Musa Natsaha V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the decision of the Court of Appeal, Kaduna Division, hereinafter referred to as the lower Court, in appeal No. CA/K/149/C/2012 delivered on 8th January 2013, affirming appellant’s conviction and sentence by the Kano State High Court, hereinafter referred to as the trial Court, for the offence of rape contrary to Section 283 of the Penal Code. A brief summary of the facts on which the appeal revolves is given below.

To prove the offence against the appellant, the prosecution called three witnesses and tendered three exhibits. The three witnesses called by the prosecution are PW1, the prosecutrix, PW2 the victim’s father and PW3, Corporal Faruk Ahmed, the police investigation officer through whom exhibit A, appellant’s extra-judicial confessional statement, exhibit B, the hospital registration card of the prosecutrix and exhibit C, the medical report issued by the hospital after examining the prosecutrix, were tendered. All the exhibits were tendered and admitted without objection

The appellant, without calling any other witness, testified

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on his own behalf.

The trial Court in a considered judgment, dated 30th March 2012, convicted the appellant as charged and sentenced him to a ten year term of imprisonment.

Dissatisfied with the trial Court’s decision, the appellant appealed to the lower Court on a notice filed on 21st May 2015 containing nineteen grounds. The dismissal of his appeal on 8th January 2013 informs the instant appeal to this Court on fifteen grounds filed on 16th January 2013.

At the hearing of the appeal, parties on identifying their respective briefs filed and exchanged earlier, adopted same as their arguments for and against the appeal. The four issues distilled in the appellant’s brief settled by Nureni Jimoh Esq., read:-

“1. Whether the Court of Appeal was right on the conclusion regarding the rules of inconsistency, discrepancy and contradictions in the evidence of the prosecutrix rightly accepted the written statement allegedly written by the accused (Exhibit A) before the police and hold that the evidence of PW1 was sufficiently corroborated in this case. (Grounds II – XI).

2. Whether the lower Court was right to hold that the prosecutrix has

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proved the case of rape against the accused beyond reasonable doubt. (Grounds I, XII & XIV)

3. Whether the lower Court was right to hold that the duty to prove alibi is on the accused person. (Ground XIII) and
4. Whether there was no breach of fair hearing when the lower Court failed to pronounce on the appeal against sentence made by the trial Court against the accused. (Ground XV).”

The similar but more concise and clearer issue formulated at page 5 of the respondents brief read:-

(1) Whether the inconsistency rule is applicable to the case of the appellant.

(2) Whether the prosecution has proved its case beyond reasonable doubt.

(3) Whether the Court below was right to have affirmed the decision of the trial lower Court that the defence of alibi put up by the appellant was belated.

(4) Whether failure of the Court below to make pronouncement on the issue of the sentence of the appellant with hard labour is a breach of fair hearing.

Appellants arguments on his first issue are three pronged. Firstly, it is contended, the evidence of the three prosecution witnesses are inconsistent in

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themselves and contradictory against each other such that no reasonable tribunal would rely on them to convict an accused person. It is glaring from PW1s evidence in chief at page 13 line 3 to 5 and under cross examination at page 14 lines 9 to 14 of the record of appeal that the prosecutrix is not certain as to whether it was his penis or finger that the appellant inserted into her vagina. A conviction under Section 283 of the Penal Code, it is submitted, endures only on proof of penetration of the appellants penis into PW1’s vagina. The absence of clear evidence establishing this fact, argues learned counsel, is fatal to appellant’s conviction.

The testimonies of PW2 and PW3, learned appellants counsel further contends, are not any helpful to the prosecution. The bruises and sperm PW2 testified to have seen in PW1s private part remain unlinked to the appellant. There is no scientific report establishing the fact of the sperm spotted on PW1’s private parts as being the same trace found on a trouser recovered from the house of the appellant and that the very sperm is that of the appellant. Exhibit C, the medical report following

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the doctor’s examination of PW1, only establishes bruises around PW1s private part and the rupture of her hymen. Again, it is argued, the document does not link the appellant with either the bruises and most importantly, the rupture of PW1’s hymen.

