Legalpedia Citation: (2024-03) Legalpedia 83509 (CA)

In the Court of Appeal

Holden At KADUNA

Thu Mar 14, 2024

Suit Number: CA/K/172C/2020

CORAM

Onyekachi Aja Otisi Justice of the Court of Appeal

PARTIES

IBRAHIM MOHAMMED (ALIAS BABA SANI)

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

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

 

SUMMARY OF FACTS

The Prosecution at the trial Court presented five witnesses to establish the allegation of rape against the accused. The victim of the rape (9 years old Zara’u Sa’ad) testified as PW3 and narrated her ordeal with the Appellant. PW4, her grandmother narrated how she discovered the rape of the PW3.

PW3 in her testimony stated that she was passing by the shop of the Appellant when he called her into his shop and gave her biscuit and he raped her. After raping her, she went to Islamiya School before she came back home and started feeling pains in her private part. According to PW3, it was then at home that her grandmother the PW4 noticed her and asked her what the problem is and she told her that she was raped by the Appellant. On this discovery, PW4 examined the private part of her granddaughter and realized that same was damaged. her grandmother reported to her father who in turn reported to the village head and the police and she was subsequently taken to the hospital and examined.

The Appellant in his defense at the trial Court claimed that he had never seen the PW3 in his life and the allegation of his raping her is all framed up and lies and he denies the allegations against him. His son who testified as DW2 equally told the Court that his father had nothing to do with the victim of the offence and the charges are not true.

The Trial Court found the Appellant guilty of the offence of rape punishable under Section 283 of the Penal Code Laws of Kaduna, 1991, and convicted him to 15 years imprisonment, with fine of N100,000.00.

The Appellant being aggrieved with the decision of the Trial Court lodged this appeal.

HELD

Appeal dismissed

ISSUES

Whether the trial Court was right in convicting Ibrahim Mohammed (Alias Baba Sani), the Appellant, of the offence of Rape, regard being had to the facts and circumstance of the case leading to this Appeal?

RATIONES DECIDENDI

BURDEN OF PROOF – BURDEN OF PROOF IN CRIMINAL PROCEEDINGS – DUTY OF THE PROSECUTION IN ESTABLISHING THE GUILT OF THE ACCUSED – CONDUCT OF COURTS TO EVIDENCE IN CRIMINAL PROCEEDINGS – MEANING OF PROOF BEYOND REASONABLE DOUBT

In Criminal proceedings, the law is settled that the Prosecution is not under an obligation to call horde of witnesses. All that is required to do is to dislodge the presumption of innocence accorded the accused/defendant under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended and proving all the ingredients or elements of the offence(s) for which an accused/defendant is charged beyond reasonable doubt as provided in Section 135(1) of the Evidence Act beyond reasonable doubt. Evidence of a sole witness where it’s positive, direct and fixed the Accused/Defendant with the commission of offence(s) charged will suffice.

In Sebastian S. Yongo & Anor v. COP (1992) 8 NWLR (Pt. 257) at 50 paragraph G, Per KUTUGI, JSC

(later CJN, of blessed memory) said “In criminal proceedings, the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.” Every ingredient of an offence must be established to that standard of proof to leave no reasonable doubt of the guilt of an accused. See Aiguoreghian v. The State (2004) 1 SCNJ 65 at 91. Where evidence is capable of two interpretations, the one favourable to the accused is to be preferred. Where inferences from the facts are consistent with innocence but they are also consistent with guilt, the Court could not say that he is satisfied with the guilt of the accused beyond reasonable doubt. See Daniels v. State (1991) 8 NWLR (Pt. 212) 715 at 732. Proof beyond reasonable doubt does not mean proof to the hilt. It does not mean proof beyond any shadow of doubt. See Ben v. State (2005) 11 NWLR (Pt. 936) 335 at 347. It is proof that precludes every reasonable hypothesis except that which it tends to support and verily it is a proof that is consistent with the guilt of the accused person or against when the allegation has been made. See Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 at 295. – Per M. S. Hassan, JCA

EVIDENCE – PRIMARY DUTY OF TRIAL COURTS TO EVALUATE EVIDENCE

The trial Court has a duty to consider all the evidence before him, more so in a criminal case where the guilt of the accused must be proven beyond reasonable doubt. See Adamu v. State (1991) 4 NWLR (Pt. 187) 530 at 538. – Per M. S. Hassan, JCA

PROSECUTION – WAYS THE PROSECUTION CAN PROVE AN OFFENCE

The Apex Court in Shuaibu Abdu v. The State (2017) 7 NWLR (Pt. 1564) 171 at 186 paras F-H per SANUSI, JSC Said:

