Albert Igbine V. The State (1997)

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MUNTAKA-COOMASSIE, J.C.A. 

In the Yola High Court Adamawa State of Nigeria, the accused person, who is now the appellant was arraigned before Thomas, J. charged with raping one Patience Essien a seven year old girl. At the end of the prosecution’s case, herein called the respondent, the appellant was convicted on 9th January, 1996 for rape of a teenage girl under section 282(1)(e) of the Penal Code Law Cap 89 Laws of Northern Nigeria as applicable in Adamawa State. He was consequently sentenced to five years imprisonment without option of fine. In addition he was fined N5,000.00 or two years imprisonment in default all under Section 283 of the same law. Thomas J, has this to say:-

“In the judicial analysis, I hold the view that the defence of the accused person is so hallow (sic) as the prosecution’s evidence is so overwhelming against the accused person and I am satisfied that the charge of rape has been established beyond reasonable doubt. I find you guilty of rape of teenage girl contrary to Section 282(1)(e) of the Penal Code which is punishable under Section 283 of the Penal Code.”

Being dissatisfied with the judgment handed down by the High Court hereinafter referred to as trial court the appellant went on appeal before us and supported it with four grounds of appeal as follows:

1. The conviction of the appellant is unreasonable and unwarranted and cannot be supported having regard to the evidence.
2. The learned trial Judge erred in law when he found in his judgment at page 39 lines 24-27 and consequently reached a wrong conclusion.

“I am satisfied that the evidence of PW5 and her contemporaneous recording of her observations in exhibit 1 is sufficient corroboration of rape as described by the prosecutrix in her evidence before me.” Particulars supplied.

3. The learned trial Judge erred in law when he convicted the appellant despite the material contradictions in the evidence of the prosecution witnesses and when he proceeded to use his personal knowledge to resolve the contradiction.

Particulars of Error supplied.

4. The appellant had no fair hearing and there was miscarriage of justice going by certain pronouncements and actions of the trial Judge and in view of the lengthy period between the times of final addresses by counsel and the time the judgment was finally delivered.

Pursuant to the rules of this court, the parties, through their counsel, filed and exchanged their Briefs of argument. The appellant formulated four issues for determination of this court as follows:-

(i) Did the prosecution adduce sufficient legal evidence to warrant the conviction of the appellant for rape?

(ii) Did the medical evidence adduced by the prosecution meet the standard of corroborative evidence required to convict the appellant of rape in all the circumstances of the case?

(iii) Was there material contradiction in the evidence of the prosecution and if there was, was the learned trial Judge right in using his own personal knowledge to resolve the contradiction?

(iv) Did the appellant have a fair hearing and a fair trial having regard to the length of time between final addresses and the date of judgment and also by some of the trial Judge’s pronouncements and actions against the appellant in the course of trial?

The respondent, as prosecutor, for their own part adopts the issues for determination as set out by the appellant with the exception of issue (ii) there of. In its place the respondent formulated its own to be:-

(ii) Whether the medical evidence has satisfied the statutory provisions for corroboration, and if not are there other material evidence providing corroboration to warrant conviction of the appellant.

I have thoroughly examined these issues formulated by learned counsel in their respective briefs of argument. I will consider the issues as formulated by the appellant along with issue (ii) added by the respondent supra. I must also state that at the oral hearing of the appeal, learned counsel for the appellant Oloronmuhunle Esq. merely adopted his briefs filed on 15/2/96 and appellant’s reply brief filed on 18/4/96. He relied on both briefs and urged this court to allow the appeal set aside the decision of the trial court and quash same. He then urged this court to discharge and acquit the appellant. It is manifest that the respondent filed his respondent’s brief on 22/3/96. The respondent’s learned counsel Christopher Cromwell (Senior State Counsel Attorney-General’ s Chambers, Ministry of Justice, Yola, Adamawa State) who settled the respondent’s brief of argument, was absent in court although duly served with hearing notice in respect of the appeal. Accordingly this court proceeded with the hearing of the appeal Ex parte pursuant to the relevant Rules and Orders of this court on the briefs filed by both parties.