Inspector Dantalle Mohammed V. Kano State (2018)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellant herein, and five other persons, three of whom were reportedly at large, were charged with the offences of Conspiracy, Abduction and Rape, punishable under Sections 97 (1); 273 and 283 of the Penal Code, respectively.

Sequel to the not-guilty plea of the appellant, the matter went to trial. The respondent’s case was anchored on the testimonies of five witnesses, including the prosecutrix, Hindatu Sani, who testified as the PW5. The appellant’s attempt to scuttle his trial, through his no case Submission, having failed, he put up his defence. He was DW4.

Dissatisfied with the judgement of the lower Court, which affirmed the trial Court’s conviction of, and sentence on him, he has approached this Court entreating it to determine the narrow question “whether the testimony of PW5 is sufficiently corroborated by the testimony of other witnesses” The respondent adopted the said lone issue. Hence, the lone issue for the determination of this appeal is the question:

Whether the testimony of PW5 is sufficiently corroborated by the testimony of other witnesses

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ARGUMENTS ON THE ISSUE

APPELLANT’S SUBMISSIONS

At the hearing of this appeal on December 14, 2017, Henry Akunebu, learned counsel for the appellant, adopted and relied on the appellants brief of argument filed on November 6, 2015. In the said brief, an outline of the case was presented, starting with an overview of the testimony of PW5.

PW5, it was pointed out, testified that she was coming on a motorcycle from Unguwa Uku at 9pm. At Kofar Nassarawa roundabout, they saw the first and second accused persons beside their police vehicle. The second accused person was the appellant. At the instance of the motorcyclist, the PW5 alighted from the motorcycle and went off. The first accused person took the motorcycle and asked the PW5 to join the police vehicle to take her home.

Despite all protests, the first accused person took the PW5 in their vehicle to the Kwali Police Station housing Kwali Police Barracks. At the room, the first accused person asked her to sit down. As she sat down, he (the first accused person) locked her in the room. He later entreated her to eat the indomie which he bought. Her refusal to eat the said

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food prompted the first accused person’s threat to her.

Fully armed with a gun, he [the first accused person] slapped her, removed her veil, tearing her blouse in the process, and ravished her while she struggled with him. The ravishment resulted in her bleeding and stains on her body. The following morning, the first accused person called the third accused person who joined them in the room.

Both accused persons mocked her, locked her up in the room and, equally, locked up the main entrance and left. In the evening, the first accused person returned with one Aisha who gave her cloth to the PW5 whose cloth was stained. She (PW5) bathed with water which Aisha supplied to her. After her bath at Aishas room, the first accused person brought her back to their initial room, locked the room up and ravished her [PW5] again while she bled.

Both accused persons [first and second] took her away in a vehicle to Glo Service Station. They left her with one Shehu who, equally, ravished her. In the morning, the first accused person came and took her away to the initial room where he, once more, ravished her while she bled and stained the cloth which Aisha gave her.

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After multiple forcible sexual engagements with the accused persons and one Pele at different places, they took her in a Police vehicle to a political party office behind Jifatu stores. The accused persons later took the PW5 to Kwali Police Station. Later, fire service men took her to the hospital. The parents, subsequently, reported the matter to the Kwali Police Station.

Counsel, citing Iko v. State [2005] Vol 1 NCC 499, 501, submitted that the evidence of PW5 was suspect, incredible and improbable and so cannot be corroborated, Iko v. State (supra). He maintained that the said testimony was replete with improbabilities, Amodu v. State (2012) 2 NWLR (Pt 1177) 47, 57.

He pointed out that, at page 22 of the record, PW4 stated that the PW5 made a voluntary statement which was withheld never tendered, Goubada v. State [2005] Vol 1 NCC 255, 258. He therefore submitted that the testimony of PW5 was incredible, weak and unreliable and could not be corroborated, Iko v. State (supra). He maintained that neither the PW1’s testimony nor the PW2’s additional evidence, Exhibit D2 could have corroborated the evidence of the PW5.<br< p=””

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Placing reliance on the Court of Appeal decision in Tsoho v. State (1986) 4 NWLR (sic) 710, he submitted that the totality of the evidence of the accused person must be considered for what it is worth; however, in his submission, this was not done in the instant case. He canvassed the view that where there is an iota of doubt as to whether an offence was committed, the doubt should be resolved in favour of the accused person, Isah v. State [2008] 3 NCC 636; Onubogu and Anor v. State [(1974) 1 All NLR 5.

