CORAM

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ITA GEORGE MBABA JCA

PATRICIA AJUMA MAHMOUD JCA

PETER OYENIKENIEIM AFFEN JCA

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PARTIES

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AUWAL SHAGARI

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW, EVIDENCE LAW, SEXUAL OFFENCES, CONSTITUTIONAL LAW, CRIMINAL PROCEDURE

 

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SUMMARY OF FACTS

The Appellant was charged with rape contrary to Section 283 of the Penal Code Law of Taraba State. He was alleged to have had carnal knowledge of one Godiya Shagari, a 10-year-old girl, without her consent. The prosecution called two witnesses but failed to call the victim or present medical evidence. The trial court convicted the Appellant and sentenced him to twenty years imprisonment with a fine of N200,000. The Appellant appealed against his conviction.

 

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HELD

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1. The appeal was allowed

2. The trial court’s judgment was set aside

3. The Appellant was discharged and acquitted

4. The prosecution failed to prove essential elements of rape

5. Failure to call vital witnesses was fatal to prosecution’s case

 

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ISSUES

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1.Whether the trial court was right to convict and sentence the Appellant for rape under Section 283 of the Penal Code.?

 

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RATIONES DECIDENDI

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ESSENTIAL ELEMENTS OF RAPE – PROOF OF PENETRATION:

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“The essential and most important ingredient of the offence is penetration and UNLESS PENETRATION IS PROVED THE PROSECUTRIX CANNOT BE SAID TO HAVE PROVED ITS CASE beyond reasonable doubt.- Per Patricia Ajuma Mahmoud, J.C.A.

 

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VITAL WITNESSES – DEFINITION AND IMPORTANCE:

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“A vital witness is a witness whose evidence may determine a case one way or another. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case.” – Per Patricia Ajuma Mahmoud, J.C.A.

 

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PROOF OF RAPE – PROSECUTRIX TESTIMONY:

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“The prosecution cannot prove the offence of rape without the evidence of the victim and or medical evidence establishing the fact of the rape.” – Per Patricia Ajuma Mahmoud, J.C.A.

 

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CONFESSIONAL STATEMENTS – CORROBORATION REQUIREMENT:

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“The confessional statement cannot stand alone to ground a conviction in the circumstances of this case. The offence to which the Appellant allegedly confessed in the strict sense does not exist or has not been proven to have been committed.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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HEARSAY EVIDENCE – ADMISSIBILITY:

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“This evidence is clearly hearsay and it is not evidence that the court can rely on as proof of penetration or proof that Godiya Shagari was raped and by the Appellant.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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MEDICAL EVIDENCE – IMPORTANCE IN RAPE CASES:

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“While this may not have tied the Appellant to the offence, it would have at least established that the victim, Godiya Shagari was sexually assaulted or violated.” – Per Patricia Ajuma Mahmoud, J.C.A.

 

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VITAL EVIDENCE – DEFINITION:

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“Vital evidence on the other hand is defined as evidence that goes to the root of the ingredients and elements of the offence of which an accused person is charged. – Per Patricia Ajuma Mahmoud, J.C.A.

 

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PROSECUTION’S DISCRETION – WITNESS SELECTION:

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“The law concedes absolute province to the prosecution to decide whether or not it would call any particular person as a witness, insofar as those who do testify are able to establish the essential ingredients of the offence.”- Per Peter Oyinkenimiemi Affen, J.C.A.

 

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CONSENT IN RAPE – AGE CONSIDERATIONS:

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“In the case on appeal, proof of consent was irrelevant as the prosecutrix was legally incapable of consenting to sex, being only 10 years old at the time of the alleged rape.”- Per Peter Oyinkenimiemi Affen, J.C.A.

 

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UNCORROBORATED EVIDENCE – SUFFICIENCY:

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“There is no rule that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix, insofar as the trial Judge warns himself that it is unsafe to convict on such uncorroborated evidence before proceeding to convict.”- Per Peter Oyinkenimiemi Affen, J.C.A.

 

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PENETRATION – DEGREE REQUIRED:

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“It is well accepted and settled that penetration, with or without emission, is sufficient, even where the hymen is not ruptured. The slightest penetration has served as sufficient to constitute the act of sexual intercourse.”- Per Peter Oyinkenimiemi Affen, J.C.A.

 

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PROSECUTION’S DUTY – WITHDRAWAL OF CASE:

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“A judge should be able to rise above such primordial sentiments and decide matters purely on the legal and admissible evidence.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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JUDICIAL APPROACH – EMOTIONAL DETACHMENT:

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“A judge should be able to rise above such primordial sentiments and decide matters purely on the legal and admissible evidence.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Penal Code Law of Taraba State, Section 283

2. Evidence Act, 2011

3. English Sexual Offences Act, 2003 (referenced)

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