CORAM

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WALTER S. ONNOGHEN, JUSTICE, SUPREME COURT

M. S. MUNTAKA-COOMASSIE     JUSTICE, SUPREME COURT

IDRIS L. KUTIGI , JUSTICE, SUPREME COURT

THMAN MOHAMMED , JUSTICE, SUPREME COURT

ALOYSIUS I. KATSINA-ALU, JUSTICE, SUPREME COURT

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PARTIES

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SHUAIBU ISA APPELLANTS

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KANO STATE RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant was arraigned at the High Court of Kano State for the offence of rape Contrary to 283 of the penal Code. Although the prosecution listed 7 witnesses, he however at the trial called only 6 witnesses who were all examined in chief and cross examined. The evidence led by the Medical Doctor showed that it was a partial penetration. The Appellant on his part denied knowing the victim and the entire allegation and incident. Based on the evidences led by the parties the Court found the Appellant Guilty of the offence and sentenced him to ten years’ imprisonment and a fine of Nl0,000.00 against the Appellant and in default of payment of which he was to serve an additional one-year jail term. Dissatisfied with the decision, the Appellant appealed to the Court of Appeal Which Court also affirmed the decision. Still aggrieved, he appeals to the Supreme Court.

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HELD

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Appeal Dismissed

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ISSUES

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Were the learned Justices of the Court of Appeal not wrong in holding that the charge of rape was proved? Grounds 1, 2, 5, Were the learned Justices of the Court of Appeal not wrong in holding that the question put to the witness Pwl had no negative impact on the trial of the appellant? Ground 3.

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RATIONES DECIDENDI

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OFFENCE OF RAPE- INGREDIENTS OF RAPE

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“The law is settled and well grounded that the prosecution has the burden and duty to prove the accused person guilty of the following ingredients in order to sustain the conviction of the offence of rape:
(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 mensrea, 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.
See Ogunbayo V. State (2007) 8 NWLR (Pt 1035) 157; Upahar V. State (2003) 6 NWLR (Pt 816) 230; State V. Ojo (1980) 2 NCR 391; Okoyomon V, State (1973) 1 SC 21; State V. Anolue (1983) 1 NCR 71 and Iko V, State (2001) 14 NWLR (Pt 732) 221.”PER CLARA BATA OGUNBIYI, JSC.

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CORROBORATION- WHAT COROBORATION ENTAILS IN RAPE CASES

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“Corroboration in a rape case, is that evidence which tends to show that he story of the victim, the prosecutrix, it is the accused that committed the crime. Such evidence need not to be direct. It suffices if it corroborates the said evidence in some material particular to the charge in question. Fzegbo V State NCC 7 page 426. Secondly, where the child is a minor of some discernabie age, her sworn evidence need no further corroboration. This court, in the case of Okovomon V The State (1997)NS held, per Flias, CJN, as follows:
” We may observe that in the very resent case of DPP V. Hester(1 992) 3WLR.869, in which there is an authoritative review of nearly all leading authorities on the subject in English Law, the House of Lords held that the unsworn evidence of a child could amount to corroboration of the sworn evidence of another child. ” PER. I.T.MUHAMMAD.J.S.C.

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CONFESSIONAL STATEMENT- ATTRIBUTES OF CONFESSIONAL STATEMENT THAT CAN AMOUNT TO ADMISSION OF GUILT

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“By virtue of the provision of Section 27(a) of the Evidence Act, a confession, if made voluntary is deemed to be relevant fact as against the person who made it. The law is well settled also that for a confession to amount to an admission of guilt, it must be positive, direct and unequivocal as to the commission of the offence for which the accused is charged. See Patrick Joven and Ors. V. The State (1973) 5 SC 17.” PER C. B. OGUNBIYI, J.S.C.

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CORROBORATIVE EVIDENCE- MEANING OF CORROBORATIVE EVIDENCE

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“On the question of corroboration sought by the appellant, same cannot be at large, but should be defined in the context of the case of Odofin Bello V. The State (1966) 1 All NLR 223 at 230 wherein it was held that:-
“Corroborative evidence is evidence which shows or tends to show not merely that the crime has been committed but that it was committed by the accused.” PER C. B. OGUNBIYI, J.S.C.

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CORROBORATION- WHETHER EVIDENCE OF A MINOR NEED TO BE CORROBORATED

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“The law is trite and well settled that Pwl, though a minor needed no corroboration of her evidence which was sworn on oath. See again the case of Ogunbayo V. The State (supra) where it was held that a sworn evidence of a minor requires no corroboration.” PER C. B. OGUNBIYI, J.S.C.