In his submission, the facts contained in the appellant’s additional statement do not lead conclusively to his guilt and do not eliminate other possibilities, Shehu v. State (2010) 3 MJSC (pt. 11) 74, 78 and therefore could not amount to circumstantial evidence, Shehu v. State (supra).

Learned counsel maintained that where rape is denied, it is only medical evidence that could corroborate, Posu v. State [2011] 3 NWLR (pt. 1234) 393, 398. He maintained that the medical evidence, Exhibit A, was wrongly admitted without the maker being called in evidence and without proper foundation laid in the absence of the maker, Section 50, Evidence Act,

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2011.

Accordingly, he insisted that, since the maker of Exhibit A did not appear in Court, his absence ought to have been satisfactorily explained by a letter from his head of department, or telegram or a Gazette. In the absence of these, Exhibit A was in his submission, admitted without foundation and should be expunged, Dada v. Bankole [2008] 3 MJSC 1, 6. Above all, he pointed out that since, Exhibit A was an expert report, the expert ought to have appeared in Court for cross-examination, Idundun V. Okumagba SC/309/74 (SC).

He canvassed the view that a medical report simpliciter cannot be cross examined, Idundun v. Okumagba (supra). He urged the Court to expunge Exhibit A. He further contended that, having been made about eight weeks after the incident, the said Exhibit A was exposed to other possibilities, for instance, the chance of PW5 having sexual intercourse with other men other than the accused person.

He pointed out that the Prosecution’s case was devoid of any corroborative evidence. He explained that Aisha was not called in evidence; the cloth she gave to the PW5 neither had any blood stain nor sperm stain and the cloth the PW5 wore

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at first instance was never tendered, Goubadia v. State (supra). He invited the Court to hold that the case of the Prosecution was not corroborated, Oden v. FRN (2005) 1 NCC 303, 308; Okeke v. State [1995] 4 NWLR (pt. 392) 676; Akinyemi v. State (1999) 6 NWLR (pt. 607) 449. He urged the Court to allow the appeal.

RESPONDENT’S ARGUMENTS

On his part, learned counsel for the respondent, Mukhtar Sani Daneji, adopted his brief filed on January 29, 2016, although, deemed properly filed on January 11, 2017. He submitted that the evidence of PW5 was sufficiently corroborated. He contended that, in respect of rape cases, corroboration is evidence which tends to show that the victim’s story is true that the accused person committed the crime.

He further pointed out that corroboration need not consist of direct evidence that the accused person committed the crime. He pointed out that the victim, PW5 testified at a time when she was sixteen years old and on oath; hence, her evidence needed no corroboration, Dagayya v. State [2006] 7 NWLR (pt. 980) 637. Worse still, corroboration is neither even needed nor is a requirement of the law in rape cases but only a matter of practice,

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Habibu Musa v. State (2013) LPELR – 19932 (SC).

On the contention that the Prosecution’s testimonies were riddled with contradictions, he referred to Akpan v. State (1991) 3 NWLR (pt. 5) (sic); Ogoala v. State [1991] 3 NWLR (pt. 5) 175; citing page 380 of the record for the views of the lower Court on this question of contradictions. He referred to pages 57 -58 of the record and contended that the Prosecution had no duty to call all the witnesses.

Citing page 411 of the record, he pointed out that PW5 said she was threatened by the first accused person, drawing attention to the finding at page 251 – 252 of the record that the testimony of the PW5 was not discredited under cross examination and to the finding of the lower Court at page 375 of the record that the evidence adduced which establishes the ingredients of rape was relied upon by the learned trial Judge. He distinguished Amodu v. State (supra) an armed robbery case and Goubadia v. State (supra).

Relying on Criminal procedure (Application for leave to prefer a charge in the High Court) Rules, 1979, the Prosecution was under no obligation to give the appellant the victim’s statement.

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Above all, the said victim testified and was cross examined. He pointed out that the lower Courts merely treated the additional statement of the appellant as corroborative evidence and not confessional statement, pages 258 – 259 of the record. Referring to pages 375 – 376 of the record, he pointed out neither of the lower Courts neglected the oral testimony of the appellant.

