JONATHAN IKECHUKWU V. THE STATE
March 18, 2025THE GOVERNOR OF KADUNA STATE V. ABUBAKAR MUSTAPHA &ORS
March 18, 2025Legalpedia Citation: (2023-03) Legalpedia 06871 (CA)
In the Court of Appeal
Holden at Kaduna
Wed Mar 8, 2023
Suit Number: CA/K/216/C/2022
CORAM
CHIDI NWAOMA UWA
MOHAMMED BABA IDRIS
MUSLIM SULE HASSAN
PARTIES
ISYAKU UMAR
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, CONSTITUTIONAL LAW
SUMMARY OF FACTS
The appellant was accused of luring his victim, Miss Aisha Shafi’u, who was ten years old into a farm and forcefully having sexual intercourse with her. The Trial Court found the Appellant guilty on a one Count charge of Raping, contrary and punishable under Section 258 of the Kaduna State Penal Code, 2017, and sentenced him to life imprisonment for the one Count Charge.
He was aggrieved with the decision of the trial court and hence the instant appeal.
HELD
Appeal Dismissed
ISSUES
Whether the weight of evidence adduced by the Respondent was sufficient to warrant judgment of the Honorable Court in its favor
RATIONES DECIDENDI
BURDEN OF PROOF – ON THE PROSECUTION WHO ALLEGES COMMISSION OF A CRIME
This being a criminal matter, the onus of proof is at all times on the prosecution, which onus is discharge on the establishment of the essential elements of the alleged offence. See Section 135 of the Evidence Act.
In KOMOLAFE v. FRN (2015) LPELR-41708 (CA) Pages 39-43, paragraphs G-C Per TSAMMANI, JCA Said:
‘’Now, Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria has presumed every person charged with the commission of a crime, to be innocent until he is proved guilty. This presumption of innocence has therefore placed the burden on the prosecution to prove the guilt of the accused. In criminal cases, the burden placed on the prosecution has been statutorily enacted by Section 135 (2) of the Evidence Act, 2011 which stipulates that: ‘’135 (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.’’ It therefore means that, the prosecution who alleges the commission of a crime or wrongful act by the accused have the burden to prove that the offence was indeed committed by that person. In discharging the burden, the prosecution must prove all the essential elements that constitutes the offence, in other words, the prosecution must adduce credible evidence to prove all the essential ingredients of the offence. This burden also includes evidence that will negate any evidence put by the accused or as the evidence may disclose. Accordingly, even where an accused person raises a defence, the onus will still be on the prosecution to prove its case by leading credible and cogent evidence to negate such a defence, with a view to convincing the trial Court that the defence does not avail the accused. Thus, in the case of State v. Ani (2009) 16 NWLR (Pt. 1168) p. 443; My Lord, Tobi, JSC said that: ‘’The burden of proof of an accused person committing an offence is on the prosecution and it is beyond reasonable doubt. Section 138 of the Evidence Act provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceedings, criminal or civil, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 141 of the Evidence Act, on the person who asserts it, whether the commission of such act is or is not directly in issue on the act.’’ It therefore remains settled that, apart from certain statutory exceptions which place the burden of prove of particular facts on an accused person, the burden of proof is always on the prosecution to prove the guilt of the accused. That burden, save for certain statutory exceptions, is static and never shifts on the accused. That burden can only be discharged upon proof beyond reasonable doubt. See Cyril Areh v. C.O.P. (1959) W.R.N.L.R. p.230 at 231; State v. Danjuma (1997) 5 NWLR (Pt. 506) p.512; Jua v. State (2010) 4 NWLR (Pt. 1184) p. 217; Nkebisi v. State (2010) 5 NWLR (Pt. 1188) p. 471 and Ohunyon v. State (1996) 3 NWLR (Pt. 436) p.264. – Per M. S. Hassan, JCA
BURDEN OF PROOF – PROOF BEYOND REASONNABLE DOUBT – WHEN IT IS POSSIBLE BUT NOT PROBABLE
The phrase ‘’beyond reasonable doubt’’ does not mean beyond every shadow of doubt or beyond all doubts. It simply means that is only those doubts that are reasonable that can enure to the benefit of an accused person. It means that, if the evidence against the accused person is strong as to leave only a remote probability in his favour, which can be dismissed with the sentence; ‘’of course it is possible, but not in the least probable’’, proof beyond reasonable doubt has been attained. Thus in the case of Chukwudi Ugwuanyi v. Federal Republic of Nigeria (2012) LPELR-7817 (SC), My Lord, Rhodes-Vivour, J.S.C. observed that: ‘’In Miller v. Minister of Pensions 1947 2 All E.R. p. 372, it was stated by Lord Denning, J. (as he then was) ‘’That proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘’of course it is possible, but not in the least probable’’ the case is proved beyond reasonable doubt but nothing short of that will suffice….’’ – Per M. S. Hassan, JCA
RAPE – ESSENTIAL INGREDIENTS OF THE OFFENCE OF RAPE
