Adamu Jibbo v. The State (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the leading judgment)

The appellant was arraigned before the High Court of Yobe State in charge No. YBS/HC/PT/04C/2022: The State v. Adamu Jibbo and charged with the following offence:

That you Adamu Jibbo male, 50 years old of Gadaka Village via Fika L.G.A. of Yobe State on or about the 23rd day of January, 2022 at about 1700hrs in your shop at Gadaka Village via Fika L.G.A Yobe State which is within the jurisdiction of this honourable court committed the offence of rape in that you lured one Aisha Audu a girl of 9yrs old into the said shop and had carnal knowledge of her on the pretense to pay her the sum of N300.00 being money of her beans cake (Dan Wake) you purchased. You hereby committed the offence of rape punishable under section 283(1)(a) Yobe State Penal Code (Amendment) Law, 2018.

In proof of the offence charged, the prosecution called three witnesses, while the appellant testified in his defence and called one other witness. A total of three exhibits were tendered.

In its judgment which was delivered on 4th July, 2023, the lower court, Coram Judice: Usman Zanna Mohammed, J., held that the offence charged had been proved beyond reasonable doubt, it convicted the Appellant as charged and sentenced him to imprisonment for life.

The appellant was dissatisfied with the decision of the lower court and appealed against the same by notice of appeal filed on 24th July, 2023. The chafed judgment of the lower court and the notice of appeal are contained in the additional record of appeal which was transmitted on 20th March, 2024 but deemed as properly transmitted on 23rd April, 2024.

The records of appeal and additional record of appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument which learned counsel adopted and relied upon at the hearing of the appeal. All the briefs were by order of this court deemed as having been properly filed on 23rd April, 2024. In the Appellants brief which was filed on 23rd August, 2023, three issues were formulated for determination, videlicet:

1. Whether the respondent has discharged the burden of proof placed on him in establishing a case beyond reasonable doubt against the appellant (Distilled from ground one of the notice and grounds of appeal).
2. Whether the respondent has proved the ingredients of the offence under section 283(1)(a) of the Yobe State Penal Code 2018 as amended to warrant the conviction of the appellant for the offence charged? (Distilled from ground two of the notice and grounds of appeal).
3. Whether failure of the trial court to properly evaluate the evidence before it as well as resolving the issues formulated by the appellant counsel before arriving at it (sic) decision has occasion serious miscarriage of justice. (Distilled from Ground three and four of the notice and grounds of appeal).”

The respondent in its brief of argument filed on 4th September, 2023 adopted the issues distilled for determination by the appellant. This being so, it is based on the issues formulated by the appellant, which are rooted in the grounds of appeal, that I will review the submissions of learned counsel and then resolve the appeal synchronously.

Submissions of the appellants counsel

The appellant submits that arising from the compelling constitutional presumption of innocence in favour of an accused person, the Prosecution has the burden of proving the offence charged beyond reasonable doubt. Section 135(2) of the Evidence Act and the cases of Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87, Adeyemi v. The State (2011) 24 WRN 68; (2012) All FWLR (Pt. 606) 492 at 505, Miller v. Minister of Pensions (1947) 2 All ER 372 among other cases were referred to.

It was asserted that the burden of proof remains on the Prosecution even if the accused person admits committing the offence in his statement vide Mohammed v. The State (2017) 13 NWLR (Pt. 1583) 386 at 421 – 422.

The cases of Idi v. The State (2016) LPELR-41555 (CA) and Posu v. The State (2011) 11 WRN 1; (2011) 2 NWLR (Pt. 1234) 392 at 414 – 416 were relied upon for the meaning of rape and the essential ingredients to be proved in a charge of rape. It was stated that the testimony of the PW1 is based on suspicion and that suspicion, no matter how strong, cannot take the position of evidence. It was further contended that the medical report, exhibit AJ3, shows that there was no penetration of the prosecutrix.

The case of Umar v. The State (2016) LPELR-45425 (CA) at 21 – 23 and 25 was called in aid. It was opined that any doubt in the prosecution case arising from being based on suspicion must be resolved in favour of the appellant. It was maintained that the prosecution having failed to prove that there was penetration did not prove all the micro elements of the offence charged.

Arguing his second issue, the appellant doubled down on his submission that penetration was not proved. It was posited that apart from the prosecutrix, no other witness testified that there was penetration and that there was no independent evidence corroborating the evidence of the prosecutrix. The cases of Akpan v. The State (2014) LPELR 22741 CA, Umar v. The State (supra), Habibu Musa v. The State (2013) LPELR-19932 (SC) at 38 – 39, Amadi v. The State (1993) 8 NWLR (Pt. 314) 644 at 661, Idrisu v. The State (2005) 1 NCC 578 at 590 and S. S. Richardson, Notes on Penal Code Laws were cited in support.