Adekola Ishola Vs Fayoyin Abake & Anor (1972)

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ELIAS, C.J.N.

This is an appeal by the Director of Public Prosecutions of the North-Western State (herein Prosecutor/Appellant) from the judgment of M. Muhammed, J., in the High Court at Sokoto in which, on June 29, 1971, he convicted Hassan Audu, aged 39 years (herein Respondent), of rape committed against Inno Garba, then aged 9 years, contrary to Section 283 of the Penal Code, and sentenced the said Hassan Audu to a term of imprisonment for 3 years to which he added the qualification that it should be suspended for the same period.

The facts of the case, according to the prosecution, were that the girl in the course of  her hawking mangoes visited the room of the accused at the Coca Railway Running Shed quarters in Gusau on May 23, 1970; that the accused promised to buy all her mangoes if she would go into bed with him which she did; that the accused then took off his clothes, went into bed with her and had sexual intercourse with her, in the course of which she was “disvirgined”; and that when the accused saw the girl bleeding from her vagina he attempted to wash the blood off but, as the bleeding would not stop, he asked her to go home and then rode away on his bicycle to his uncle and told him what had happened.

The accused admitted having had sexual intercourse with the girl, the only difference between the story told by the accused both in his statement to the police and in his defence on oath, and the girl’s own account was as to the manner in which the incident had taken place.

According to the respondent, when the girl arrived in his room, he had gone to bed and told the girl to go away; but that the girl came into bed with him and started playing with his penis in consequence of which he had sexual intercourse with her. There is no doubt that, on these facts, the offence of rape was proved since it is illegal for anyone to have sexual intercourse with a girl under the age of 14 years with or without her consent. Medical evidence was to the effect that the girl was only 9 years of age. The accused was rightly in our view convicted of the offence and sentenced to a term of 3 years’ imprisonment.

The learned trial Judge would appear, however, to have been moved by sentiment to proceed there after to suspend the sentence, for he said
“However, on the evidence, I am more inclined to believe that the sexual intercourse in question came about more from the deep love which the accused has for Inno and which love is unmistakably reciprocated by her. For in spite of the damage caused her by the accused through that intercourse, she did not mince her words in declaring in open court that she was prepared to marry him if she would be allowed to do so.”

We think that the appellant is right in pointing out that the learned trial Judge has no jurisdiction to impose a suspended sentence under the law of the North-Western State. Of the various types of punishment provided for in Section 68 of the Penal Code, there is none for a suspended sentence of imprisonment, although there is provision for imprisonment simpliciter. The Penal Code itself provides in Section 283 for imprisonment for life or any less term on conviction for rape; the convicted person may suffer a fine in addition.

While in English law the punishment of a suspended sentence of imprisonment has been introduced under Section 39 of the Criminal Justice Act, 1967, and although Section 13 of the High Court Law of the Northern States provides that the jurisdiction of the High Court of North-Western State is mutatis mutandis the same as that of the English High Court, the (English) Criminal Justice Act, 1967, is not a statute of general application in the North-Western State of Nigeria. Accordingly, we think that the High Court at Sokoto acted in excess of its jurisdiction by importing the idea of a suspended sentence for which there is no provision in the applicable law.  

We must, therefore, allow this appeal. The appeal is hereby allowed and the order suspending the sentence is set aside.  The sentence of 3 years’ imprisonment imposed on the respondent by M. Muhammed, J., at the Sokoto High Court on June 29, 1971, is hereby confirmed without the qualification of suspension.

The respondent, who appeared in person before us and to whom all the proceedings were duly interpreted by an official interpreter, expressed a desire to marry the girl, now aged eleven years, as soon as her parents would permit. We, however, consider that this fact should not affect our view of the enormity of his crime against a young girl of  9 years.

We would, however, add a recommendation to mercy for consideration by the appropriate authorities provided, as he asserted before us, the respondent takes immediate steps towards marrying Inno Garba.

Other Citation: (1972) LCN/1425(SC)