BELLO SHEHU v. THE STATE

CORAM

Muhammed Lawal Shuaibu Justice Court of Appeal

Abdullahi Muhammad Liman Justice Court of Appeal

Victoria Toochukwu Nwoye Justice Court of Appeal

PARTIES

BELLO SHEHU

APPELLANTS 

THE STATE

RESPONDENTS 

AREA(S) OF LAW

CRIMINAL LAW, CONSTITUTIONAL LAW, EVIDENCE, HUMAN RIGHTS, APPEAL, PRACTICE AND PROCEDURE, ADMINISTRATIVE LAW

SUMMARY OF FACTS

The Appellant and one other person were arraigned before the High Court of Justice sitting at Birnin Kebbi, Kebbi State on charge No. RB/HC/30C/2023 on two counts of conspiracy to commit rape and rape. The charges alleged that on February 4, 2023, at about 16:30 hours, in a room in the house of Yahaya Abdullahi at Badariya Area, Birnin Kebbi town, the Appellant and his co-defendant conspired to rape one Fadila Umar, a 15-year-old girl, against her will, and proceeded to commit the actual rape by making her unconscious and forcefully taking her into a room where they had sexual intercourse with her against her will.

The Appellant and his co-defendant pleaded not guilty, and the matter proceeded to trial. The prosecution called five witnesses and tendered documentary exhibits including the defendants’ extra-judicial statements and a medical report. The Appellant testified in his defense but called no other witness.

On January 10, 2024, the trial court delivered its judgment, finding the Appellant guilty and convicting him based primarily on his extra-judicial statements, which the court considered to be confessional in nature. The Appellant was sentenced to life imprisonment while his co-defendant was discharged and acquitted.

Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal on March 8, 2024. After obtaining leave of court, the Appellant amended his grounds of appeal to include eight grounds.

HELD

1. The appeal was allowed.

2. The judgment of the Lower Court on Charge No. KB/HC/30C/2023 delivered on January 16, 2024, was set aside.

3. The Appellant was discharged and acquitted.

ISSUES

1. Whether or not the extra-judicial statement of the Appellant is confessional and the trial Court rightly convicted him on same?

2. Whether or not the Learned trial Court tampered with the fundamental right to fair hearing of the Appellant when it ignored and refused to consider an issue raised before it by the parties?

3. Whether or not the prosecutrix can validly withdraw consent retrospectively after the fact?

4. Whether or not the Learned trial Court rightly allowed and granted the Respondent’s application to recall PW4 after being discharged to come and re-testify in the case and to suo motu recall exhibits A & B to be retendered as Exhibits F & G by the Respondents?

RATIONES DECIDENDI

CONFESSIONAL STATEMENT – WHAT CONSTITUTES A CONFESSIONAL STATEMENT WITHIN THE MEANING OF THE LAW

“Is the above statement direct, positive and unequivocal? I do not think so because to qualify as a confession, a statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must in so doing, be clear, precise and unequivocal. What the Appellant admitted was consensual sex in which both parties were ad idem.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

BURDEN OF PROOF IN CRIMINAL CASES – BURDEN OF ESTABLISHING GUILT BEYOND REASONABLE DOUBT REMAINS ON THE PROSECUTION

“I must reiterate that what is required in proving an offence beyond reasonable doubt is that the prosecution must establish the material ingredients of the alleged offence by adducing credible evidence in support of the charge which was not done in the present case. Furthermore, the burden of proof remains on the prosecution throughout the trial and does not shift. It is thus an error by the Lower Court to place on the Appellant the burden of proving his innocence as can be gleaned from the excerpt of the judgment above.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

ADMISSIBILITY OF CONFESSIONAL STATEMENTS – EFFECT OF NON-COMPLIANCE WITH STATUTORY PROVISIONS ON RECORDING STATEMENTS

“The Supreme Court has, of recent, in the case of FRN V. NNAJIOFOR (supra) held that any purported confessional statement recorded in breach of the said provision is of no effect. In other words, such statement is impotent and worthless. That being the position, the Appellant’s extra-judicial statements, Exhibits A & B, F & G are worthless and same ought not to be countenanced by the Lower Court.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

EVALUATION OF EVIDENCE – DUTY OF TRIAL COURT TO CONSIDER ALL EVIDENCE

“There is no gainsaying the fact that it is the duty of a trial Court to consider the case of the parties, evaluate all evidence adduced before it and ascribe probative value thereto, expunge inadmissible evidence, and come to a just determination. Depending on whether the case is civil or criminal, the Court will consider which side the scale tilts or whether the guilt of the accused person was proved beyond reasonable doubt.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