“……..It is apposite to say that in order to prove an offence the prosecution can use any of the following modes of proof namely:

(1) Evidence of eye witness or witnesses; or

(2) Confessional statement of the accused; or

(3) Through circumstantial evidence.” – Per M. S. Hassan, JCA

RAPE – MEANING OF RAPE – THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF RAPE

A person is said to commit rape if he has unlawful carnal knowledge of a woman or girl without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act or in case of a married woman by impersonating her husband. See Posu & Anor v. State (2011) 1-2 SC (Pt. 1) 156 at 177-178; Musa v. State (2013) 9 NWLR (Pt. 1359) 214 at 242; Olali v. Nigeria Army (2016) 4 NWLR (Pt. 1502) 358 at 393. A forcible sexual intercourse with a girl or a woman without her giving consent to it. There must be penetration of penis into the vagina. The consent of the victim is a complete defence to the offence. See Ogunbayo v. State (2007) 8 NWLR (Pt. 1035) 157 at 178.

By virtue of Section 282(1) of the Penal Code Law, Laws of Kaduna State, 1991, “A man is said to commit rape who, save in the case referred to in subsection 2, has sexual intercourse with a woman in any of the following circumstances:

(a) Against her will;

(b) Without her consent;

(c) With her consent, when her consent has been obtained by putting her in fear of death or hurt;

(d) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;

(e) With or without her consent, when she is under fourteen years of age or of unsound mind.”

On the essential ingredients of the offence of rape, the Apex Court in Afor Lucky v. The State (2016) LPELR-40541 (SC) page 50 paras B-F. Per OKORO, JSC said:

“The essential ingredients of the offence of rape which the prosecutrix must prove include the following: (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 the prosecutrix was not the wife of the accused. (4) That the accused had the mens 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. See Ndewenu Posu & Anor v. The State.” – Per M. S. Hassan, JCA

CORROBORATED EVIDENCE – WHEN EVIDENCE IS SAID TO BE CORROBORATED – MEANING OF CORROBORATED EVIDENCE

The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of other witnesses, or to comport with some facts otherwise known or established. See Administrator General, Delta State v. Ogogo (2006) 2 NWLR (Pt. 964) 366 at 386. Corroborative evidence is a confirmation of a witness’ evidence by independent testimony. See Nwambe v. State (1995) 3 NWLR (Pt. 384) 385 at 407. – Per M. S. Hassan, JCA

CONTRADICTION – WHEN CONTRADICTION IS DEEMED TO BE MATERIAL

For any contradiction to be material, it must be one which has substantial disparagement of the witnesses, likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses. See Ogbu & Anor v. State (2007) 2 SC 273 at 292-293. A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated. Two pieces of evidence contradict each other when they are by themselves inconsistent. See Akpan v. State (1991) 3 NWLR (Pt. 182) 646 at 657. – Per M. S. Hassan, JCA

DEMEANOUR OF A WITNESS – THE IMPORTANCE OF THE DEMEANOUR OF A WITNESS – DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE

Demeanor of a witness is within the purview of the trial Court but the demeanor of the witness does not close the door against the examination of the circumstances of such a witness’s evidence by an appellate Court. See Ekwealor v. Obasi (1990) 2 NWLR (Pt. 131) 231 at 267. The Apex Court in Ali Pinder Kwajaffa & Ors v. Bank of the North Limited (2004) LPELR-1727 (SC) page 30. Per MUSDAPHER, JSC Said: “…..It is the pre-eminent duty of a trial Court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate Court which neither heard the witnesses nor saw them to observe their demeanours in witness box. See Ajakaiye v. Adedeji (1990) 7 NWLR (Pt. 161) 192.” – Per M. S. Hassan, JCA

COURTS – CONDUCT OF COURTS TO RAPE

This appeal tells a very sad story, which, regrettably, is commonplace these days. I stand by my view expressed in Asortar v. State (2020) LPELR-50359(CA) at pages 21-22, thusly:

“The dastardly act of the Appellant is to be condemned in the harshest terms. The act of the Appellant not only caused physical injuries to PW3, a minor, but also had the capability of leading to other forms of trauma manifesting in her life in future. Society appears to have been recently struck by a blitz of profane desires displayed in unrestrained immorality. If these desires were to engaged in consensually then perhaps condemnation may be limited to the morality of such actions. But where one party is forcefully made a participant, more so a child, then, in my view, such action must be condemned as ignoble, despicable, shameful and should be maximally punished.” – Per O. A. Otisi, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Penal Code, Laws of Kaduna State, 1991
3. Court Of Appeal Rules
4. Evidence Act, 2011
   

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