Legalpedia Citation: (2023-05) Legalpedia 39005 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Fri May 26, 2023

Suit Number: CA/K/323/C/2020

CORAM

AMINA AUDI WAMBAI JCA

MOHAMMED BABA IDRIS JCA

MUSLIM SULE HASSAN JCA

PARTIES

COMMISSIONER OF POLICE

APPELLANTS

SAM ATER

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

At the trial the Respondent (accused person) was accused of rape. Two (2) witnesses were called namely – a police officer and the victim (an eleven (11) year-old girl) while the Respondent testified on his behalf.

While delivering its judgment, the trial court held that there was no sufficient evidence to prove the ingredients of the offence of rape, and that the evidence of the victim who is an 11-year-old girl needed corroboration and that there was none. The trial court further questioned the medical report brought to prove the offence. The Court also held that the Appellant failed to prove the guilt of the Respondent beyond reasonable doubt and even charged the Respondent under the wrong law. The Respondent was subsequently discharged and acquitted.

Dissatisfied with the judgment, the Appellant made the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø Whether the Appellant by way of credible evidence, proved the ingredients of the offence of rape against the Respondent beyond reasonable doubt?

RATIONES DECIDENDI

PROOF BEYOND REASONABLE DOUBT – MEANING OF PROOF BEYOND REASONABLE DOUBT

In any criminal proceeding, the prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 135 of the Evidence Act 2011. This burden remains on the prosecution and does not shift. Proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. If the evidence is strong against a person as to leave only a remote probability in the mind of a reasonable man, the case is proved beyond reasonable doubt. The principle of natural justice, equity, and good conscience, nemo judex in causa sua, restrains the court from usurping the function of the prosecution under the Nigerian adversarial jurisprudence. That is, the court must be an unbiased umpire and must not descend into the arena of conflict. – Per M. B. Idris, JCA

RAPE – INGREDIENTS OF THE OFFENSE OF RAPE

At this juncture, it is pertinent to examine the ingredients of the offence of rape.

In the case of ABDU VS. STATE (2021) LPELR – 55097 (CA) (Pp. 20 – 21 PARAS. E), it was held per Talba, JCA that:

“The Appellant was arraigned on a one count charge of rape pursuant to Section 257 and punishable under Section 258(1) and (3) of the Penal Code Law of Kaduna State, 2017. The essential ingredients required to be established are as follows: (a) against her will or (b) without her consent or (c) with her consent when consent has been obtained by putting her in fear of death or of bodily harm or (d) with her consent when the person knows that he is not the person’s spouse and that the consent is given because the person believes that he is another man to whom she is or believes herself to be lawfully married or (e) with or without her consent when she is of unsound mind or below 14 years old.”

Furthermore, in the same case of ABDU VS. STATE (SUPRA) (PP. 39 – 40 PARAS. F) it was held: “The law does not require her consent to the commission of the offence of rape. Section 257(1) and (2), (e) of the Kaduna State Penal Code Law, 2017 provides inter alia; “With or without her consent when she is of unsound mind or below fourteen years old.” And in the case of ADONIKE V. STATE (2015) 1 MJSC 228 PARAS C-D the Supreme Court held thus; “This is well laid down position of the law, that a girl under the age of 11 is a child and so is not capable of consenting to sex. The Court would hold that she did not consent even if she did consent. A child cannot consent to sex, that is the position of the law.”

From the above cited case, it is clear that the ingredients of rape the Appellant has the onus to prove at the trial court are:

(1) The Respondent had sexual intercourse with the victim.

(2) The victim was a child, less than 14 years old so consent need not be proved.