FAIR HEARING – DUTY OF COURT TO CONSIDER ALL ISSUES PROPERLY PLACED BEFORE IT

“There is no doubt, a compelling duty on all Courts lower in hierarchy to the Supreme Court to consider all issues properly placed before them for determination, even after holding it lacks jurisdiction to entertain the suit. However, the failure to do so is not necessarily fatal to the judgment if such failure did not occasioned a miscarriage of justice.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

FAIR HEARING – CONSIDERATION OF PARTIES’ CASES ESSENTIAL FOR SUBSTANTIAL JUSTICE

“In UZUDA & ORS V. EBIGAH & ORS (2009) LPELR — 3458 (SC) it was held that substantial justice cannot be done unless Courts of justice strain to ensure that all the facts and issues put before them by both parties’ cases are considered before arriving at their decision. The effect of not considering the case put forward by a party before the Court that decided the case amounts to a complete black out of the unheard party.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

RAPE – CONSENT AS A COMPLETE DEFENSE TO THE OFFENCE OF RAPE

“I have stated elsewhere in this judgment and it is trite that one of the essential elements of the offence of rape, aside from penetration, is absence of consent of the victim. In amplifying the importance of consent, the Supreme Court in OGUNBAYO V. STATE (2007) 8 NWLR (PT. 1035) 157 held that the consent of the victim is a complete defence to the offence.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

RAPE – ESSENTIAL ELEMENTS OF THE OFFENCE OF RAPE

“In a charge of rape or unlawful carnal knowledge of a female without her consent as in the present case, the duty of the prosecution is to prove the followings: (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 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 MUHAMMED LAWAL SHUAIBU, J.C.A.

PROOF OF RAPE – IMPORTANCE OF ESTABLISHING ABSENCE OF CONSENT

“I cannot but totally agree with the Appellant that in so far as the Appellant and the prosecutrix agreed to the sex for a fee, the sexual intercourse is consensual and which consent was not shown to have been withdrawn by the prosecutrix.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

RECALL OF WITNESSES – POWER OF COURT TO RECALL WITNESSES OR EVIDENCE

“There can be no question as to the general proposition that a Judge in a criminal proceedings has powers to suo motu call or recall a witness and to examine or re-examine a witness called by either party. But his discretion in the matter is not unfettered in view of our adversary system and the right of the accused person to a fair hearing as entrenched in the 1999 Constitution (as amended).” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

MISCARRIAGE OF JUSTICE – BURDEN OF PROVING THAT IRREGULARITY CAUSED MISCARRIAGE OF JUSTICE

“I have stated that it is not enough to allege that a procedure is irregular, but for such an irregular procedure to be set aside, it must be shown to have caused gross miscarriage of justice. And since miscarriage of justice is an injustice done to the party alleging it, the burden of proof is on the party alleging that the injustice has been miscarried.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

CONFESSIONAL STATEMENT – NECESSITY FOR CONFESSION TO SATISFY ALL INGREDIENTS OF THE OFFENCE

“Having reproduced the content of Exhibit…. The next question is what was the offence the Appellant stood trial for and the ingredients of the offence? This is because for it to amount to a confessional statement, the Appellant must admit to committing the offence or made suggestive statement which could be termed admission to the commission of the offence. By this, the admission must satisfy all the ingredients of the offence. If the statement admits part of the ingredient of the offence, it is not a confessional statement within the meaning of the provisions of section 28 of the Evidence Act, 2011.” – Per VICTORIA TOOCHUKWU NWOYE, J.C.A.

CONVICTION FOR RAPE – ERROR OF CONVICTING WITHOUT PROOF OF ESSENTIAL INGREDIENTS

“It is clear from the foregoing that the Trial Court relied heavily on Exhibit…. which was considered to be a confession and without this exhibit…, there was no other evidence to support the case of the Respondent in proof of the essential ingredient of rape for which the Appellant was charged with and convicted. Therefore, in the absence of that vital evidence of consent or lack of consent, it is wrong of the lower Court to convict the Appellant for rape.” – Per VICTORIA TOOCHUKWU NWOYE, J.C.A.

CASES CITED

STATUTES REFERRED TO

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

• Kebbi State Administration of Criminal Justice Law, 2021

• Evidence Act, 2011

• Penal Code Law

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