Ali V. State (2020)
LAWGLOBAL HUB Lead Judgment Report
OLUKAYODE ARIWOOLA, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Jos division, delivered on 17/07/2018 – Coram:- Uchechukwu Onyemenam; Habeeb Adewale O. Abiru; Elfrieda O. Williams-Dawodu, JJCA which upheld the judgment of the High Court of Gombe State delivered by the Hon. Justice J. A. Awak, in charge No. GM/26C/2013 on the 30th day of June, 2015.
The appellant had been arraigned before the trial Court by a charge dated 18th November, 2013 for the offence of rape, contrary to Section 282 of the Penal Code and punishable under Section 283 of the same Code.
The appellant was alleged to have, on or about the 12th of March, 2012 at Jauro Abare Quarters of Gombe State, had unlawful carnal knowledge of one Hadiza Shuaibu who was five (5) years old at the time of the commission of the alleged offence. The Charge reads:-
“That you Mohammed Ali of Jauro Abare quarters on or about 12th March, 2012 at Jauro Abare quarters of Gombe State within the jurisdiction of this Honourable Court did an unlawful act, to wit: having unlawful carnal knowledge of one Hadiza Shuaibu – 5 years old and thereby committed an offence contrary to Section 282 of the Penal Code and punishable under Section 283 of the Penal Code.”
The appellant pleaded not guilty to the charge and the matter proceeded to trial. The Prosecution called six witnesses and tendered three documents that were admitted and marked – Exhibits A, B and C respectively. The appellant in his defence testified and called two other witnesses. At the conclusion of the trial, counsel filed and adopted their respective written addresses.
In its reserved judgment, the trial Court found the appellant guilty as charged. He was convicted and sentenced to ten (10) years imprisonment without an option of fine.
Appellant was aggrieved by the judgment of the trial Court, hence he appealed to the Court below. In its reserved judgment delivered on 17th July, 2018, the Court below found as follows:
“All in all, this Court finds that the appellant has not given it any tangible or cogent reason to tamper with the evaluation of evidence carried out by the lower Court. This Court finds no merit in the appeal and it is hereby dismissed. The judgment of the High Court of Gombe State delivered by Honourable Justice J. A. Awak in charge No. GM/26C/2013 on the 30th of June, 2015 is affirmed along with the conviction and sentence passed on the appellant therein.”
Further aggrieved by the judgment of the Court below led the appellant to appeal to this apex Court with his Notice of Appeal filed on 15th August, 2018 which was amended to five grounds of appeal. Upon settlement of the records of appeal, parties filed and duly exchanged briefs of argument. The appeal was later heard on 8th day of October, 2020.
In the appellant’s brief of argument settled by Josiah Daniel-Ebune Esq., the learned counsel distilled the following three issues for the determination of the appeal:
- Whether the judgment of the trial Court is unconstitutional and therefore a nullity (Ground 4 of the Amended Notice of Appeal).
- Whether the Court of Appeal approached the resolution of the appellant’s appeal against the judgment of the trial Court, fairly and dispassionately and thereby did not prejudge the issues. (Ground 1 of the Amended Notice of Appeal).
- Was the Court of Appeal right in affirming the decision of the trial Court on the Potency of Exhibit C, and the evidence of PW3 and 4 as corroborating the evidence of the Prosecution having regard to all the facts and circumstances of this case? (Grounds 2, 3 and 5 of the Amended Notice of Appeal).
In the respondent’s brief of argument settled by Zainab Abdulkadir El-Rasheed Esq., filed on 7/2/2019, learned counsel also formulated three issues for determination as follows:-
- Whether the lower Court was right in affirming the judgment of the trial Court on Exhibit C (Ground 2).
- Whether the decision of the lower Court in affirming the judgment of the trial Court has occasioned a miscarriage of justice to the appellant (Grounds 1, 3 and 5).
- Whether the judgment of the trial Court violates constitutional provisions and therefore makes it invalid. (Ground 4).
However, reading through the Amended Notice of Appeal of five grounds, I am convinced that the following are the two issues that arise for the determination of the appeal:
- Whether the Court of Appeal was right in upholding the judgment of the trial Court that the prosecution proved the charge of rape against the appellant beyond reasonable doubt. (Grounds 2, 3 and 5 of the Amended Notice of Appeal).
- Whether the Court of Appeal was not wrong in affirming the judgment of the trial Court which was prima facie null and void, not having been signed by the trial Judge who delivered the said judgment. (Grounds 1 and 4 of the Amended Notice of Appeal).
