Legalpedia Citation: (2023-06) Legalpedia 56739 (CA)

In the Court of Appeal

(GOMBE JUDICIAL DIVISION)

Tue May 16, 2023

Suit Number: CA/G/88C/2022

CORAM

Jamilu Yammama Tukur JCA

Mohammed Danjuma JCA

Adebukunola Adeoti Ibironke Banjoko JCA

PARTIES

ABUBAKAR AMIRU A.K.A BABAN TAYE

 

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The Appellant was accused of having sexual intercourse with Aisha Muazu, a ten-year-old girl in Potiskum Local Government Area of Yobe State. The claim was that he lured into his house, forcefully removed her pant, and had sexual intercourse with her.

The prosecution to prove the charge called four witnesses and also presented the extra-judicial statement of the Appellant and the medical report of the examination of the prosecutrix.

At the close of the prosecution case, the defence applied for the recall of PW1, PW2 and PW3 which was granted though the witnesses were not recalled. Thereupon, the Appellant opened his defence and gave evidence on oath as DW1 and called one witness DW2. At the close of evidence, both sides filed final written addresses which were respectively adopted as oral arguments.

The lower Court in a considered judgment discountenanced with the defence put up by the Appellant and found him guilty as charged, convicted him, and sentenced him to twenty-five (25) years imprisonment. Dissatisfied with the judgment of the trial high Court, the Appellant appealed to this Court.

 

HELD

Appeal dismissed

ISSUES

Whether the learned trial judge complied fully with the provisions of Sections 175, 205 and 209 (1) of the Evidence Act, 2011 before receiving the evidence of PW3 to warrant relying on her evidence to convict the Appellant?

Whether there is corroboration of the evidence of PW3 from the testimony of PW1, PW2, Exhibits A and B to warrant the trial Court holding that the Appellant had sexual intercourse with PW3 on the 12th of October, 2019 and there was penetration?

Whether the failure to recall PW1, PW2 and PW3 as requested by the defence and ordered by the Court did not occasioned a failure of justice?

Whether the learned trial judge was right in ignoring the defence case on the basis that the Appellant had retracted from his extra-judicial statement of the fact that he did not sent PW3 to buy pure water?

Whether the prosecution has proved the charge of rape under Section 283 of the Penal Code beyond reasonable doubt against the Appellant to warrant convicting him as charged?

 

RATIONES DECIDENDI

UNSWORN TESTIMONY OF A MINOR – ADMISSION OF THE UNSWORN TESTIMONY OF A MINOR

Section 175 of the Evidence Act makes provision that all persons are competent to testify in a Court of law except those considered otherwise as provided by the said Section which include a minor. By the provision of the Evidence Act, PW3, being a minor, under the age of 14 years, her testimony shall be unsworn as provided by Section 209.​

Where a minor is called upon as a witness to give evidence in a case (as in this case) the law under the express provision of Section 209 (1) and (3) of the Evidence Act, 2011, stipulates that the Court, is duty bound to conduct a preliminary enquiry to ascertain whether or not the minor possessed sufficient intelligence to answer the questions that will be put to her, also that she understands the duty of speaking the truth. See the case of IDI V. STATE (2017) LPELR-42587 (SC).

In the case of OKON & ORS V. STATE (1988) LPELR-2472 (SC), it was stated thus:

“Once a witness is a child, by the combined effect of Sections 154 and 182 (1) and (2) of the Evidence Act, 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…”

Once 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 implications of an oath.

… As the Respondent’s counsel rightly noted, there is no clear code test that must be followed by the trial judge. See the case of ONYEGBU V. STATE (Supra). – Per Mohammed Danjuma, JCA

 

CORROBORATION – ELEMENTS OF EVIDENCE OFFERED AS CORROBORATION FOR THE OFFENCE OF RAPE

A piece of evidence offered as corroboration for the offence of rape must be:

Cogent, compelling and unequivocal as to show without more that the accused committed the offence charged.

An independent evidence which connects the accused with the offence charged and Evidence that implicates the accused in the commission of the offence charge. See the case of UPAHAR V. STATE (2003) 6 NWLR PT. 816 230.