Lastly, even though no objection was raised against the admissibility of exhibit A, appellant’s extra judicial confessional statement, it is further argued, appellant’s challenge that the statement was not recorded in a language he understands and that he did not sign the said statement makes the statement suspect and unreliable. Concluding on the 1st issue, learned counsel submits that by Section 209(1) & (3) of the Evidence Act CAP E 14 LFN 2011, the unsworn evidence of PW1, a child, requires corroboration. The lower Court is wrong to have affirmed the decision of the trial Court in breach of this statutory requirement. Relying inter alia on Jegede V. The State 14 NWLR (Pt 733) 264, Abogede v. The State (1996) 5 NWLR (Pt 448) 270 9 SC 1, Asanya v. State (1991) 22 NSCC (Pt. 1) 412 at 421 and Owei v. The State (1985) 4 SC 7 at 27, learned appellant’s counsel urges that the issue be resolved against

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the respondent and the decisions of the two Courts below based on the faulty evidence be set-aside.

On the issue, learned respondent’s counsel submits that learned appellant’s counsel is unable to know the difference between inconsistency and contradiction in the evidence of the prosecution’s witnesses. The inconsistency rule, it is contended, relates to the evidence of a witness in Court which contradicts or is inconsistent with the previous statement of the witness whether sworn or unsworn. None of the previous Statements of the three prosecution witnesses, learned respondent’s counsel submits, is inconsistent with their testimony at trial. Besides, it is submitted, as a fresh issue raised without leave of the Court, the issue of inconsistency and or contradiction, being incompetent, it is urged, be discountenanced.

Further arguing the issue, learned respondent’s counsel submits that PW1, inspite of her tender age, remained resolute in her evidence. The seeming confusion in her evidence under cross exanimation, it is argued, was put aright on re-examination. Relying on the cases of Eke V. State (2011) 3 NWLR (Pt 1235) 589 and Jerry Ikueopenikan v.

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The State (2011) NWLR (Pt. 1221) 449, learned counsel submits that there is nothing contradictory either inter or intra the evidence of the three witnesses to disentitle any Court to rely on this evidence. Even if there are contradictions in the evidence of the witnesses, it is submitted, they are not material to warrant allowing the appeal because of the contradictions. Beyond the testimony of PW1 there is exhibit A, appellant’s statement and exhibits B and C, it is further submitted, both Courts rightly relied on to convict the appellant. Appellant’s contention under the 1st issue being unavailing, learned respondent’s counsel submits, should be discountenanced.

On the 2nd issue, learned appellant’s counsel refers to the decision of this Court in Posu v. The State (2011) ALL FWLR (Pt 565) 234 at 250 and contends that in the instant case the respondent has not proved the offence of rape contrary to Section 283 of the Penal Code. The concurrent findings of the two Courts below, it is submitted, cannot be sustained. Relying further on Afolalu v. State (2010) ALL FWLR (Pt 528) 812 at 828 and The State v. Danjuma (1997) 5 NWLR (Pt. 506) 512, learned counsel

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submits that the respondent whose burden it is to prove all the ingredients of the offence beyond reasonable doubt has not discharged the burden. In particular, it is argued, the respondent who has not established the fact of penetration of appellant’s penis into PW1’s vagina cannot, in law, be held to have established the offence of rape against the appellant. The decision inter-alia, in Ogunbayo v. State (2007) ALL FWLR (Pt 365) 408, Okeyamor v State (2005) 1 NCC 499 and Jegede v. The State (supra), submits learned respondents counsel, entitle this Court to interfere with the perverse findings of the two Courts below. Commending the authorities to the Court, learned counsel urges that the Court resolves the issue in appellants favour and allow the appeal.