In arguing Issue 1, learned appellant’s counsel referred to the testimony of the victim of the alleged rape – Hadiza Shuaibu at 8 years old and contended that she gave an unsworn evidence before the Court and that the prosecution relied on the statement and the content of Exhibit C – the Medical report and Exhibits A and B, which though not confessional in nature but were said to be consistent with the evidence of the victim that she did not give her consent to the assault on her.
Learned counsel further referred to the trial Court’s evaluation of the evidence adduced by the prosecution when it came to the conclusion that it proved the case beyond reasonable doubt against the appellant, emphasizing the potency of the exhibit unsworn evidence of the prosecution, being credible, independent and in line with Section 209(3) of the Evidence Act. Learned counsel however contended that in all its findings, the trial Court did not decide how Exhibit C connected the appellant with the offence. He referred to the findings of the Court below on pages 7 and 8 of the judgment on pages 159-160 of the record. He contended that the type of corroboration required under Section 282 (1) of the Penal Code is not ordinary corroboration but such corroboration to clearly implicate the accused. He relied on Igbine Vs. State (1997) 9 NWLR (Pt.519) 101 at 108.
Learned counsel referred to the Statements of both parents of the victim – PW3 and PW4, and their respective oral evidence in Court. He contended that there were inconsistencies in the oral testimonies of PW1 – PW4 and their respective previous statements on record. He submitted that where a witness has made a previous statement which is inconsistent with his oral testimony, the previous statement, whether sworn or unsworn, does not constitute evidence upon which the Court can act. He submitted that it was unsafe to have convicted the appellant on the evidence of those witnesses.
He contended that there were inconsistencies in the prosecution’s evidence, such as to cast reasonable doubt on the guilt of the appellant, and should have been given the benefit of the doubt. He relied on Nwabueze Vs. The State (1988) 2 NSCC 389, Onubogu & Anor Vs. The State (1974) 1 All NLR 5 at 17.
Learned counsel contended that there was nothing to show that the PW1 and PW2 properly investigated the case. He contended further that the evidence of both PW3 and PW4 are hearsay and inadmissible. He referred to the evidence of the Prosecutrix herself at pages 65-66 of the Record. He also referred to Exhibit C – the Medical report, said to have been prepared by a Youth Corper on National Service. He contended that being a Corp member, he could not have acquired the requisite experience to give an opinion on sensitive issue of this nature. He submitted that Exhibit C is not independent to corroborate the testimony of PW5 as it did not link the appellant with the charge. He contended that the said medical report was not served on the appellant at least ten (10) clear days before it was tendered and admitted in evidence. He relied on Section 57 of the Evidence Act.
He submitted that Exhibit C was therefore wrongly admitted in evidence in the proceedings before the trial Court. Learned counsel contended that the essence of medical report in a case of rape is to establish injury or some scientific proof of penetration. He contended further that Exhibit C speaks for itself and it is apparent from the contents that it did not provide the requirement of the law to establish rape and that the appellant is connected to it.
Learned counsel contended that for another evidence to corroborate the other, such other must not be a repetition of the evidence to be corroborated, otherwise there will be no need for the original evidence. He relied on Okabichi Vs. The State (1975) NSCC 124 at 130.
On the proof required of rape allegation, he relied on Francis Okpanefe Vs. The State (1969) 1 All NLR 420. On the law on the critical point of strictly linking appellant with penetration and specifically with the victim, he relied on Jegede Vs. The State (2001) 14 NWLR (Pt. 733) 264 at 274-275.
Learned counsel submitted that from the statement of the appellant admitted in evidence and his oral testimony at page 82 of the record, corroborated by Exhibit C itself and pages 8 and 20 of the record, he contended that the maker of Exhibit C only examined the prosecutrix. He contended further that the two Courts below ought to have known that the appellant denied the contents of Exhibit C hence the Prosecutrix ought to have called the maker of Exhibit C to enable the appellant exercise his right to cross examine the Doctor. He submitted that the failure to call the maker of Exhibit C and the fact that there was no other independent credible evidence of penetration implicating the appellant has occasioned actual miscarriage of justice which rendered both conviction and sentence of the appellant unsustainable. He urged the Court to resolve the issue in favour of the appellant.
