CORAM

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Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Stephen Jonah Adah Justice of the Supreme Court of Nigeria

Jamilu Yammama Tukur Justice of the Supreme Court of Nigeria

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PARTIES

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GALI DALHA

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, HUMAN RIGHTS, PRACTICE AND PROCEDURE, RAPE, FAIR HEARING, INTERPRETATION SERVICES, DOCUMENTARY EVIDENCE, BURDEN OF PROOF, MEDICAL EVIDENCE

 

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SUMMARY OF FACTS

The appellant, Gali Dalha, was charged with rape contrary to Section 283 of the Penal Code, Law Cap P3 Laws of Jigawa State, 2012. The victim was a 7-year-old girl named Kananatu Dalha. The prosecution’s case was that the appellant had sexual intercourse with the child without her consent. The victim’s mother, PW1 (Sanaya Dalha), testified that she discovered the appellant on top of her daughter having sexual intercourse with her when she went to look for the child. The victim herself, testifying as PW3, identified the appellant and stated that whenever she went out, Gali would call her, ask her to remove her clothes, and have sexual intercourse with her. The appellant made an extra-judicial confessional statement (Exhibit P1) admitting to the crime, stating that he put his penis inside the victim’s vagina when the mother discovered them with a torch light. A medical report (Exhibit P3) was also tendered in evidence. The trial court convicted the appellant on May 14, 2014. The Court of Appeal, Kaduna Division, affirmed the conviction on December 14, 2016. The appellant appealed to the Supreme Court raising three main issues: lack of interpreter services, improper admission of medical evidence, and failure of prosecution to prove the case beyond reasonable doubt.

 

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HELD

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1. The appeal was dismissed.

2. The Supreme Court held that there was no breach of the appellant’s right to fair hearing as the record showed he understood the charge and pleaded not guilty without requesting an interpreter.

3. The Court found that the medical report was properly admitted as the appellant’s counsel did not object to its admission at trial.

4. The Court held that the prosecution had proved the case beyond reasonable doubt through the victim’s testimony, her mother’s corroborative evidence, and the appellant’s confessional statement.

5. The concurrent findings of the trial court and Court of Appeal were affirmed.

6. The Court strongly condemned the appellant’s actions against the innocent child and called for societal action to protect children from sexual abuse.

 

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ISSUES

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1. Whether the lower Court was right in affirming the judgment of the trial Court notwithstanding the fact that the whole proceedings before the trial Court was conducted in English Language without providing the appellant with a translator to Hausa Language, thereby violating the appellant’s fundamental right to fair hearing and a fair trial as enshrined in the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?

2. Whether the lower Court was right in affirming the judgment of the trial Court which relied heavily on the Medical Report in Exhibit P3 when inter-alia it was not tendered through its maker but was merely dumped on the trial Court?

3. Whether the lower Court was correct in affirming the judgment of the trial Court which found that the respondent had adduced credible and cogent evidence to prove beyond reasonable doubt the elements of the commission of the criminal offence of Rape by the appellant?

 

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RATIONES DECIDENDI

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RIGHT TO INTERPRETER IN CRIMINAL TRIALS – WHEN THE RIGHT IS NOT AUTOMATIC

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Part of the right assured by the Constitution is that of interpreter for a person accused who cannot understand the language of the Court. Provision of an interpreter, therefore, is not automatic. It is only in deserving cases that a Court in criminal trial makes arrangement for an interpreter. Where an accused person understands the language of the proceeding of the Court, there is no obligation or duty foisted on the trial Court to provide an interpreter. – Per STEPHEN JONAH ADAH, J.S.C.

 

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REQUIREMENTS FOR CLAIMING BREACH OF RIGHT TO INTERPRETER – NECESSITY OF RAISING THE ISSUE AT TRIAL

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The right of the accused to an interpreter cannot however, be raised on appeal, unless he claimed the right during his trial and was of denied it” and “The appellant or his counsel must draw the attention of the Court of the necessity of the Court to provide an interpreter to enable the accuse follow the proceedings which are being conducted in the language that he is not familiar with. – Per STEPHEN JONAH ADAH, J.S.C.

 

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RAISING FAIR HEARING ISSUES ON APPEAL – REQUIREMENT FOR EVIDENCE OF VIOLATION

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From these authorities, it is very clear and well settled that flagging lack of fair hearing on appeal in any criminal trial is not a magic wand. There must be clearly an evidence of violation in deserving cases before the Court can accept it as an obstacle to fair trial. – Per STEPHEN JONAH ADAH, J.S.C.

 

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DETERMINATION OF UNDERSTANDING OF COURT LANGUAGE – RELIANCE ON TRIAL RECORD

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The record of the Court shows the appellant understood the language of the Court and he pleaded not guilty. He did not inform the Court that he did not understand the language of the Court all through the trial. The counsel for the appellant who conducted his defence also did not raise the issue or request for an interpreter. – Per STEPHEN JONAH ADAH, J.S.C.