In response, learned counsel to the respondent refers to the dicta of Oputa JSC in Mufutau Bakare V. State (1987) 1 NSCC 267 at 272 and Section 282(1) of the Penal Code which defines the offence of rape and submits that all the ingredients of the offence have been proved by the prosecution in the case at hand. The evidence of PW1 is corroborated. The testimony of PW2 and exhibits A and C,

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on the authority of Idris Rabiu V. State (2005) 1 NCC 578, provide the statutory corroboration necessary in establishing appellant’s guilt under Section 283 of the Penal Code. Indeed, exhibit A, the confessional statement of the appellant, notwithstanding appellant’s plea of non est factum, does ground the appellant’s conviction. The most important requirement of the law, admissibility of the document, having been met, nothing disentitles the two Courts from relying on the statement to found his guilt. The decisions in Edhigere v. State (1996) 3 NWLR (Pt 464) 1 and Emmanuel Nwanyebonyi V. State (1994) 5 NWLR (Pt 343) 138 leaned respondent’s counsel submits, clearly supports their position on the corroboration of the testimonies of PW2 and exhibit A provide. Further relying onSolola v. State (2005) ALL FWLR (Pt 269) 1751, which counsel distinguished from Olalekan v. State, (supra) it is submitted that appellant’s guilt has manifestly been established.

On the 3rd issue, learned appellants counsel submits that the two lower Courts are wrong to have relied on exhibit A in situating the appellant at the scene of the rape. The appellant, it is argued, has

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maintained that he neither reads nor write in English language, the language in which exhibit A is recorded. Evidence has not been led, it is further argued, to show that exhibit A was translated and read to the appellant in Hausa language that he understands. The appellant, it is argued, in his evidence in chief did raise the defence timeously. The non consideration of the plea constitutes a breach of his right under Section 30(6) of the 1999 Constitution. Referring the Court to Garba v State (1999) 11 NWLR (Pt 627) 427 at 439, Adisa v. State (1991) 1 NWLR (Pt 168) 490 at 508 and Onyegbu v State (1995) 4 NWLR (Pt 391) 510, learned appellant’s counsel urges that the wrong concurrent findings of the two Courts on appellant’s alibi be set-aside on resolving the issue in appellant’s favour.

On the 3rd issue, learned respondents counsel submits that appellant’s defence of alibi was not investigated because of the insufficient facts he gave the prosecution. The facts which constitute the plea, it is contended, must be given to the prosecution to entitle full investigation into the plea. Appellant’s plea of non est factum, learned respondent’s counsel

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contends, does not render exhibit A inadmissible. It touches on the weight to be attached to it an issue the trial Court rightly determined at the end of trial. The appellant, argues learned respondent’s counsel, must fail in his purported plea of alibi raised in the course of his evidence at trial. Relying to Ikemson v. State (1989) 3 NWLR (Pt 110) 455 and Adio v. State (1986) 3 NWLR (Pt 31) 714, learned counsel submits that the lower Court’s findings on appellant’s alibi which cannot be faulted be affirmed.

On their 4th issue, learned appellant’s counsel submits that appellant’s complaint against the sentence of ten years imposed by the trial Court was not considered by the Court below. Having raised the issue, the appellate Court has the corresponding duty of considering the issue so raised and pronounce on it. Failure to consider the issue raised has occasioned miscarriage of justice. This Court, learned counsel submits, is empowered to reduce the sentence. Reliance is placed on Onyekwulunne V. Ndulue (1997) 7 NWLR 750, Mohammed V. Nigerian Army (1998) 7 NWLR (Pt. 557) 232, Ukwunneyi V. State and Ogidi V. COP (1960) 5 FSC 251 at 255-257.

Further

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relying on The State V. Hasson Audu (1972) 7 NSCC 436 at 437 and Owen v. Eyo (1962) 1 ALL NLR 515 at 528-9 and Adeyeye V. State (1968) ALL NLR 239, learned appellant’s counsel insists that given the ten year imprisonment term with hard labour the trial Court imposed and affirmed by the lower Court a sentence which is unknown to law, the necessity of an intervention by this Court needs no further stress.