On this issue 1, the respondent’s counsel referred to the testimony of PW5 – the prosecutrix on page 65 of the record and how same was corroborated by Exhibit C. Learned counsel referred to the findings of the trial Court on page 101 of the record and contended that the unsworn testimony of the prosecutrix was corroborated by Exhibit C. He relied on Oguno Vs. The State (2013) 15 NWLR (Pt.1376) 1 at 30. He referred to the evidence adduced by the prosecution and contended that the said evidence was neither challenged, discredited nor controverted by the defence during the trial. He submitted that where a party fails to cross examine a witness on a point, he is bound by that point. He relied on Okosi Vs. The State (1989) 1 CLRN 39.
Learned counsel urged the Court to hold that the Court below was right in affirming the judgment of the trial Court that the prosecution proved its case against the appellant beyond reasonable doubt. He urged the Court to resolve the issue against the appellant but in favour of the respondent.
As earlier stated, the appellant was charged with the offence of rape of a five (5) year old girl. He was tried, found guilty and convicted as charged. He was later sentenced to a term of imprisonment. His appeal to the Court below was found lacking in merit and was accordingly dismissed, leading to this appeal.
What then is the offence of rape? It is the 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 threats or intimidation of any kind or by fear of 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. See Sunday Jegede Vs. The State (2001) LPELR -1603 (SC) (2001) 14 NWLR (Pt. 733) 264 at 275; (2001) 10 SCM 49; Edet Okon Iko Vs. The State (2001) 14 NWLR (Pt.732) 221.
At common law, an offence of rape is the unlawful sexual intercourse committed by a man with a woman not his wife through force and against her will. Generally, the common law crime of rape required at least a slight penetration of the penis into the vagina. See Black’s Law Dictionary, Ninth Edition page 1374; Habibu Musa Vs. The State (2013) LPELR – 19932 (SC) (2013).
In Nigeria, in particular, under the Penal Code Act, a person is said to commit rape who has sexual intercourse with a woman in any of the following circumstances –
(a) Against her will;
(b) Without her consent;
(c) With her consent, when her consent has been obtained by putting her in fear of death or of hurt;
(d) With her consent, when the man knows that he is not her husband and that her consent is given because she believe that he is another man to whom she is or believes herself to be lawfully married;
(e) With or without her consent when she is under fourteen years of age or of unsound mind.
See; Section 282 (1) of the Penal Code Act.
Unlawful sexual intercourse with a person under the age of consent, regardless of whether it is against that person’s will is known as statutory rape.
There is no doubt and it is not in dispute that as at the time of the alleged rape, the victim in this case was only five (5) years old, and by every standard – a child, who certainly cannot give consent to sexual intercourse. She however testified in Court at the age of eight (8) years. Yet under fourteen (14) years of age hence was said to have given evidence without being on oath. In other words, she was unsworn.
Generally, in a charge of rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove the following.
(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.
See Oludotun Ogunbayo Vs. The State (2007) 1 NWLR (Pt.1035) 157; (2007) 5 SCM 154; Upahar Vs. The State (2003) NWLR (Pt.816) 290; State Vs. Ojo (1980) 2 NWLR 391; (1980) 2 NCR 391; Okeyamor Vs. The State (2005) 1 NCC 499; Iko Vs. The State (2005) 1 NCC 499; Ndewenu Posu & Anor Vs. The State (2011) 2 NWLR (Pt.1234) 393 at 416-417.
From the evidence adduced by the prosecution during the trial, the Court found that the prosecutrix who testified that when she was sent on an errand by her mother – PW4 to the shop of the appellant to buy beans, the appellant removed something from his waist under his trouser and inserted the thing in her vagina. She was said to have stayed too long to return to the house, but when she returned, she came with neither the money (twenty Naira) she had gone with nor the beans she was to buy. She was given yet another money – now fifty naira to go to the same shop for the beans but she went out and refused to go – crying. The trial Court further found that what the appellant was said to have inserted into the prosecutrix vagina was painful.
The testimony of her mother – PW4 was said to have confirmed the unsworn testimony of the prosecutrix.
Exhibit C is the medical report of one Dr. Akanbi who examined the prosecutrix upon presentation after the alleged sexual assault.
On record at page 100, the trial Court found, inter alia, as follows:
“the testimony of PW5 Khadija Shaibu to the effect that when sent on errand by her mother to the shop of the accused person to buy beans, the accused person put something into her private part. This witness though young in age gave an intelligent evidence and knew the consequence of telling the truth and lies before the Court, that what the accused person put into her private part is attached to his body, at the lower part of his body.”
The learned trial judge on page 101 of the record came to the conclusion that the unsworn testimony of the victim was corroborated by the medical report of the examination carried out by Dr. Akanbi confirming that the appellant had raped the prosecutrix.