He maintained that the medical report, Exhibit A, was admissible evidence. He, the appellant, did not request for the appearance of the medical doctor who issued it, Nwachukwu v. State (2007) 17 NWLR (pt. 1062). He disclaimed the submission on the existence of contradictions in the testimonies of the Prosecution, page 381 of the record; Dibie v. State (2007) LPELR (sic) (SC). He finally submitted that concurrent findings are not lightly toyed with if they are not perverse; the appellant failed to adduce evidence of the perversity of the testimonies.

RESOLUTION OF THE ISSUE

At page 375 of the record, the lower Court responded thus to the submission that there was no Corroboration of the evidence of PW5 and thus the evidence cannot ground conviction:

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The learned trial Judge considered the necessity for corroboration, and on pages 258 – 260, reviewed and evaluated the evidence of the witnesses and found that the evidence of the PW5 has been sufficiently corroborated by the evidence of the PW1, the PW2 and the medical report tendered as Exhibit A and pieces of admission by the appellant himself. It has been held that the corroborative evidence need not consist of direct evidence that the accused person committed the offence nor does it amount to a confirmation of the whole evidence of the witness, provided that it corroborates the evidence in some respect material to the charge in issue, Edet Okon Iko v. State (2001) 7 SCNJ 391. I am in agreement with the learned trial Judge that the evidence of PW5 was sufficiently corroborated.

Dealing with the question of corroboration, the learned trial Judge had proceeded thus:

The evidence of PW1 corroborated the evidence of PW5, the victim when she told the Court that the first and the second accused persons took her to an office near Jifatu stores where the second accused person forcefully had sexual intercourse with her. When he finished, they left her with Haruna (PW1) to buy

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her drugs which they later brought and took her back to Kwali Police Barrack where she was left in a room under lock by the first accused person. The second accused person who testified as Dw4 also admitted he collected the key from Haruna (PW1). He admitted her food he left with the Tea seller. He denied having sexual intercourse with her. In his statement, Exhibit D2, the second accused said ‘that it was true I took Hindatu Sani, the complainant in this case, to political party office behind Jifatu store, Zaria Road, Kano, I took her in our patrol vehicle and on arrival I told the man in charge of the place, one Haruna, to open the office for us. Then I enter (sic) into the house together with Hindatu and sat on the chair. The first accused (person) also in his confessional statement, Exhibit C2, stated ‘Our Inspector, one Talle Mohammad (second accused) took her to Jifatu side to a quarters located within the area.

All these facts have shown a corroboration of the victims (PW5) (sic) evidence by evidence of PW1, the first accused and the second accused

The evidence of PW2 also corroborating the evidence

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of PW5 when she said the first accused person kept her in Kwalli Police Barracks for about two weeks having sexual intercourse with her uncountable times without her consent

Counsel for the first accused person also submitted that in an allegation of rape there must be corroboration, that is lacking in this case. Even if as the counsel wants the Court to believe that there is no corroboration, which I hold there is, however, in Ogunbayo v. State (supra) it was held that it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. There is no statute foisting on the Prosecution a duty to provide evidence of corroboration before an accused person can be convicted for the offence of rape.

[pages 258 – 261; italics supplied for emphasis]

Learned counsel for the appellant stridently sought to impugn the above finding of the lower Court, which affirmed the finding and conclusion of the trial Court. The question is whether there is any merit in his submissions. As shown earlier in this judgement, the sole issue is woven around this issue of corroboration.

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The simple answer is that there is no merit therein.

My noble Lords, in Isa v. The State (2016) LPELR 40011 (SC), I dealt with this issue of corroboration in rape cases. Permit me therefore to refer to and adopt my views thereon, as part of my leading judgement in this case. In the said case, I observed that:

Now, prior to the amendment of Nigeria’s Evidence Act in 2011, scholars and other writers had greeted, with forceful disapprobation, the practice which required corroboration of the evidence of a rape victim, see, for example, Justice Ngozi Oji, “Proof of Sexual Offences in Nigeria,” in UNIZIK Law Journal, Vol 7, No 1, 2010, 302 326; Y. Osinbajo, Cases and Materials on Nigerian Law of Evidence (Lagos Macmillan Nigeria Publishers Ltd, 1992) 326; T. A. Aguda, Criminal Law and Procedure of the Six Southern States of Nigeria, 756-757; O. S. Oyelede, “Corroboration”, in Akintola and Adedeji (eds), Nigerian Law of Evidence: A Book of Readings (Ibadan: University of Ibadan Press, 2006) 116 etc.