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PROOF OF RAPE- THE MOST ESSENTIAL INGREDIENT OF THE OFFENCE OF RAPE IS PENETRATION

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“In proof of rape therefore, the most essential ingredient of the offence is penetration, the extent no matter how slight will serve sufficient proof. 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. Again see Iko V. State, Ogunbayo V. State and State V. Ojo all under reference (supra) also Jegede V. State (2001) 14 NWLR (Pt 733) 264. PER CLARA BATA OGUNBIYI, JSC.”PER C. B. OGUNBIYI, J.S.C.

 

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PROOF OF PENERATION IN AN OFFENCE OF RAPE- IN PROOF OF PENETRATION IN A RAPE, THE PENETRATION OF THE VAGINA MUST BE LINKED WITH THE ACCUSED

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“In the case of Jegede V. The State (supra), it was held that “whether the prosecutrix was a minor or an adult, there must first be proof of penetration and that penetration of the vagina must be linked with the appellant.” [Belgore, JSC (as he then was)]. Penetration however slight is sufficient and it is not necessary to prove an injury or the rupture of the hymen to constitute the crime of rape – Kalgo, JSC in Iko V. The State (supra).” PER C. B. OGUNBIYI, J.S.C.

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CORROBORATION- WHETHER CORROBORATION IS NESESSARY IN RAPE CASES

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“On the issue of corroboration of the offence, it should be noted that no law in Nigeria, as of now that says that corroboration is necessary , it is however, desirable to get the evidence of the prosecution strengthened by other implicating evidence against the accused. See: Reekie V. The Queen (1954)]4COACA 501 at 502; State V. Ojo (I980)2NTCR 391; Ogunbayo V. State (2OO7)8XWLR(Ptl035)157. “PER. I.T. MUHAMMAD J.S.C.

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CONFESSIONAL STATEMENT- EFFECT OF FAILURE TO OBJECT CONFESSIONAL STATEMENT WHEN TENDERED IN COURT

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“If an accused person does not object when his confessional statement is being tendered, the only reasonable conclusion is that it was made voluntarily. See BeJIo Shurumo V. the State (2010) 19 NWLR (Pt 1226) 73 wherein it was held that the failure to object the two confessional statements when they were tendered and admitted as exhibits was held as conclusive evidence that they were both made voluntarily. This is more so when a counsel stands by and allows exhibits to sail smoothly through without any objection.” PER C. B. OGUNBIYI, J.S.C.

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OFFENCE OF RAPE- MEANING OF RAPE

