court has to reproduce its test to actualize the content of Section 209(1) of the Evidence Act, verbatim, to show that it advised itself properly on the level of intelligence of a minor and his ability to comprehend the truth, before taking down the child’s evidence, whether on Oath or otherwise. The provision of the Section 209(1), in my view, is meant to guide the Court on what to do, and was not meant to be a legislation, to undermine the exercise of discretion by the trial Court. The Section states:
“In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.”
How the learned trial Judge formed the opinion that a child is possessed of sufficient intelligence and understands the duty of speaking the truth, should, in my opinion, be left exclusively, to the trial Judge to make and he need not express the same (how he does it) on the face of the Records of the Court. See Muhammed Vs State (2019) LPELR – 51231 CA; and Idi Vs State (2017) LPELR – 42587 (SC), where it was held:
“Contrary to the submission by the appellant’s counsel therefore, the law, as rightly posed by the counsel for the respondent, does not provide for the reflections of the questions and answers put by the trial Judge to the Pw1 but that Section 209(1) is asking the Court to form an opinion, if Pw1 is possessed of sufficient intelligence to justify the reception of her evidence and understands the duty of speaking the truth. By the counsel asking that the questions and answers are to be recorded in black and white, he is asking for a re-writing of the provision of the law, which is outside his mandate. The capability test is preliminary and it enables the Court to form an opinion as to the competence of a child to testify. Technicality as is sought to play by the appellant’s counsel cannot be accommodated. See also the decision of this Court in the case of Dagayya V. State under reference (supra) and which was also cited by the appellant’s counsel, wherein it was held at page 640 that:- “By the combined effect of Sections 155 and 183 (1) & (2) of the Evidence Act, once a witness is a child, the trial Court must adopt the following procedures: (a) The first duty of the Court is to determine first of all whether the child is sufficiently intelligent to understand the questions he may be asked in the course of his testimony and to be able to answer rationally. This is tested by the Court putting to him preliminary questions which may have nothing to do with the matter before the Court. (b) If, as a result of these preliminary questions, the Court comes to the conclusion that the child is unable to understand the questions or to understand the questions or to answer then intelligently, the child is not competent witness within the meaning of Section 155(1). But if the child passes the preliminary test, then the Court must proceed to the next test as to whether, in the opinion of the Court, the child is able to understand the nature and implication of an oath. (c) If after passing the first test, he fails the second test then being competent witness, he will give evidence which is admissible under Section 183(2), though not on oath. If, on the other hand, he passes the second so that in the opinion of the Court, he understands the nature of an oath, he will give evidence on oath.” As rightly re-iterated by the respondent’s counsel and contrary to the contention held by appellant, there is no where it is made a requirement that the trial Judge must record the preliminary questions and answers he put to the child in the record of the Court. The said contention sought by the appellant, I hold, is not a requirement of the law and therefore not within reason. The purpose for the requirement is rather meant for the trial Judge to form an opinion whether the child understands the nature of an oath and possesses intelligence enough to give evidence before it.” Per OGUNBIYI, JSC
I cannot therefore, see any merit in this appeal and I think what the Appellant did to these little children of 4 to 6 years old in the video centre, violating them and leaving them with such cruel and bruised psyche, which tends to see a wicked monster of a male gender, should jolt every sane mind!
I see no merit in this appeal and so dismiss it and affirm the decision of the trial Court.
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 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 if 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 PW3 (and gross indecency on the other girls), the trial Court had no discretion to exercise in the sentence for rape 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 and indecently assaulting the PW3 and the other minors.
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 offense. 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 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 a 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 cross-appeal is also allowed by me.
I abide by the consequential orders therein.
Appearances:
OLUKAYODE ARIWOOLA JNR For Appellant(s)
DR. MUSA ADAMU ALIYU, HON. A.G. JIGAWA STATE For Respondent(s)