Ordinarily, the most important and essential ingredient of the offence of rape is penetration and the Court will deem that sexual intercourse has taken place upon proof of penetration of the penis into the vagina. Therefore, any slightest penetration of the male organ – the penis, will be sufficient to constitute the act of sexual intercourse. In other words, emission or the rupture of the hymen is unnecessary to establish the offence of rape. See Ndewenu Posu & Anor Vs. The State (Supra).
However, penetration required by law in an offence of rape is the entry of the penis or some other part of the body or a foreign object into the vagina or other body orifice. This is the typical meaning today in statutes defining sexual offences. See Black’s Law Dictionary, Ninth Edition, page 1248.
In Exhibit C which was the medical report of the Medical Doctor who examined the prosecutrix at the Gombe Specialist Hospital, the doctor reported, inter alia, as follows:
“Patient claims the man (Appellant) took off her pant and skirt and inserted something into her private part.
She was said to have cried both on micturition and defecation at home and assailant was arrested the same night and placed on Police custody.
On examination, there was no sign of beating or physical abuse. The main finding was in the examination of genitals with mild oedema of the labia minora and torn hymen at 9 O’clock position.
There was also some whitish vaginal discharge at the vagina orifice.
…………………………………..
An assessment of sexual assault was made. She was discharged home.” (Brackets supplied)
It is note worthy that the learned appellant counsel had attacked the medical report – Exhibit C on the ground that it was not tendered by the maker to be available for cross examination by the appellant. This is unfortunate and there is a misconception by the counsel. It depends on the purpose for which the said medical report was being tendered.
Generally, by the provisions of the Criminal Procedure Code, a medical report may be admitted in evidence for the purpose of proving the nature of any injuries received by such a person. On the admission of such report, same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court. If by reasons of any such disagreement or otherwise it appears desirable for the ends of justice that such medical report officer or registered medical practitioner shall attend and give evidence in person, the Court shall summon such medical officer or registered medical practitioner to appear as a witness. See Section 249 (a)-(c) of the Criminal Procedure Code. In other words, in practice and procedure, a medical report need not be tendered by the medical officer or practitioner who prepared or made same. See Mohammed Sarki Fulani M. Vs. The State (2018) LPELR – 45195 (SC).
There is nothing on record to show that the learned counsel prayed the Court to summon the Medical Officer who examined the prosecutrix and prepared the report admitted as Exhibit C for the purpose of being cross examined. The medical report was therefore properly admitted in evidence by the trial Court. It was relevant and admissible in the circumstance. The trial Court was right to have relied on same on the findings therein on the alleged sexual assault on the prosecutrix – PW5. The medical report indeed materially corroborated the unsworn testimony of PW5 who was the victim to the effect that she was sexually assaulted.
Still on the record of appeal, there is nothing to show that the appellant denied being with the prosecutrix on the day in question where her mother (PW4) had sent her on errand to buy beans.
Even though the prosecutrix who testified as PW5 was barely eight (8) years old when she testified before the trial Court, her testimony was properly countenanced when taken together with the testimonies of her parents – PW3 and PW4 and Exhibit C. The provisions of Section 209 (1) and (3) of the Evidence Act was not breached in any form.
On the attack by the learned counsel to the appellant on the testimony of PW4 – the mother of the Prosecutrix, the Court below had found as follows:
“The evidence led by the fourth prosecution witness that she sent the victim to the shop of the accused defendant to buy beans and that the victim stayed for a long time and came back without the money or the beans and that when she sent the victim to go back to buy the beans, the victim refused to go and was crying, are statements that the witness perceived herself and is not hearsay evidence. The statement of the witness of what the victim told her as the reason for her not wanting to go back to the shop of the accused defendant cannot also be termed as hearsay evidence because the victim who told her, testified as a witness and her evidence confirmed the statement of the fourth prosecution witness. The evidence of the fourth prosecution witness corroborated the evidence of the victim in material particulars and the lower Court was correct to have treated it as such.”
I cannot agree more with the Court below, that the testimony of the PW4 corroborated the unsworn testimony of the prosecutrix and the trial Court was correct in treating it as such.
From the totality of the evidence adduced by the prosecution before the trial Court, the Court was correct in coming to the conclusion that the prosecution proved the charge of rape against the appellant beyond reasonable doubt. The Court below was therefore right to have affirmed the conviction and sentence of the appellant by the trial Court. Accordingly, this issue is resolved against the appellant.
