Kazeem Popoola V. State (2013)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan Division wherein the Appellant appealed against the conviction and sentence on a charge of Rape contrary to Section 357 and punishable under Section 358 of the Criminal Code Law, Laws of Ogun State of Nigeria 1978.

The Appellant was arraigned before the trial Court on 15th day of December, 2005 for the offence of rape. He was alleged to have raped the Prosecutrix, Bukola Adebajo, a secondary school girl within the school farm on or about the 29th day of January 2004. The Appellant pleaded “not guilty” to the charge. The Prosecution called four witnesses and tendered two exhibits 1 – 1A, the Yoruba and English version of the Appellant’s statement and Exhibit 2, the Medical Report. The Appellant did not testify but called two witnesses who gave evidence on his behalf.

At the end of the trial the learned trial Judge, Lokulo-Sodipe, J. (as he then was) found the Appellant guilty and sentenced him to a term of five years imprisonment with hard labour.

Dissatisfied, the Appellant proceeded to the Court of Appeal which dismissed his appeal, hence this process before the Supreme Court on appeal.

BACKGROUND FACTS

The facts of this case from the evidence adduced by the Prosecution revealed that, on the 29th day of January, 2004 at about noon, the Prosecutrix (Bukola Adebajo) was urinating at the school farm of the Abeokuta Grammar School, Abeokuta, Ogun State when the Appellant accosted her and threatened to report her to the school authority on the ground that students had been barred from defecating in the school farm. The Prosecutrix (PW1) pleaded with him but the Appellant demanded for money which the Prosecutrix said she did not have and in the process of further threat of reporting the Prosecutrix, the Appellant grabbed PW1 and dragged her further into the farm, overpowering her, he raped her before fleeing the scene.

The incident was later reported to the School Vice-Principal who took PW1 to the hospital and reported the matter to the police. The Appellant could not be found for arrest but on the 24th day of July, 2004 at about 9.20am at a place called Mortuary Junction in Abeokuta, PW1 saw the Appellant and she called her mother by phone who came over and got the Appellant arrested. He made a confessional statement the same day and he was charged to Court.

At the hearing on the 2nd day of May, 2013, the learned Counsel for the Appellant, Adekunle Ojo adopted the brief of argument he settled and filed on 2/11/2011. In it were crafted three issues for determination which are stated thus:

1. Whether the failure of the trial Court to comply with the provisions of Sections 223 and 224 of the Criminal Procedure Laws of Ogun State to determine the insanity of the Appellant at the trial prejudiced the trial of the Appellant.
2. Whether the extra-judicial statement of the Appellant in view of his defence of insanity is a corroboration of the sexual offence of rape.

The learned Attorney-General for Ogun State, Mrs. Abimbola Akeredolu adopted the brief of argument of the Respondent settled by B. A. Adebayo Esq. which was filed on 13th June, 2012 and deemed filed on 29th November, 2012. Learned Counsel adopted the issues as raised by the Appellant which are good enough in the determination of the appeal.

ISSUES 1 & 2

These two issues raise the questions whether the trial Court’s failure to comply with the provisions of Section 223 and 224 of the Criminal Procedure Laws of Ogun State to determine the insanity of the Appellant prejudiced the trial of the Appellant. Also, whether the Appellant discharged the burden of proof in establishing that he was insane on the date the offence was allegedly committed.

Learned Counsel for the Appellant pointed out that at the trial, DW1 and DW2 stated that Appellant had mental sickness and had escaped from where he was undergoing treatment until he was detained and arraigned. That there was no contrary evidence on his having recovered and the learned trial judge had not subjected him to any investigation on the state of his mind at the material time. He cited Sections 223 and 224 of the Criminal Procedure Law.

Mr. Ojo of Counsel went on to contend that when there is a reason to suspect that the accused is of unsound mind and consequently incapable of making his defence, the inquiry will be held and the findings made part of the trial. He referred to Mboho v The State (1966) ALL NLR 63; Odo v State (1998) 1 NWLR (Pt.532) 24.