 

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ADMISSION OF MEDICAL REPORTS WITHOUT OBJECTION – EFFECT ON APPELLATE REVIEW

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The medical report exhibit P3 was admitted by the trial Court without any opposition from the appellant or his counsel. The medical report tendered had no issues and it is not the only evidence considered by the trial Court. The Court considered the totality of the evidence of the witnesses. – Per STEPHEN JONAH ADAH, J.S.C.

 

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BURDEN OF PROOF IN CRIMINAL TRIALS – STATIC NATURE OF PROSECUTION’S BURDEN

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It should be borne in mind that the burden of proof in any criminal trial lies on the prosecution. This follows the constitutional presumption of innocence of the accused person until proven guilty. The onus is never transient. It does not shift unto the appellant. It is static throughout. It is not the duty of the accused to prove his innocence. – Per STEPHEN JONAH ADAH, J.S.C.

 

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STANDARD OF PROOF BEYOND REASONABLE DOUBT – MEANING AND APPLICATION

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It is equally settled in our law that while the onus is on the prosecution to prove the guilt of an accused person, the standard of proof remains that of proof beyond reasonable doubt… that does not import the idea of proof beyond any degree of certainty. It does not mean proof beyond all shadow of doubt. It means if there is cogent and credible evidence, proving the essential ingredients of the offence charged.– Per STEPHEN JONAH ADAH, J.S.C.

 

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ESSENTIAL INGREDIENTS OF RAPE UNDER PENAL CODE – REQUIREMENTS FOR CONVICTION

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In the instant case, the offence involved is that of rape under Section 283 of the Penal Code Law of Jigawa State,1998. Under this law, the essential ingredients of the offence of rape which the prosecution must prove include:

1. That the accused had sexual intercourse with the prosecutrix.

2. That the act of sexual intercourse was done without the consent or that the consent (if any) was obtained by fraud, force, threat, intimidation, deceit or impersonation.

3. That prosecutrix was not the wife of the accused.

4. That the accused had the means 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. – Per STEPHEN JONAH ADAH, J.S.C.

 

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CORROBORATION OF VICTIM’S TESTIMONY – STRENGTHENING PROSECUTION’S CASE

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This testimony of the child, PW3, was corroborated by her mother who testified as PW1″ and “The appellant confessed to the crime in his extra-judicial statement admitted as Exhibit P1… At page 61, he stated in the said statement as follows: ‘I … put my penis inside her vagina, the mother of Kananatu (PW3) just came and flash us with a touch light having sexual intercourse with that girl’. – Per STEPHEN JONAH ADAH, J.S.C.

 

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SUFFICIENCY OF EVIDENCE FOR CONVICTION – TOTALITY OF EVIDENCE APPROACH

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The prosecution, no doubt, proved the charge against the appellant as found by the two lower Courts. Since there is concurrence of finding of the lower Courts as to the culpability of the appellant, it is exceedingly clear that the lower Court did not commit any error in affirming the conviction and sentence of the appellant.– Per STEPHEN JONAH ADAH, J.S.C.

 

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CONCURRENT FINDINGS OF FACT – PRESUMPTION OF REGULARITY AND RELUCTANCE TO INTERFERE

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It is no doubt a concurrent decision predicated on findings of facts. It is trite that concurrent judgments enjoy presumption of regularity under Section 168(1) of the Evidence Act. It is also a settled principle of law that the apex Court will not lightly interfere with concurrent findings of fact. Therefore, the appellant that seeks to induce this Court to disturb concurrent findings of fact by the trial and intermediate Courts, bears the burden of showing the special circumstances necessitating the apex Court to disturb such concurrent findings of fact.– Per UWANI MUSA ABBA AJI, J.S.C.

 

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PURPOSE AND PROPER USE OF REPLY BRIEF – PROHIBITION AGAINST REPETITION

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It is well settled that a reply brief is not meant to be a repetition of the argument in the appellant’s brief. It is equally not an opportunity to re-emphasize arguments in the appellant’s brief. The purpose of a reply brief is to address new points of argument made by the respondent which the appellant did not address in his brief of argument. – Per STEPHEN JONAH ADAH, J.S.C.

 

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CONDEMNATION OF CHILD SEXUAL ABUSE – SOCIETAL DUTY TO PROTECT CHILDREN

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There is nothing more sorrowful or shameful than for an innocent child to be defiled by an adult. It is a stain on our humanity. Such a vile act is not only a violent crime but a deeply depraved assault on innocence, an act that reflects a complete collapse of moral conscience. No society that claims to value its future can remain silent in the face of such evil. Children are the hope of tomorrow, and every one of us, leaders, parents, citizens has a duty to rise up, speak out, and stand over their safety. – Per STEPHEN JONAH ADAH, J.S.C.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Penal Code, Law Cap P3 Laws of Jigawa State, 2012

3. Evidence Act 2011

4. Court of Appeal Rules 2021

 

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