CORAM

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CLARA BATA OGUNBIYI JSC

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JSC

EJEMBI EKO JSC

PAUL ADAMU GALINJE JSC

SIDI DAUDA BAGE JSC

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PARTIES

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GAMBO IDI

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW AND PROCEDURE, EVIDENCE, CONSTITUTIONAL LAW, POLICE REGULATIONS, HUMAN RIGHTS, APPEAL, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The appellant was charged before the Kano State High Court for committing the offence of Rape contrary to Section 283 of the Penal Code Law on a charge filed and dated 5th November, 2010. The charge alleged that the appellant, Gambo Idi, an adult of Kofar Gesto Quarters, Karaye Local Government of Kano State, on or about 16th June 2010, in his room, had sexual intercourse with one Hafsat Musa, aged 7 years, against her will, thereby inflicting injuries on her.

The appellant pleaded not guilty when arraigned on 18th March 2013. The prosecution called four witnesses: PW1 (the victim), PW2 (the victim’s mother), PW3, and PW4 (a medical doctor). Three exhibits were tendered: Exhibits A and B (the appellant’s confessional statements) and a medical report issued after examination of the victim at the hospital. The appellant testified in his own defense as DW1 and called three other witnesses (DW2, DW3, and DW4). In a judgment delivered on 30th December 2013, the High Court of Kano State found the appellant guilty as charged, convicted and sentenced him to 10 years imprisonment with hard labor and, in addition, ordered him to pay a fine of N200,000.00. Dissatisfied with the judgment, the appellant appealed to the Court of Appeal, which heard the appeal on 11th February 2015 and delivered its judgment on 20th March 2015. The Court of Appeal unanimously affirmed the conviction and sentence of the appellant. Still dissatisfied, the appellant further appealed to the Supreme Court on 20th April 2015, filing four grounds of appeal.

 

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HELD

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1. The appeal was dismissed as lacking merit.

2. The Supreme Court affirmed the concurrent decisions of the trial court and the Court of Appeal, finding that the prosecution had proven the essential elements of the crime of rape beyond reasonable doubt.

3. The Court held that the appellant’s conviction and sentence to ten years imprisonment with hard labor, along with a fine of N200,000.00, was proper. The additional sentence of 12 months imprisonment in default of payment of the fine was also upheld.

4. The Court affirmed that the testimony of PW1 (the 7-year-old victim) was properly received, as there was compliance with Section 209(1) of the Evidence Act, 2011, and her testimony was sufficiently corroborated.

5. The Court further held that Exhibit B (the medical report) was properly admitted as primary evidence, being an original document that did not require certification.

 

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ISSUES

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1. Whether the learned Justices of the Court below were right to have relied on the inadmissible testimony of PW1 as well as exhibit B for failure to comply with the requirements of the Evidence Act, 2011, to affirm the conviction and sentence of the Appellant?

2. Whether the Respondent herein has proved the guilt of the Appellant beyond reasonable doubt, with cogent, credible, and compelling evidence as required by law?

 

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RATIONES DECIDENDI

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STANDARD OF PROOF IN CRIMINAL CASES – BURDEN OF PROOF BEYOND REASONABLE DOUBT:

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PROOF OF RAPE – ESSENTIAL ELEMENTS REQUIRED TO BE PROVEN:

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DEFINITION OF RAPE – ESSENTIAL ELEMENT OF PENETRATION:

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“Rape, in legal parlance, means forcible sexual intercourse with a girl or woman without her giving consent. The most important and essential ingredient of the offence is penetration.” – Per CLARA BATA OGUNBIYI, JSC.

 

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EVIDENCE OF A CHILD – PROCEDURE FOR RECEIVING TESTIMONY OF A CHILD:

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“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 whether the child is sufficiently intelligent to understand the questions he may be asked during his testimony and to answer rationally. This is tested by the Court putting preliminary questions to the child, which may have nothing to do with the matter before the Court.

(b) If, as a result of these preliminary questions, the Court concludes that the child is unable to understand the questions or to answer them intelligently, the child is not a competent witness within the meaning of Section 155(1).

But if the child passes the preliminary test, the Court must proceed to the next test to determine whether, in the Court’s opinion, the child is able to understand the nature and implications of an oath.