For all the lapses cited in the judgments of the two Courts, learned appellant’s urges that the appeal be allowed.

Responding on the 4th issue, learned respondent’s counsel submits that the lower Court only has a duty of considering and pronouncing only on issues properly raised before it. In the case at hand the lower Court is under no obligation to consider other issues posed apart from the proof of appellant’s guilt beyond reasonable doubt The non consideration of the sentence passed on the appellant by the lower Court, it is submitted, is a mere irregularity which does not vitiate findings of both Courts below. Referring to Onochie V. Odogolu (2006) ALL FWLR (Pt 317) 544 and 7up Bottling Co Ltd & 2 Ors v. Abiola & Sons Bottling Co (2001) 13 NWLR (Pt

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730) 469, learned counsel to the respondent urges that we consider the lapse as an irregularity without more.

On the whole, the appeal, he prays, be dismissed.

It must outrightly be observed that the four issues the appellant distilled from his fifteen grounds of appeal are prolix. Indeed most of them are unnecessary and uncalled for. This Court has repeatedly frowned at this practice and still views it as poor advocacy. The success of an appeal, the Court has held in very many of its decisions, neither depends on the number or grounds of appeal nor the issues formulated from the grounds.

In addition to the competence of the two, their substantiality is even more overriding. see G.K.F. Investment Nigeria Ltd V. Nigeria Communications Plc (2009) LPELR-7294 (SC) and Kupoluyi v. Phillips (2001) 13 NWLR (Pt 731) 736.

The instant appeal questions the lower Court’s affirmation of the trial Court’s findings of fact, impression of the witnesses and the credibility attached to the witnesses, the Court’s entire evaluation of evidence leading to the conviction and imposition of and the nature of prison term on the appellant. Certainly, the appellant

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does not require the fifteen grounds of appeal and the four issues to make bare his grudges and succeed in the appeal. See Sossa v. Fokpo (2001) 1 NWLR (Pt 693) 16 and Ogbuanyinya & 3 Ors v Okudo & Ors (No. 2) (1990) 4 NWLR (Pt 146) 551 at 556.

There are indeed many concessions that cannot be denied learned appellant’s counsel. I entirely agree with him, and learned respondent’s counsel does not begrudge the point, that to establish the offence of rape for which the appellant is convicted, the four ingredients to be proved are:-

(i) That the appellant intentionally had sexual intercourse with PW1, the prosecutrix.

(ii) That the sexual intercourse was without the consent of PW1.

(iii) That PW1, at the time of the sexual intercourse, was not appellants wife and

(iv) That there was penetration. See Affor Lucky v. The State (2016) LPELR-40541 (SC), POSU & Anor v. The State (supra) and Kazeem Popoola v. The State (2013) LPELR-20973 (SC).

The aggregate implication of these ingredients is that the appellant is only guilty of the offence of rape if the concurrent findings to that effect by the two Courts below are based

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on evidence that the appellant knowingly had sexual intercourse with PW1, without her consent. From the record of this appeal, PW1, appellant’s victim, was three years at the time of the rape which fact necessitates reminding the learned appellant’s counsel the import of the clear and unambiguous words that constitute Section 39(c) and more particularly Section 282(1)(e) of the Penal Code. The Sections provide:-

“39 (c) A consent is not such a consent as it intended by any Section of this Penal Code, if the consent is given-

(c) by a person who is under fourteen years of age.

“282(1) A man is said to commit rape who, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstances-

(e) with or without her consent, when she is under fourteen years of age or of unsound mind.”

From the foregoing, PW1 is incapable of giving valid consent to any act of sexual intercourse under scrutiny pursuant to Section 283 of the Penal Code. It is sufficient under the law to convict the appellant on evidence that establishes sexual intercourse only between the two. Proof of PW1’s consent being

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irrelevant is unnecessary. The finding of the trial Court at page 76 of the record and the lower Court’s affirmation of the finding on the point at page 167 remain unassailable.