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“The act of rape is by nature unlawful because the concept involves an aggressive carnal knowledge of a female without her consent. Consent in this context must be devoid of any form of external influence. A child who is under age is not however capable of giving consent. Rape is by nature grave, devastating, traumatic; it also reduces the totality of the victim’s personality. Several definitions given to rape are all characterized by an absence of consent as a common feature. A number of such definitions include those arrived at by this court in the case of Posu V. State (supra) at page 414 where Fabiyi (JSC) held same as; – “An unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly and against her wili. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent.” Adekeye (JSC) also at page 416 sees rape in legal parlance as: “an 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 threat or intimidation of any kind or by fear or harm, or by means of false and fraudulent representation as to the nature of the act or in the case of a married woman by personating her husband.” In summary therefore, rape can be interpreted as an unlawful carnal knowledge or non-consensuai sex; that is, penetration without consent.” PER CLARA BATA OGUNBIYI, JSC. OFFENCE OF RAPE- INGREDIENTS OF RAPE “The law is settled and well-grounded that the prosecution has the burden and duty to prove the accused person guilty of the following ingredients in order to sustain the conviction of the offence of rape: (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 mensrea, 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. See Ogunbayo V. State (2007) 8 NWLR (Pt 1035) 157; Upahar V. State (2003) 6 NWLR (Pt 816) 230; State V. Ojo (1980) 2 NCR 391; Okoyomon V, State (1973) 1 SC 21; State V. Anolue (1983) 1 NCR 71 and Iko V, State (2001) 14 NWLR (Pt 732) 221.” PER CLARA BATA OGUNBIYI, JSC.PROOF OF RAPE- THE MOST ESSENTIAL INGREDIENT OF THE OFFENCE OF RAPE IS PENETRATION “In proof of rape therefore, the most essential ingredient of the offence is penetration, the extent no matter how slight will serve sufficient proof. 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. Again see Iko V. State, Ogunbayo V. State and State V. Ojo all under reference (supra) also Jegede V. State (2001) 14 NWLR (Pt 733) 264. PER CLARA BATA OGUNBIYI, JSC.” PER C. B. OGUNBIYI, J.S.C. PROOF OF PENETRATION- PARTIAL OR INCOMPLETE PENERATION IS SUFFICIENT PROOF OF RAPE “In proof of penetration, the law is trite as submitted by respondent’s counsel that partial or incomplete penetration Is sufficient proof of the offence of rape and authorities both at Common Law and also under our Statutes are in unison on this point.” PER C. B. OGUNBIYI, J.S.C. CORROBORATION- WHETHER EVIDENCE OF A MINOR NEED TO BE CORROBORATED “The law is trite and well settled that Pwl, though a minor needed no corroboration of her evidence which was sworn on oath. See again the case of Ogunbayo V. The State (supra) where it was held that a sworn evidence of a minor requires no corroboration.” PER C. B. OGUNBIYI, J.S.C. CORROBORATIVE EVIDENCE- MEANING OF CORROBORATIVE EVIDENCE “On the question of corroboration sought by the appellant, same cannot be at large, but should be defined in the context of the case of Odofin Bello V. The State (1966) 1 All NLR 223 at 230 wherein it was held that: – “Corroborative evidence is evidence which shows or tends to show not merely that the crime has been committed but that it was committed by the accused.” PER C. B. OGUNBIYI, J.S.C. PROOF OF PENERATION IN AN OFFENCE OF RAPE- IN PROOF OF PENETRATION IN A RAPE, THE PENETRATION OF THE VAGINA MUST BE LINKED WITH THE ACCUSED
“In the case of Jegede V. The State (supra), it was held that “whether the prosecutrix was a minor or an adult, there must first be proof of penetration and that penetration of the vagina must be linked with the appellant.” [Belgore, JSC (as he then was)]. Penetration however slight is sufficient and it is not necessary to prove an injury or the rupture of the hymen to constitute the crime of rape – Kalgo, JSC in Iko V. The State (supra).” PER C. B. OGUNBIYI, J.S.C. CONFESSIONAL STATEMENT- ATTRIBUTES OF CONFESSIONAL STATEMENT THAT CAN AMOUNT TO ADMISSION OF GUILT
“By virtue of the provision of Section 27(a) of the Evidence Act, a confession, if made voluntary is deemed to be relevant fact as against the person who made it. The law is well settled also that for a confession to amount to an admission of guilt, it must be positive, direct and unequivocal as to the commission of the offence for which the accused is charged. See Patrick Joven and Ors. V. The State (1973) 5 SC 17.” PER C. B. OGUNBIYI, J.S.C. CONFESSIONAL STATEMENT- EFFECT OF FAILURE TO OBJECT CONFESSIONAL STATEMENT WHEN TENDERED IN COURT
“If an accused person does not object when his confessional statement is being tendered, the only reasonable conclusion is that it was made voluntarily. See BeJIo Shurumo V. the State (2010) 19 NWLR (Pt 1226) 73 wherein it was held that the failure to object the two confessional statements when they were tendered and admitted as exhibits was held as conclusive evidence that they were both made voluntarily. This is more so when a counsel stands by and allows exhibits to sail smoothly through without any objection.” PER C. B. OGUNBIYI, J.S.C. CORROBORATION- WHETHER CORROBORATION IS NESESSARY IN RAPE CASES
“On the issue of corroboration of the offence, it should be noted that no law in Nigeria, as of now that says that corroboration is necessary, it is however, desirable to get the evidence of the prosecution strengthened by other implicating evidence against the accused. See: Reekie V. The Queen (1954)]4COACA 501 at 502; State V. Ojo (I980)2NTCR 391; Ogunbayo V. State (2OO7)8XWLR(Ptl035)157. “PER. I.T. MUHAMMAD J.S.C. CORROBORATION- WHAT COROBORATION ENTAILS IN RAPE CASES
“Corroboration in a rape case, is that evidence which tends to show that he stories of the victim, the prosecutrix, it is the accused that committed the crime. Such evidence need not to be direct. It suffices if it corroborates the said evidence in some material particular to the charge in question. Fzegbo V State NCC 7 page 426. Secondly, where the child is a minor of some discernabie age, her sworn evidence need no further corroboration. This court, in the case of Okovomon V The State (1997) NS held, per Flias, CJN, as follows: ” We may observe that in the very resent case of DPP V. Hester(1 992) 3WLR.869, in which there is an authoritative review of nearly all leading authorities on the subject in English Law, the House of Lords held that the unsworn evidence of a child could amount to corroboration of the sworn evidence of another child. “

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CASES CITED

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Not available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999(As Amended)|

Criminal Procedure Code, Cap 37, Laws of Kano State.

Evidence Act, 2011 (As Amended)

Penal Code, No. 18 of 1959, designated as Cap 89 in the Laws of Northern Nigeria, 1963

 

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