ANAS DANTULLU v. THE PEOPLE OF KEBBI

CORAM

Muhammed Lawal Shuaibu Justice Court of Appeal

Abdullahi Muhammad Liman Justice Court of Appeal

Victoria Toochukwu Nwoye Justice Court of Appeal

PARTIES

ANAS DANTULLU

APPELLANTS 

THE PEOPLE OF KEBBI

RESPONDENTS 

AREA(S) OF LAW

CRIMINAL LAW, EVIDENCE, CONSTITUTIONAL LAW, APPEAL, PRACTICE AND PROCEDURE, CRIMINAL PROCEDURE, SEXUAL OFFENCES, WITNESS TESTIMONY, ADMINISTRATION OF CRIMINAL JUSTICE

SUMMARY OF FACTS

The case concerns an appeal against the judgment of the Kebbi State High Court delivered on February 2, 2024, which convicted the Appellant, Anas Dantullu, on charges of rape and gross indecency under Sections 259 and 261 of the Kebbi State Penal Code Law, 2021. The Appellant was arraigned before the lower court on two counts of rape and gross indecency, to which he pleaded not guilty. The prosecution called four witnesses and tendered documentary evidence including the Appellant’s extra-judicial statements, a medical report, and the prosecutrix’s extra-judicial statements. The Appellant testified in his defense but called no other witness. The prosecutrix herself was not called to testify at the trial as she had reportedly been married off to another village and her whereabouts were unknown. After trial, the lower court convicted the Appellant on both counts, finding that the confessional statements of the Appellant, together with the testimony of PW3 (a 12-year-old child witness) and corroborating medical evidence, established his guilt beyond reasonable doubt. Dissatisfied with the judgment, the Appellant filed this appeal.

HELD

1. The appeal was dismissed.

2. The Court of Appeal affirmed the judgment of the Kebbi State High Court delivered on February 2, 2024.

3. The Court held that the prosecution had proved the essential elements of the offences charged beyond reasonable doubt, despite the absence of the prosecutrix’s testimony.

4. The Court found that the evidence of PW3 (12-year-old child witness) was properly admitted and sufficiently corroborated by the medical report and other evidence.

5. The Court concluded that the appellant’s confessional statement, though obtained without legal representation, was properly admitted and, along with other evidence, established the appellant’s guilt.

ISSUES

1. Whether the Learned trial Judge rightly convicted the Appellant without the evidence of the prosecutrix?

2. Whether the Lower Court ought to have discharged and acquitted the Appellant upon the Respondent’s failure to prove its case beyond reasonable doubt?

3. Whether the Learned trial Judge was right when he admitted and relied on Exhibits A and A1 (The Appellant’s extra-judicial statements) and Exhibits D and D1 (the victim’s extra-judicial statements)?

RATIONES DECIDENDI

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

“By virtue of Section 135(1)and(2) of the Evidence Act and Section 36(5) of the 1999 Constitution, (as amended), the burden of proof in criminal cases is on the prosecution which must prove its case beyond a reasonable doubt, and has general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

REASONABLE DOUBT – MEANING AND EXTENT OF PROOF BEYOND REASONABLE DOUBT

“It is also settled that proof beyond reasonable doubt is not proof beyond all shadow of doubt. And once the prosecution is able to prove all the essential ingredients of the offence with which the accused person is charged, the charge at that stage is proved beyond reasonable doubt.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

METHODS OF PROVING GUILT – DIFFERENT APPROACHES AVAILABLE TO PROSECUTION

“In the process of establishing the guilt of the accused, the prosecution may rely on any one or a combination or all the followings: (a). Evidence of an eye-witness or witnesses, or (b). Circumstantial evidence, or (c). Confessional statement of the accused person.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