The second issue for determination as it arose from the grounds of appeal filed by the appellant is whether the Court below was not wrong in affirming the judgment of the trial Court which was, prima facie null and void, not having been signed by the trial judge who delivered the said judgment.
As earlier noted in this judgment, the learned appellant’s counsel had contended that although the judgment of the trial Court was dated 30/6/15, it was neither sealed, initialed nor signed by the learned trial Judge in the open Court at the time of the delivery of the judgment in the open Court. It was therefore not constitutionally authenticated. Learned counsel submitted that the said judgment violated the provisions of Section 294 (1) of the Criminal Procedure Code touching date, signature and seal, hence it is invalid and should be so declared.
In response, learned counsel for the respondent contended that the judgment of the trial Court satisfied all the requirements of the Constitution and the Criminal Procedure Code. He submitted that it is the primary duty of the appellant to compile and transmit the record of proceedings of the trial Court to the appellate Court through the appeal registry of the trial Court. Learned counsel contended that it is not in dispute that record of proceedings of the trial Court transmitted to the Court below by the appellant is a typed record of the proceedings of the trial Court which is secondary evidence in nature. He contended further that the only way the appellant could have been able to justifiably raise an issue of violation of the Constitution and the Criminal Procedure Code was if the handwritten judgment of the Judge is placed before the Court and shown to be unsigned and not sealed as required by law.
There is no doubt, that every Court established under the Constitution of the Federal Republic of Nigeria, 1999 (as amended) shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause on matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
See Section 294 (1) of the Constitution. And by Section 269 (1) of the Criminal Procedure Code – every judgment shall, inter alia, be dated and signed or sealed by the Court in open Court at the time of pronouncing it.
On the record, the judgment of the trial Court being attacked now is on pages 86-105 of the record. On page 86, being the first page of the judgment, it is indicated that the judgment was delivered on 30th day of June, 2015. This is conceded by the appellant. It is also indicated that it is the judgment of Honourable Justice J. A. Awak in Suit No. GM/26c/13. On the last page of the judgment on page 105 of the record of appeal, it is indicated that the document is a Certified True Copy, duly certified by one Hannatu Alawuta – Principal Registrar (Appeals) of the High Court of Gombe State. It is indicated at the conclusion of the said judgment that the Judge signed and dated the judgment.
Ordinarily, any document not signed does not have any efficacy in law. Indeed, such a document is worthless and a worthless document cannot be efficacious. See Omega Bank Nigeria Plc Vs. O.B.C Ltd (2005) 2 SCM 119; (2005) LPELR – 2636 (SC); (2005) 8 NWLR (Pt.928) 547. In this matter, the appellant’s counsel contended that “no one knows when the word ‘SGD’ typed on the space provided for signature on the word ‘JUDGE’ which is neither the initials nor the names of the trial Judge not indicated thereunder”. Learned counsel submitted that merely typing the word ‘SGD’ on the Judgment of the trial Court is not indication that the trial Judge who delivered it, signed or initialed the said Judgment. I must state clearly before proceeding further that the argument of the learned appellant’s counsel on this point, is to say the least, spurious, vexatious and embarrassing. As I stated earlier, the judgment of the trial Judge produced on pages 86-105 of the record of appeal is a Certified True copy of the original Judgment which was delivered on the 30/6/2015. In law, to certify a document is to authenticate or verify it in writing. In other words, with the stamp, signature, name and official status of the person who certified the judgment, the law presumes that the document represents exactly what is on the original. That is to say that on the original of the judgment, there is the name and signature of the Judge who wrote and delivered the said judgment. However, if the appellant was indeed serious with his contention that the judgment of the trial Court was not signed by the Judge and not sealed, what he ought to have done was to produce the original judgment as an Exhibit. See Saidu H Ahmed & Ors Vs. CBN (2013) 12 SCM (Pt.2) 115; (2013) 11 NWLR (Pt.1365) 352.
I am therefore of the firm view that the judgment of the trial Court in this case said to have been delivered on 30/6/2015 was duly authenticated, signed and properly dated in compliance with the requirement of the Constitution and the law. The appellant therefore failed totally to prove otherwise. In the circumstance, this issue is resolved against the appellant.
In the final analysis, this appeal is found to be unmeritorious and deserves to be dismissed. It is hereby dismissed. Accordingly, the judgment of the Court below delivered on 17th of July, 2018 which affirmed the conviction and sentence passed on the appellant by the trial Court is affirmed.
Appeal dismissed.
SC.879/2018