The essential ingredients for the offence of rape was clearly stated by the Supreme Court in the case of BONIFACE ADONIKE V. THE STATE (2015) LPELR-24281 (SC) Per OKORO, JSC at page 29-30, paragraphs F-C Said:
‘’It is trite that in a charge of rape or unlawful carnal knowledge of a female without her consent, the prosecution has a bounded duty to prove the following ingredients: a. that the accused had sexual intercourse with the prosecutrix; b. that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat intimidation, deceit, or impersonation; c. that the prosecutrix was not the wife of the accused; d. 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; e. that there was penetration.’’ – Per M. S. Hassan, JCA
STATEMENT TO THE POLICE – ON THE ALLEGED ABSENCE OF COUNSEL WHEN STATEMENT IS MADE
The submission of the Appellant Counsel that failure to observe the provisions of Section 39 (2) of the Administration of Justice Law Kaduna State has made the confessional statement inadmissible is a clear misconception of the law. The recent decision of this Court in the case of THE STATE V. DAVID MUSA (2020) LPELR-51302 (CA) Per HUSSAINI, JCA at page 32 said “The use of the word ‘’may’’ in Section 39 (b) of the law can only be interpreted as permissive in the sense that any request by an accused person who volunteers to make a statement to the Police only in the presence of his counsel, should not be lightly refused. On the other hand the body or authority whose statutory duty it is to record the statement of accused persons cannot be held to ransom in the discharge of its duties merely because counsel was not in attendance at the time when the accused volunteered to make a statement. Such a statement is not rendered invalid on that account. That is not the purport of the provision of Section 39 (b) of the Kaduna State Administration of Criminal Justice Law, 2017. The word ‘’may’’ should be given its ordinary and natural meaning and should be so interpreted.’’ In the same vain the Apex Court in ADEYINKA AJIBOYE V FRN (2018) 13 NWLR (Pt. 1637) 430 at 452 paragraphs H-A reinforced the provisions of the Evidence Act over the Administration of Criminal Justice Act on the subject of evidence. The Court said: ‘’On the alleged absence of his counsel when it was recorded, I think that reason is not cogent as it is not incumbent upon the prosecution to record an accused statement only in the presence of his defence counsel. The important and essential thing is that words of caution must be administered to the accused person to his understanding and to endorse same before he decides to make the statement.’’ The procedure outline by Judges’s Rules are also specified in the case of KIM V STATE (1992) 4 NWLR (Pt. 233) 17 at 25 thus: a. It must carry the usual words of caution. b. Each of the words of caution must be understood by the maker. c. It must be followed by the mark, thumbprint or signature as the case may be of the maker. d. It must be recorded in a language understood by the maker. e. It must be read over and interpreted to the maker in the language in which it was made. – Per M. S. Hassan, JCA
EVIDENCE – ADMISSIBILITY OF EVIDENCE – WHEN OBJECTION HAS NOT BEEN RAISED BY OPPOSING PARTY WHEN DOCUMENT IS OFFERED IN EVIDENCE
The cardinal rule of evidence in civil and criminal cases is that an objection to the admissibility of document sought by a party to be tendered in evidence must be taken when the document is offered in evidence. Where objection has not been raised by the opposing party to the reception of the document in evidence, such objection cannot afterwards be raised on appeal unless by law the document is rendered inadmissible. See HABU IDI V. THE STATE (2020) LPELR-49506 (CA) Pages 20-21. In the instant case the Appellant has not shown that Exhibits 1 and 3 are inadmissible in law. Having not objected to its being admitted in evidence on the grounds that it was obtained in the absence of a legal practitioner, he cannot afterwards be heard to complain about its admission on appeal. Furthermore a confessional statement made pursuant to the Evidence Act and which was admitted cannot be jettisoned solely on the ground that it was not recorded in the presence of a legal practitioner. – Per M. S. Hassan, JCA
MEDICAL OFFICER – WHEN IN SERVICE OF A STATE FOR THE PURPOSE OF UNDERTAKING A POST MORTEM EXAMINATION
The Supreme Court in ADEBOYE AMUSA v. THE STATE (2003) LPELR-474 (SC) Page 14 paragraphs B-C. Per ONU, JSC Said: ‘’It has been held by this Court in the case of Ehot v. The State (1993) 4 NWLR (Pt. 290) 644 at 658 that: Medical Officer in the service of a state for the purpose of undertaking a post mortem examination is a pathologist and his report is the certificate envisaged by S.41 (1)(a) of the Evidence Act. The certificate has the effect of being sufficient evidence of the facts therein.’’ – Per M. S. Hassan, JCA
CASES CITED
STATUTES REFERRED TO
Kaduna State Penal Code 2017
Kaduna State Administration of Criminal Justice Law, 2017
Administration of Criminal Justice Act, 2015
Constitution of the Federal Republic of Nigeria 1999 (as amended)