(c) If, after passing the first test, the child fails the second test, then, being a competent witness, he will give evidence which is admissible under Section 183(2), though not on oath. If, on the other hand, the child passes the second test so that, in the Court’s opinion, he understands the nature of an oath, he will give evidence on oath.” – Per CLARA BATA OGUNBIYI, JSC.

 

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EVIDENCE OF A CHILD – RECORDING OF PRELIMINARY QUESTIONS:

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“In Mbele v. State, supra, this Court followed the decision in Okon. The Court went further and held that once there are clear indications in the record of proceedings that a trial judge carried out the preliminary investigation envisaged by Sections 154 and 182 of the Evidence Act before taking the evidence of a child or an infant, this would mean, at least prima facie, that the said inquiry was carried out, even though the actual questions and answers in the course of the investigation are not recorded. It will then be open to a party contending that the requisite investigation was not carried out to rebut this prima facie opinion by showing either that there was no investigation at all, or that what the trial judge called an investigation under Sections 154 and 182 was a parody or travesty of the investigation envisaged.” – Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC.

 

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CORROBORATION OF EVIDENCE – REQUIREMENT FOR CORROBORATION IN RAPE CASES:

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“It has been held that although it is desirable, as a rule of practice, that in offences of a sexual nature, the evidence of the complainant should be strengthened by other evidence implicating the accused, there is nothing in law that prevents the Court from convicting based on the uncorroborated evidence of the complainant. Additionally, the evidence that will amount to corroboration does not have to be direct evidence of the commission of the offence by the accused person, provided it corroborates the evidence in material respects.” – Per CLARA BATA OGUNBIYI, JSC.

 

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DEFINITION OF RAPE UNDER THE PENAL CODE – CONSENT OF A CHILD:

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A public document is admissible as primary evidence without certification.” – Per CLARA BATA OGUNBIYI, JSC.

 

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DOCUMENTARY EVIDENCE – ADMISSIBILITY OF PUBLIC DOCUMENTS:

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As rightly submitted and argued by the respondent’s counsel, Section 83 of the Evidence Act provides for the admissibility of documentary evidence. The case of Tabik Investment Ltd v. GTB Plc, supra, cited by the appellant, holds that documents emanating from the Nigerian police, especially documents to be used in Court, are public documents, and only certified true copies are admissible in evidence. However, the foregoing requirement does not apply to the documents contained in the case diary, which is the subject and result of an investigation under Section 127(1) and (2) of the Criminal Procedure Code. The contents of a case diary, including exhibit ‘B’ (a document obtained in the course of investigation), are primary documents. They are original, as provided in Section 83 of the Evidence Act 2011 (as amended), and are admissible in evidence.” – Per CLARA BATA OGUNBIYI, JSC.

 

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ADMISSIBILITY OF PUBLIC DOCUMENTS – PRIMARY EVIDENCE:

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A public document is admissible as primary evidence without certification.” – Per CLARA BATA OGUNBIYI, JSC.

 

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CONTRADICTIONS IN TESTIMONY – WHEN CONTRADICTIONS ARE FATAL:

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“The law is well entrenched and established that it is not all contradictions in the testimony of the prosecution witnesses that are fatal. For any of such to be detrimental, it must be substantial and fundamental” – Per CLARA BATA OGUNBIYI, JSC

 

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PRESUMPTION OF REGULARITY – WHEN JUDICIAL ACT IS DONE SUBSTANTIALLY:

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“When any judicial – act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with." – Per EJEMBI EKO, JSC

 

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ADMISSIBILITY OF DOCUMENTS – PRIMARY EVIDENCE AND SECONDARY EVIDENCE:

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The provision of Section 209(3) of the Evidence Act requiring corroboration of her evidence was thus complied with. Her evidence was further corroborated by the evidence of PW2 (her mother) and PW3″ – Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

 

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CONCURRENT FINDINGS OF FACT – WHEN SUPREME COURT WILL NOT INTERFERE:

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I have no cause, therefore, to disturb the concurrent findings of fact against the appellant by the two Courts below.”– Per EJEMBI EKO,

 

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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

3.Evidence Act, 2011

4.Criminal Procedure Code

5.Interpretation Act 1990, Cap 192 LFN

 

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