The appellants added vehemence is that the penetration of his penis into PW1’s vagina, easily the most important ingredient of the offence of rape, has not been established and the findings of the two Courts on that fact, therefore, is perverse. Furthermore, the evidence of PW1 on the vital ingredient of the offence if at all extant, the appellant contends, does not constitute sufficient proof of the crucial ingredient. Her testimony requires corroboration. Appellant’s extra judicial confessional statement cannot, on the face of his plea of non-est-factum, it is further submitted, provide the required corroboration.

Again, to some extent, the appellant is right. Section 209 (3) truly provides as follows:-

“209 (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

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testimony implicating the defendant.” (Underlining supplied tor emphasis)

The contention of learned appellant’s counsel is not only that the foregoing provision has made corroboration to PW1’s evidence in the matter a necessity. He further argues that PW1’s ambivalent evidence on the fact of the penetration of her vagina by appellant’s penis is suspect, unreliable and unavailing to the respondent in proof of the most relevant ingredient of rape. To what extent are these postulations correct

The relevant portion of PW1’s testimony is at pages 13-15 of the record of appeal. In her evidence in chief PW1 stated as follows:-

“I know the accused person Musa Natasha. I can’t recall the date when this incident happened but I know what happened to me. The accused raped me. On that day, the accused saw me outside so he called me. He asked me to go and buy Kosai (been cake) for him. It was in the morning in his shop at bakin kasuwa (market frontage). Then when I bought the been cake and I brought it to him at his shop so the accused gave me one been cake. I ate the been cake. I know the accused even before the incident as he is our neighbour. Between his

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house and mine are 3 houses then often I ate the been cake, the accused then removed my clothes and pant. Then he laid me down and laid on top of me. Then he put his penis inside my vagina. I was crying as I felt pains so after he left me and he put something mucus on my vagina I was still crying so I went home and I told my father. I told my father what the accused Musa Natsaha did to me in his shop. So my father reported the matter to the police. The police examined me and saw what happened to me. So I was taken to hospital by the police. At the hospital I was examined by a doctor and I was cleaned up and treated.”

Under cross examination PW1 at page 14 of the record stated thus:-

“The accused laid on top of me and put either his finger or penis. I don’t know the difference between his fingers and his penis.”

Being re-examined, PW1 testified as follows:-

“He inserted his penis into my vagina not his finger.”

On the foregoing evidence, the trial Court proceeded at pages 75-76 of the record as follows:-

“The purpose of re-examination is for the witness to clear any ambiguity that might have arisen during

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cross-examination,

……… However in spite of the tender years of PW1 (which was 7 years) at the time of her testimony, PW1 was sharp, alert, intelligent and answers all the questions put to her by the defence Counsel rationally and inspite of the rigorous cross examination and attempt to confuse her by the defence, her evidence was direct, credible and of probative value. PW1 was categorical that the accused inserted his penis into her vagina and she felt pains therefore she cried all the way to her house.”

It must be restated that the evaluation of evidence and assumption of probative value to such evidence are the preserve of the trial Court that had the opportunity of hearing the evidence and the demeanour of the witnesses. The lower Court and indeed this Court interferes only where an appellant shows clearly that the trial Court did not, in the discharge of its primary duty of evaluating the evidence it received, bring to bear the advantage it had of seeing and assessing the witnesses. Having not done that in the instant case, appellant’s complaints against the inference of the two Courts on this particular issue accordingly fails. See

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Mogaji V. Odofin (1978) 4 SC 1, Eseme Eyibo V. Mr. Dan Abia & Ors (2012) LPELR-20607 (SC) and Dakat V. Dashe (1997) 12 NWLR (Pt 531) 46.

In what evidence if any, It may now be enquired, did the lower Court find corroboration to the testimony of PW1 The answer to this question starts with the finding of the trial Court in that regard at pages 77-83 of the record inter-alia as follows:.