Their well-taken reservations notwithstanding Courts still clung to the practice of requiring corroboration of the evidence of such

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a prosecutrix, Okpanefe v. State [1969] ANLR 411; Igbine v. State (1997) 9 NWLR (pt. 519) 101; Iko v. State (2001) 14 NWLR (pt. 732) 221; Afolalu v. State [2010] 16 NWLR (pt. 1220) 584; Ndidi v. State (2005) 17 NWLR (pt. 953) 17. In passing, we acknowledge the beneficial provision of Section 204 of the Evidence Act, 2011 which has effectively bowdlerised sexual offences from the corroboration requirement.

Interestingly, in Habibu Musa v. State (2013) LPELR -19932 (SC), this Court noted, most perspicaciously, that:

“it has to be restated that in offences of a sexual nature, it is very desirable that the evidence of the prosecutrix or complaint (sic, complainant) is buttressed by other pieces of evidence implicating the accused in a substantial way. This does not detract from the fact that the Court is not hindered from convicting an accused on the uncoroborated evidence of the complainant.

In the use of corroborative evidence however little or slight it may be there is no rule as to what a corroborative piece of evidence is and how it can be applied. This is because the trial judge is best suited to make use of the evidence being well situated

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and having the opportunity and singular privilege of hearing first hand the witnesses, considering their demeanour including that of the appellant. Also, where there was enough on ground from which the trial judge can reach a decision then there is no need to warn itself of the danger of acting on the uncorroborated evidence of the prosecutrix. That in this case any way it is not necessary since there was corroborative evidence in the confessional statement, the medical report and even the other prosecution witnesses’ testimonies which had a flow showing the credibility and veracity in those testimonies. Therefore, in terms of corroboration, there were many to solidify the evidence of prosecutrix.

(italics supplied)

The Court cited, with approval, the decision in Ogunbayo v. The State (2007) 8 NWLR (pt. 1035) 157. In that case (Ogunbayo v. State), Tobi JSC, painstakingly, surveyed the chequered trajectory of rape jurisprudence. His Lordship espoused the beneficial view in Iko v. The State (2001) 14 NWLR (pt. 732) 221 that it was not the law that an accused person in a charge of rape could not be convicted on the uncorroborated evidence of the prosecuting.

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In His Lordship’s esteemed view, the proper direction was that it was unsafe to convict on the uncorroborated evidence of the prosecuting. He, first, observed that:

There are two dimensions to the issue of corroboration as decided by the Courts. First, the Courts hold that rape is not an offence in which corroboration is required by law and procedure. But the Court should warn itself of the danger of convicting an accused on rape in uncorroborated evidence. Second, an accused person cannot be convicted unless the evidence of the prosecutrix is corroborated.

I take the case law in that order. In The State v. Ogwudiegwu (1968) NMLR 117, it was held that the offence of rape, in order to secure a conviction, corroboration of the evidence of the complainant implicating the accused is not essential, but a Judge must warn himself of the risk of convicting on the uncorroborated evidence of the complainant.

In Okpanefe v. The State (1969) 1 All NLR 420, it was held that by Section 178 (5) of the Evidence Act, the Court cannot convict an accused on a charge of rape without corroboration, and in this regard an early report of the

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commission of the offence is not tantamount to corroboration. Similarly, in Sambo v. The State (1993) 6 NWLR (pt. 300) 399, this Court held … that it is the law that before the prosecution can secure conviction for the offence of rape, the evidence of the prosecuting (the victim of the rape) must be corroborated in some material particular that sexual intercourse did take place and that it was without her consent.

It was also held that a piece of evidence offered as corroboration for the offence of rape must be (a) cogent, compelling, and unequivocal as to show without more that the accused committed the offence charged;

(b) an independent evidence which connects the accused with the offence charged; and (c) evidence that implicates the accused in the commission of the offence charged. See also Upahar v. State (2003) 6 NWLR (pt. 816) 230.