(3) There was penetration. – Per M. B. Idris, JCA

INVESTIGATING POLICE OFFICER – DUTY OF AN INVESTIGATING POLICE OFFICER

INVESTIGATING POLICE OFFICER – DUTY OF AN INVESTIGATING POLICE OFFICERIn the case of OBOT VS. STATE (2014) LPELR – 23130 (CA), it was held per Ndukwe-Anyanwu, JCA that:

“…it appears the learned Appellant’s counsel does not appreciate fully the job description of an investigating Police officer. He just investigates crimes. Invariably an Investigating Police Officer is hardly ever at the crime scene. His investigation comes after the crime had been committed. An Investigating Police Officer obtains statements from accused persons and witnesses alike. He thereafter testifies in court giving a synopsis of what he did during the investigation. He tenders the statements of both accused and in some cases that of witnesses. He also tenders some documents and exhibits obtained during investigation. The Investigating Police Officer therefore gives direct evidence as to what he has done during the investigation of the crime. The evidence of the Investigating Police Officer is not by any standard hearsay. He gives an account of what he has done in the process of his investigations.”

The testimony of the PW1 cannot be said to be hearsay evidence since her job as the Investigating Police Officer, is to give direct evidence of her findings even if she garnered such information from another person. – Per M. B. Idris, JCA

 

MEDICAL REPORT – WHETHER MEDICAL DOCTOR NEEDS TO TESTIFY BEFORE THE COURT ON MEDICAL REPORT

The learned counsel for the Respondent has argued and made heavy weather on the fact that the maker of the medical report was not called and thus, it amounted to hearsay evidence.

In the case of AYUBA VS. STATE (2012) LPELR – 56550 (PP. 27 – 28 PARAS. F), it was held per Lamido, JCA that:

“The law is well settled that failure to call the Medical Doctor to testify is not fatal to the case of the prosecution. This is because it is not in all cases of rape the evidence of Medical Doctor is required. The need for the evidence of the maker of the report arises only where the accused disagrees with the report or where it appears desirable. In this appeal, the medical report was tendered without objection from the Appellant, it is therefore too late in the day for the Appellant to challenge the absence of a Medical Doctor on appeal when he had an opportunity to object to the admissibility of the same medical report tendered through the bar but failed to. It is not the law that the Medical Doctor must testify before the court can rely on the medical report tendered and admitted in evidence without objection. See BUBA VS. THE STATE (1992) 1 NWLR (PT. 215) 132.”

The Supreme Court has held in the case of ALI VS. STATE (2020) LPELR – 53409 (SC) (PP. 16 – 18 PARAS. D) per Ariwoola, JSC that:

“It is noteworthy that the learned appellant counsel had attacked the medical report – Exhibit C on the ground that it was not tendered by the maker to be available for cross examination by the appellant. This is unfortunate and there is a misconception by the counsel. It depends on the purpose for which the said medical report was being tendered. Generally, by the provisions of the Criminal Procedure Code, a medical report may be admitted in evidence for the purpose of proving the nature of any injuries received by such a person. On the admission of such report, 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. If by reasons of any such disagreement or otherwise it appears desirable for the ends of justice that such medical report officer or registered medical practitioner shall attend and give evidence in person, the court shall summon such medical officer or registered medical practitioner to appear as a witness. See Section 249 (a) – (c) of the Criminal Procedure Code. In other words, in practice and procedure, a medical report need not be tendered by the medical officer or practitioner who prepared or made same. See Mohammed Sarki Fulani M. Vs. The State (2018) LPELR – 45195 (SC). There is nothing on record to show that the learned counsel prayed the court to summon the Medical Officer who examined the prosecutrix and prepared the report admitted as Exhibit C for the purpose of being cross examined. The medical report was therefore properly admitted in evidence by the trial court. It was relevant and admissible in the circumstance. The trial court was right to have relied on same on the findings therein on the alleged sexual assault on the prosecutrix – PW5. The medical report indeed materially corroborated the unsworn testimony of PW5 who was the victim to the effect that she was sexually assaulted.”