“The evidence of PW1 was corroborated by the testimony of PW2 who has stated that when PW1 told him what happened to her he physically examined her and saw sperm deposited all over her vagina- PW3 also stated that the accused gave a confessional statement which he recorded …he took the accused to the scene of the crime (where) he recovered a trouser with fresh sperms on it which he took and registered it as an exhibit.

The Court continued thus:-

“The evidence of PW1 was further corroborated by the confessional statement of the accused exhibit A. In exhibit A the accused narrated the same story of calling PW1 a 3 years (sic) old and giving her been cake thereafter had carnal knowledge of her the evidence of PW1 was further corroborated

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by exhibit B and C…. Exhibit B and C clearly stated that PW1 was raped.”

The lower Courts affirmation of the foregoing trial Courts finding inter-alia at page 181 of the record reads:

“The learned trial judge was right when she held that exhibits A, B and C are corroborative evidence of the testimony of PW1 on the issue of penetration…….

The evidence of the appellant that he gave N6,000 to the police so that they could release him is corroborative evidence of PW1 that he, indeed, committed the offence of rape against PW1 and I so hold ”

Now, let me restate what a corroborative evidence is. It is evidence independent of that which it strengthens and discloses not only the commission of an offence but equally links or tends to link the accused with the commission of the offence. It is, put differently, evidence which confirms in some material particular not only that the crime has been committed but, addedly, that it is the accused who committed it.

Corroborative evidence may be direct or circumstantial. In whatever form it comes, the Court must ensure that the corroborating evidence is not only independent of the main

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evidence it seeks to corroborate but also supports the main evidence by rendering the story of the latter implicating the accused more probable in some material particular. See Omisade & Ors v. The Queen (1964) 1 ALL NLR 233 at 253, Okabichi v. State (1975) 3 SC, Mbele v. State (1990) 4 NWLR (Pt 145) 484, and The State v. James Gwongwan (2015) LPELR- 24837 (SC).

In Edwin Ezigbo v. The State (2012) LPELR-7855 (SC). This Court per Onnoghen JSC (as he then was now CJN) held as follows:

“Corroboration in respect of the offence of rape is evidence which tends to show that the story of the prosecutrix that the accused committed the crime is true.”

In the instant case the concurrent findings of the two Courts below that the evidence of PW2 and PW3 and more particularly exhibit A, the extra judicial confessional statement of the appellant, exhibits B and C the hospital registration card and medical report of PW1, the prosecutrix, constitute such corroboration cannot be faulted. I equally agree with learned respondent’s counsel that neither the testimonies of the witnesses nor the documentary evidence are inconsistent in themselves or contradictory to any

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evidence outside their respective beings. Appellant’s further claim that the two Courts are wrong in their findings on the alibi the appellant raised, given exhibit A, his confession that situated him at the scene and time of the offence for which he is convicted, equally crumbles. That apart, as rightly found by the two Courts, the appellant neither raised the defence timeously nor furnished the particulars of those he said he was with at the farm at the time relevant to the rape he committed. In any event, the defence of alibi crumbles in the face of stronger evidence which, in the case at hand, PW1’s testimony and exhibit A, appellant confessional statement are. SeeObiode V, The State (1970) 1 ALL NLR 35, Chukwu V. State (1996) 7 NWLR (Pt 463) 686, Ani V. State (2009) 14 NWLR (Pt 1168) 443 and Alhaji Musa Sani V. The State (2015) LPELR-24818 (SC).

Finally, learned appellant counsel’s submission that the reliance of the two Courts on exhibit A, appellant’s confessional statement inspite of his plea of non-est factum has occasioned miscarriage of justice cannot be taken seriously. Learned counsel has conceded to and the record of appeal has disclosed

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the fact that exhibit A on being tendered, was admitted in evidence without any objection by the appellant who was represented by counsel. The test for the admissibility of any evidence remains its relevance to the issue at hand. See ACB Ltd v. Gwagwada (1994) 5 NWLR (Pt 342) 25 and Dr Imoro Kubor and Anor V. Hon. Seriake Henry Dickson & Ors (2012) LPELR-9817 (SC).