CHILD WITNESS – PROCEDURE FOR TAKING UNSWORN EVIDENCE FROM A CHILD

“In IDI V. STATE (2017) LPELR — 42587 (SC), the Supreme Court has set out the procedures of taking unsworn evidence of a child as follows: (a). The first duty of the Court is to determine first of all, whether the child is sufficiently intelligent to understand the questions he may be asked in the course of his testimony and to be able to answer rationally. This is tested by the Court putting him preliminary questions which may have nothing to do with the matter before the Court. (b). If, as a result of these preliminary questions, the Court comes to the conclusion that the child is unable to understand the questions or to answer them intelligently, the child is not competent witness within the meaning of Section 155 (1). But if the child passes the preliminary test, then the Court must proceed to the next test as to whether, in the opinion of the Court, the child is able to understand the nature and implication of an oath. (c). If after passing the first test, he 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, he passes the second test so that in the opinion of the Court, he understands the nature of an oath, he will give evidence on oath.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

UNSWORN TESTIMONY OF CHILD WITNESS – NEED FOR CORROBORATION

“It is however pertinent to note that Subsection 3 of Section 209 of the Evidence Act, 2011 emphatically provides as follows: ‘(3). A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection 1 of this Section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.'” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

CORROBORATION IN RAPE CASES – ELEMENTS REQUIRING CORROBORATION

“And the corroborative evidence required in the charge of rape must confirm the following: (a). That sexual intercourse has taken place, (b). That it took place without the consent of the girl or woman, (c). That the accused person was the man who committed the crime.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

CORROBORATION – MEANING AND NATURE OF CORROBORATIVE EVIDENCE

“Before examining the corroborative evidence if any, in this case, let me state straight away that corroboration is no more than an evidence tending to confirm and strengthen other evidence sought to be corroborated. Thus, it does not necessarily have to be direct evidence that the named person committed the offence or that such evidence as would amount to confirmation of the whole account adduced by the witness, so long as it corroborates the evidence in an aspect material to the charge.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

HEARSAY EVIDENCE – EXCEPTION TO HEARSAY RULE

“At any rate, that evidence and indeed the evidence of the father of the victim, PW2 cannot be dismissed as hearsay as same went to establish facts explaining relevant fact in issue in consonance with provisions of Section 7 of the Evidence Act.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

CONFESSIONAL STATEMENT – REQUIREMENT FOR LEGAL REPRESENTATION

“By all intent and purposes, the Appellant’s extra-judicial statement is a confessional statement within the contemplation of Section 28 of the Evidence Act, 2011. Nonetheless, the Supreme Court has in deference to the submission of Counsel to the Respondent, held that the failure to perform the act in accordance with dictates of similar provisions of the Laws amount to flagrant non-compliance which would render such confessional statements inadmissible.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

WITNESSES – PROSECUTION’S DISCRETION IN CALLING WITNESSES

“Finally, on the failure to call the prosecutrix to testify in Court; it is settled that the prosecution does not have to call a given witness or witnesses but only those that can sufficiently prove its case.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

ABSENCE OF VICTIM WITNESS – WHEN FAILURE TO CALL VICTIM IS NOT FATA

“In the present case, the prosecution had proffered plausible explanation for their failure to call the prosecutrix to testify. PW4, gave evidence that the prosecutrix was married out, she lives in another village and her whereabout is unknown. Furthermore, there are other evidence on record, tendering to establish the commission of the offences beyond reasonable doubt. In other words, the failure to call the prosecutrix to testify in this case did not, in view of other evidence adduced at the trial, diminished the case of the prosecution.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

PROOF OF RAPE – ESSENTIAL ELEMENTS TO BE ESTABLISHED

“As stated earlier in this judgment, once the prosecution is able to prove all the essential ingredients of the offence with which the accused person is charged, the charge is proved beyond reasonable doubt. The evidence adduced by the prosecution in the instant case, no doubt proved that the Appellant had sexual intercourse with the prosecutrix, without her consent and that there was penetration.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

PROSECUTION WITNESSES – OBLIGATION TO CALL MATERIAL WITNESSES

“While it is a correct statement that it is at the discretion of the prosecution to call the witnesses they consider relevant to prove their case, it is equally clear that where such vital and material witnesses are not called, such a failure could be fatal to their case.” – Per VICTORIA TOOCHUKWU NWOYE, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Evidence Act, 2011

• Kebbi State Penal Code Law, 2021

• Kebbi State Administration of Criminal Justice Law, 2021

• Administration of Criminal Justice Act 2015

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