Going by the foregoing authorities, the argument of the Respondent that the said medical report marked as Exhibit B amounted to documentary hearsay evidence cannot hold water because there is no law that requires that the maker of the medical report must be called to tender it. The attendance of the maker can be dispensed with as long as there are other evidences on record to support the prosecution’s case. – Per M. B. Idris, JCA

 

VITAL WITNESS – MEANING OF A VITAL WITNESS

I agree with the Appellant’s submission that they are not obliged by law to call all witnesses and that failure to call the medical doctor is not fatal to their case. However, it is very fatal to a prosecution’s case when it fails to call the vital witness. In the case of OCHIBA VS. STATE (2011) 17 NWLR (PT. 1277) PAGE 663 AT 696 PARAS A – B, it was held that:

“A vital witness is a witness whose evidence may determine the case one way or the other and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.”

In the case of STATE VS. NNOLIM & ANOR (1994) LPELR – 3222 (SC), it was held per Adio, JSC that:

“The question is: who is a vital witness? A vital witness is a witness whose evidence may determine a case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case.” – Per M. B. Idris, JCA

 

UNCORROBORATED TESTIMONY – EFFECTS OF THE UNCORROBORATED TESTIMONY OF A CHILD UNDER 14 YEARS

In the case of ABDULLAHI VS. STATE (2021) LPELR 56535 (PP. 24 – 25 PARAS. A – A), it was held per Abiru, JCA thus:

“Section 209(1) and (3) of the Evidence Act makes provisions dealing with the evidence of a child under the age of fourteen years. The provisions read that in any proceeding in which a child who has not attained the age of fourteen 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 and that a person shall not be liable to be convicted for an offence unless such unsworn testimony given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant. The courts, in interpreting this provision, have held that it is wrong to convict a person on the uncorroborated testimony of a child under fourteen years alone – Abelegah Vs State (2018) 18 NWLR (Pt. 1650) 172, Adenekan Vs The State of Lagos (2021) 1 (Pt. 1756) 130, Damuna Vs State (2021) 4 NWLR (Pt. 1767) 419. The conviction and sentence of the Appellant predicated on the testimony of the fourth prosecution witness alone cannot thus be allowed to stand.” – Per M. B. Idris, JCA

 

STANDARD OF PROOF – STANDARD OF PROOF IN CRIMINAL CASES IS PROOF BEYOND REASONABLE DOUBT

Criminal matters are very serious and dicey issues that can dent the lives and images of people permanently and it should be taken seriously. Cases cannot be prosecuted based on emotions. I understand that because of the age of the victim, emotions and rage will arise and paying attention to details to be able to secure a solid undoubted conviction can be missed. However, I cannot hastily convict the Respondent when numerous doubts have been cast on the case of the Appellant.

In the case of ADEBESIN VS. STATE (2014) LPELR – 22694 (SC) (PP. 42 PARAS. D) it was held per Ogunbiyi, JSC thus: “The law is trite that the standard of proof in criminal cases must be beyond reasonable doubt and not shadow of all doubts. There must therefore be evidence which identified the person accused with the offence and further that it was his act which caused the offence. Mere suspicion is not enough.”

In the case of YUSUF VS. STATE (2020) LPELR – 51158 (CA) (PP. 9 – 10 PARAS. C), it was held per Bada, JCA:  “It is trite that the Prosecution in a criminal trial is required to prove its case against the accused beyond reasonable doubt. See – Section 135 (1) of the Evidence Act 2011. See also the following cases:- ABIRIFON VS STATE (SUPRA); NWATURUOCHA VS STATE (SUPRA) In the discharge of the onus of proof, there are three ways by which the Prosecution can prove the commission of a crime:- (i) By Confessional Statement. (ii) By evidence of eye witness or witnesses. (iii) By circumstantial evidence where Confessional Statement is lacking. See the following cases:- EMEKA VS STATE (2001) 6 SCNJ PAGE 259; GIRA VS STATE (1996) 4 SCNJ PAGE 95 AT 106; ABIRIFON VS STATE (SUPRA).” – Per M. B. Idris, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Kaduna State Penal Code Law 2017
2. Evidence Act, 2011
3. Court of Appeal Act
4. Evidence Act 2021

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