The eminent jurist pointed out most insightfully that:

In Iko v. The State (2001) 14 NWLR (pt. 732) 221 in 2001, eight years after the decision in Sambo, it was held that it is not the rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the

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prosecutrix. The proper direction is that it is not safe to convict on the uncorroborated evidence of the prosecutrix. The Court may, after paying due attention to the warning, nevertheless convict the accused person if it is satisfied with the truth of her evidence. This Court also held that the fact that the prosecutrix says that an accused inserted his penis into her vagina is not ipso facto sufficient proof of penetration in the absence of corroboration. Let me take here the ‘warning business’ that the appellate Courts have given to the trial Judge.

[Italics supplied for emphasis]

His Lordship turned to the justification of the English practice on this matter (that was before the amendment of the law in England). He explained that:

In England where the principle emerged and is applicable, the trial by jury is in force. In view of the fact that the jury convicts, the procedure is that the Judge should warn the Jury of the danger of convicting on the uncorroborated evidence of the complainant. Is that really necessary in Nigeria where the Jury System is no more What is the practical effect of the law expecting the trial Judge to warn himself

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of the danger of convicting without corroboration If he does not warn himself in reality and writes down in his judgment that he did, how useful is that in the entire truth searching process Is our adjectival law not pretentious here And can law afford to be pretentious

He advanced reasons why the corroboration requirement was unnecessary. Listen to His Lordship’s incisive reasoning on this matter:

I am not comfortable with the case law that corroboration is necessary to secure conviction of the offence of rape. This is because I see no statute foisting on the prosecution evidence of corroboration before convicting an accused. Section 350 of the Criminal Code Act, Cap. 77 Laws of the Federation of Nigeria, 1990 which is similar to the States Criminal Codes, does not provide that evidence of corroboration is necessary for conviction. And the Criminal Code specifically provides for offences where corroboration is necessary. Rape is not one of such. The above apart, neither the Evidence Act nor the Criminal Procedure Act or Code provides for corroboration in the offence of rape. I therefore ask, where did we get that law

The eminent Jurist

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advanced clues as to the materials from which corroboration could be gleaned. In his view:

…If our adjectival law requires corroboration (a point I am not prepared to concede), then corroboration could be deduced from inter alia, the denials of the accused, the last opportunity the accused had to commit the offence, medical evidence of the examination of the prosecutrix confirming the allegation of recent forcible coitus and the existence of recent semen in the vagina of the prosecuting directly traced or traceable to the accused.

(Italics supplied)

The Court further held that:

…it has to be restated that in offences of a sexual nature, it is very desirable that the evidence of the prosecutrix or complainant is buttressed by other pieces of evidence implicating the accused in a substantial way. This does not detract from the fact that the Court is not hindered from convicting an accused on the uncorroborated evidence of the complainant.

In the use of corroborative evidence however little or slight it may be there is no rule as to what a corroborative piece of evidence is and how it can be applied. This is because the trial judge

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is best suited to make use of the evidence being well situated and having the opportunity and singular privilege of hearing first hand the witnesses, considering their demeanor including that of the appellant. Also, where there was enough on ground from which the trial judge can reach a decision then there is no need to warn itself of the danger of acting on the uncorroborated evidence of the prosecutrix. That in this case any way it is not necessary since there was corroborative evidence in the confessional statement, the medical report and even the other prosecution witnesses’ testimonies which had a flow showing the credibility and veracity in those testimonies. Therefore, in terms of corroboration, there were many to solidify the evidence of prosecutrix. I rely on Ogunbayo v. The State (2007) 8 NWLR (pt. 1035) 157;

[Italics supplied for emphasis]

From the above excerpts of the judgement of the trial Court duly affirmed by the lower Court. I do not entertain any doubt that the lower Courts were on firm footings in their findings and conclusion. As shown above, even prior to the amendment of the Evidence Act in 2011, the liberal posture of

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this Court was that it was not the rule of law that an accused person in a charge of rape could not be convicted on the uncorroborated evidence of the prosecutrix, Shuaibu v. State (supra); Iko v. State (supra); Ogunbayo v. State (supra); Habibu v. State (supra) etc.

In the circumstance, I endorse the concurrent findings of the lower Court on the sole issue of corroboration presented for the determination of this appeal. There is no merit in the agitation of the appellant’s counsel. Accordingly, I enter an order dismissing this appeal. I hereby affirm the judgement; conviction of, and sentence on the appellant.

Appeal dismissed.

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SC.801/2015