Isaac Sambo Vs The State (1993)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C.

The appellant, who is a legal practitioner resident at Gombe, Gombe Local Government Area of Bauchi State, was in August 1988 arraigned before the High Court of Bauchi State (Bauchi Judicial Division) and charged with committing the offence of rape against a 10 year old girl, one Bilkisu Umaru, contrary to section 283 of the Penal Code.

At the trial, the prosecution called four witnesses – the child and complainant (P.W.1), her sister (P.W.2), the investigating Police Officer (P.W.3), and the Medical Officer who examined her (P.W.4). The appellant neither testified nor called any witnesses. He rested his case on that of the prosecution. After hearing counsel on behalf of the prosecution and the accused in address, the learned trial Judge delivered a considered judgment in which she convicted the appellant of the lesser offence of attempted rape and sentenced him to a term of 6 months imprisonment plus a fine of N1,000.00 or, in the alternative to the fine imposed, an additional sentence of 3 months imprisonment.

The case of the prosecution, briefly, is that the appellant, on the 2nd July, 1987, requested the complainant (P.W.1), who is a neighbour of his, to fetch him water for bathing. When she brought the pail of water to the appellant’s house, he invited her into his room, locked his door, and put on his music set. He then removed the child’s dress, forced her on to his bed and tried unsuccessfully to put his private part (penis) on her private part (vagina). When the child started crying, he unlocked the door of his room and let her go, pleading for her forgiveness so that “his name would not be spoiled”. On getting home, P.W.1 took off her bloodstained pant and washed same. When, later still, the sister (P.W.2) met her crying and asked her what was wrong with her, she told her what the appellant had done to her. On examination of her private part by P.W.2, she found some blood thereon. P.W.2 then made a report to the Police which led to the arrest of the appellant. In the course of investigation, P.W.1 was sent to the General Hospital, Gombe, for examination, and statements were obtained from the appellant by the Police.

In his two statements to the Police, the appellant admitted that he sent P.W.1 who is his neighbour to fetch “bathing water” for him. When she brought same to his room, there was music being played on the radio and he began to dance with her. She however, started crying, stating that she did not like what he was doing to her. He then left her and she departed. At no time did he rape or force himself on her.

Dissatisfied with his conviction and sentence by the High Court, the appellant appealed to the Court of Appeal against same. Briefs were duly filed by the parties, and after hearing the appeal, the court below dismissed same and affirmed the conviction and sentence of the trial High Court. The appellant has appealed again – to this court.

Five issues for determination were set out by the appellant in his brief, as follows:-

“1) Whether the Court of Appeal was right in law and on the facts in holding that there was evidence corroborating the evidence of the P.W.1 to sustain the conviction of the Appellant for attempted rape.

2.) Whether the disparity between the written statements of the P.W.1 and her evidence in court is not such as would render her evidence unreliable and if the answer is in the affirmative whether the Court of Appeal did not violate the Appellant’s right to fair hearing in refusing to consider Appellant’s counsel’s submission on the point.

3.) Whether the Court of Appeal should have confirmed the conviction and sentence passed on the Appellant by the trial Court when the same was based on speculation.

4.) Is it not mandatory for a trial court to conduct the usual preliminary test as to the capability of a child to testify before receiving the child’s evidence under section 182 (1) of the Evidence Act If the answer is in the affirmative, whether the court of appeal should not have quashed the conviction of the Appellant based on the evidence of the P.W.1 which is a child which evidence was received by the trial court without conducting the preliminary test.

5.) Whether the contradiction, inconsistencies and disparities in the totality of the evidence adduced by the prosecution are not such as would warrant a settling aside of the conviction and sentence passed on the appellant by the trial court and affirmed by the Court of Appeal.”

The respondent also set out in his brief five issues for determination, which are framed thus:-

“1. Whether the Court of Appeal was right in law and on the facts in holding that there was evidence corroborating the evidence of the prosecutrix (PW1) to sustain the conviction of the Appellant for attempted rape.