Idam V. Frn (2020)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALUMJE, J.S.C.

The Appellant herein, was arraigned before the High Court of the Federal Capital Territory on a two count charge of rape contrary to Sections 282 (1)(a) (b) and (c) and punishable under Section 283 as well as criminal force contrary to Section 265, all of the Penal Code Law. On the 12th of April, 2006, the two count charge was read and explained to the Appellant and he pleaded not guilty. In order to prove its case, the prosecution called four witnesses and tendered in evidence the statements of the prosecutrix, the prosecutrix’s father, as well as that of the Appellant and they were admitted and marked Exhibits A, B and D respectively. Exhibit D was later expunged along with the evidence of PW3 who did not turn up for cross-examination. After a careful consideration of the evidence before him, the learned trial Judge in his reserved and considered judgment found the Appellant guilty as charged and sentenced him to ten years’ imprisonment on count 1 and one-year imprisonment on count 2. Both sentences were ordered to run concurrently.

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The Appellant was dissatisfied

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with the decision of the trial Court. Being aggrieved, he appealed to the Court of Appeal, Abuja Division and submitted two issues for determination of his appeal. The two issues were resolved against him and his appeal was dismissed. Again, the Appellant is dissatisfied with the decision of the Court of Appeal and has now brought this appeal. His notice of appeal, filed on the 8th of July, 2016 contains three grounds of appeal. Parties filed and exchanged briefs of argument. Mr. Abdullahi Haruna, learned Counsel for the Appellant formulated three issues for determination of this appeal and they read as follows:-

1. “Whether the prosecution can be said to have proved its case beyond reasonable doubt in view of the fact that the essential ingredients of the offences alleged against the Appellant were not established.
2. Whether the testimonies of both the PW2 and PW4 do not amount to hearsay evidence and thus not unsafe for the Court below to rely on while affirming the judgement of the Trial Court.
3. Whether the learned justices of the Court below were right to have upheld the Appellant’s sentences of 10 years and 1-year imprisonment for

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the offences of Rape and criminal force respectively to run concurrently from the date of judgment (8th July, 2009) when the Appellant had been in prison custody since 12th April, 2006 a period of over 3 years before the date of judgment?

Mr. Ibrahim Angulu, learned counsel for the Respondent, leading two other counsel submitted two issues for determination of this appeal, in the following terms:

1. Whether the Respondent has proved its case of rape and criminal force beyond reasonable doubt to justify the conviction of the Appellant.
2. Whether the sentence of the High Court reaffirmed by Court of Appeal is legally right.

I have read the parties’ briefs of argument and I am of the firm view that the only issue calling for determination of this appeal is whether the Lower Court was right in affirming the decision of the Trial Court, having regard to the evidence adduced at the trial, and if so whether the sentences passed on the Appellant are not excessive.

Learned Counsel for the Appellant in his argument, submitted that the prosecution failed to prove the essential element of the offence of rape, as it failed to prove that the

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Appellant’s penis penetrated the vagina of PW1, the prosecutrix. Learned Counsel cited the authority of Posu v. State (2011) 2 NWLR (Pt. 1234) 393 at 416-417, paras F-B, in support of his submission that where in a charge of rape, penetration of the vagina is not proved, the accused will be discharged.

On the sentence passed on the Appellant, Learned Counsel submitted that the sentence of 10 years and one year for the offences of rape and criminal force respectively is excessive, bearing in mind the age of the Appellant and for the fact that he is a first offender who has been dismissed from his employment as a result of this case. According to the learned counsel, these factors are enough to mitigate the punishment. In aid learned counsel cited and relied on the authority of Ekpo v. State (1982)146 NSCC 146 at 155. In conclusion, learned counsel urged this Court to allow the appeal. In reply, Learned Counsel for the Respondent submitted that the prosecution did prove at the trial court all the ingredients of the offence of rape.