Corroboration being an evidence tending to confirm, support, and strengthen the evidence of the prosecutrix, it is settled corroboration need not consist of direct evidence that the Appellant committed the offence, nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respect material to the charge. See the case of NWAMBE V. STATE (Supra).

… Worthy of note is that contrary to the assertion of the learned counsel to the Appellant, corroboration has little to do with the length of time from the date of the occurrence of the event and the date of findings, rather it only requires confirmation of what took place that is in contention. This is a straight forward matter and I refuse to accept any introduction of technicality into it. – Per Mohammed Danjuma, JCA

 

RECALL OF A WITNESS – CONDUCT OF A PARTY RECALLING A WITNESS

It is trite that a recall of a witness who had already testified and discharged forms part of the Appellant’s case. As such the Appellant is required to conduct his case the manner he deems fit. From the record, the Appellant through his counsel did not, after the order of the Court, apply for a subpoena nor did he insist on recalling the said witnesses but rather proceeded with his defence. The Appellant in his reply brief made failed attempt to deny this but the defence he put forth are mere repetition of his argument in the Appellant’s Brief of Argument. Once the witnesses are discharged they have become that of the Appellant. Therefore, the Appellant will go extra mile to bring them and not fold his arm and do nothing after his application to recall was granted. – Per Mohammed Danjuma, JCA

CONFESSION – ADMISSIBILITY OF A CONFESSION

It is within the province of the trial judge to determine the admissibility of a confession upon proof by the prosecution that the statement was free and voluntary and having admitted the statement, it is desirable for the trial judge to find some corroboration in the evidence tending to show that the statement of the accused having regard to the circumstances of the case is true. See the case of IFEANYI OKAFOR V. THE STATE (2018) LPELR-44895 (CA). Also, it is trite law that where an accused person makes statement to the police and in his evidence in chief before the Court denies the statement, such testimony is treated as unreliable. At the lower Court, it was opined that even though the Appellant retracted his statement given to police in the course of his examination in chief as DW, the position of the law is that where an accused person makes a statement to the police and in his evidence before a Court states something to the contrary, such testimony in Court is liable to be ignored. That is the true position of law. See the case of SALISU MUSA V. THE STATE (2019) LPELR-51298 (CA). – Per Mohammed Danjuma, JCA

RAPE – INGREDIENTS OF THE OFFENCE OF RAPE

For the prosecution to prove its case beyond reasonable doubt in the offence of rape, the following ingredients must be established:

That the sexual intercourse is against her will and without her consent.

With her consent when her consent was obtained by putting her in fear of death or hurt.

With or without her consent when she is under fourteen years of age.

That there was penetration.

It should first be stated that proof beyond reasonable doubt does not translate to proof beyond all doubt. Where all the essential ingredients of the offence have been proved by the prosecution, same is proved beyond reasonable doubt. – Per Mohammed Danjuma, JCA

CONFESSIONAL STATEMENT – APPROPRIATE TIME TO OBJECT TO THE ADMISSIBILITY OF CONFESSIONAL STATEMENT.

It is settled that the appropriate time to object to the admissibility of a confessional statement is at the point when the Prosecution seeks to tender same. Any objection raised to the admissibility of a Confessional Statement subsequent to its tendering and admission in evidence will be considered as an afterthought. Reference is made to the cases of AKINKUNMI VS STATE (2022) LPELR-57285 (SC), YELLI VS STATE ​ (2022) LPELR-57865 (SC), IBRAHIM VS STATE (2022) LPELR-58001(SC). In this case, the Appellant retracted his confessional statement during his examination-in-chief and not during the time the Prosecution attempted to tender confessional statement. Failure to object to the admissibility of the confessional statement implies that the confessional statement was voluntary and as such the retraction of the confessional statement was an afterthought. – Per A. A. I. Banjoko, JCA.

CASES CITED

NIL

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Yobe State Penal Code Law (amendment) 2018
3. Evidence Act, 2011
4. Yobe State Administration of Criminal Justice Law 2020
5. Criminal Procedure Code

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