In law, it must be accepted, a clear distinction exist between the question whether a particular evidence is admissible and the question of its probative value or the weight to be attached to it. The fact that evidence, oral or documentary, is admissible does not mean that it has any probative value or weight at all. But once it is found to be of value the Court may rely on the evidence to arrive at an enduring decision. See Gbafe V. Gbafe (1996) 6 NWLR (pt 455) 417.

At pages 176 – 177 of the record of appeal, the lower Court held in relation to appellant’s plea of non est factum inter-alia as follow:,

“On the issue of the statement, exhibit A, it is the contention of the appellant that he did not make the statement because learned counsel for him had raised the defence of non est

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factum when the statement was being tendered in evidence

Thereafter the statement was admitted in evidence and marked as exhibit A. The appellant did not say anything in elaboration of his plea of non est factum. In effect, exhibit A was admitted in evidence without objection Learned counsel did not offer an explanation when he pleaded non est factum to enable both the prosecution and the trial Court know what the defence was up to. It looks like an attempt to spring a surprise. When the appellant gave evidence on oath, he did not deny making exhibit A. All he said on his statement was that the police took his statement and when confronted by his counsel with exhibit A, he said

I only know the Arabic alphabets. I cant read the English letters in exhibit A

….. This has not contradicted the evidence of PW3 who testified to the effect that the appellant signed exhibit A by writing his name in Arabic. There is nothing in the testimony of the appellant suggested of the plea of non est factum. This plea appellant’s counsel in respect of which the appellant was either not previously or not properly

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tutored…………. since the submission of counsel is not evidence, I hold that the appellant made a statement to the police and since he identified the ‘Arabic alphabets’ which PW3 said he had inscribed, I believe that the statement is not other than exhibit A (Underlining supplied for emphasis)

I cannot agree more with the lower Courts foregoing findings on the issue. I am only to add that even in the domain of civil litigation where the plea of non est factum appears to hold more sway, the law remains sacrosanct that in the absence of fraud or duress the signature of a person on a document is evidence of the fact that he is either the author of the content of the document above his signature or that the contents were brought to his attention before appending his signature. The application of these principles would have left the appellant in the quandary anyway. See Yadia Nigeria Ltd v. Great Nigeria Insurance Company Ltd (2001) 11 NWLR (pt 725) 529.

Practitioners must be reminded of this Courts stand on instances such as in the instant case when in Shurumo V, The State (2001) 196 LRCN 199 it opined thus:-

“When

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a counsel stands by and allows exhibits to sail smoothly through to become evidence without an eyelid, then it becomes obvious that counsel is comfortable with the evidence without an eyelid, then it becomes obvious that the counsel is comfortable with the evidence and see no reason why he should challenge its admission.”

And that in Emoga v. The State (1997) 7 SCNJ 578 the Court per Onu JSC had also said:

“It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a freeman simply because he has a change of mind. The whole trial will be a mockery.-……. It would be dangerous to apply the principle of extra judicial confession of the accused person as it would open a flood gate of retracing of all statements made by accused persons before the police officer ” (Underlining supplied for emphasis).

In the instant case, therefore, it does not lie in the mouth of learned appellants counsel who has represented the appellant all through his sojourn, and allowed Exhibit A to be admitted in evidence without objection, to now say that the statement be discarded value.

All that I have so

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far tried to say is that the respondent herein has discharged the burden the law places on it to establish the charge against the appellant beyond reasonable as same is devoid of any Probative doubt. The two Courts below are right to have so found and accordingly convicted the appellant as charged. I find no feature in the concurrent findings of the two Courts that vitiates their decisions. Not even the complaint on the sentence imposed on the appellant that has not been demonstrated, by this appeal, to have occasioned a miscarriage of justice.

In sum, the appeal is unmeritorious. I dismiss same in further affirming his conviction and sentence by the lower Court.

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