Ali V. State (2020)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Jos division, delivered on 17/07/2018 – Coram:- Uchechukwu Onyemenam; Habeeb Adewale O. Abiru; Elfrieda O. Williams-Dawodu, JJCA which upheld the judgment of the High Court of Gombe State delivered by the Hon. Justice J. A. Awak, in charge No. GM/26C/2013 on the 30th day of June, 2015.

The appellant had been arraigned before the trial Court by a charge dated 18th November, 2013 for the offence of rape, contrary to Section 282 of the Penal Code and punishable under Section 283 of the same Code.

The appellant was alleged to have, on or about the 12th of March, 2012 at Jauro Abare Quarters of Gombe State, had unlawful carnal knowledge of one Hadiza Shuaibu who was five (5) years old at the time of the commission of the alleged offence. The Charge reads:-

“That you Mohammed Ali of Jauro Abare quarters on or about 12th March, 2012 at Jauro Abare quarters of Gombe State within the jurisdiction of this Honourable Court did an unlawful act, to wit: having unlawful carnal knowledge of one Hadiza Shuaibu – 5 years old and thereby committed an offence contrary to Section 282 of the Penal Code and punishable under Section 283 of the Penal Code.”

The appellant pleaded not guilty to the charge and the matter proceeded to trial. The Prosecution called six witnesses and tendered three documents that were admitted and marked – Exhibits A, B and C respectively. The appellant in his defence testified and called two other witnesses. At the conclusion of the trial, counsel filed and adopted their respective written addresses.

In its reserved judgment, the trial Court found the appellant guilty as charged. He was convicted and sentenced to ten (10) years imprisonment without an option of fine.

Appellant was aggrieved by the judgment of the trial Court, hence he appealed to the Court below. In its reserved judgment delivered on 17th July, 2018, the Court below found as follows:

“All in all, this Court finds that the appellant has not given it any tangible or cogent reason to tamper with the evaluation of evidence carried out by the lower Court. This Court finds no merit in the appeal and it is hereby dismissed. The judgment of the High Court of Gombe State delivered by Honourable Justice J. A. Awak in charge No. GM/26C/2013 on the 30th of June, 2015 is affirmed along with the conviction and sentence passed on the appellant therein.”

Further aggrieved by the judgment of the Court below led the appellant to appeal to this apex Court with his Notice of Appeal filed on 15th August, 2018 which was amended to five grounds of appeal. Upon settlement of the records of appeal, parties filed and duly exchanged briefs of argument. The appeal was later heard on 8th day of October, 2020.

In the appellant’s brief of argument settled by Josiah Daniel-Ebune Esq., the learned counsel distilled the following three issues for the determination of the appeal:

1. Whether the judgment of the trial Court is unconstitutional and therefore a nullity (Ground 4 of the Amended Notice of Appeal).
2. Whether the Court of Appeal approached the resolution of the appellant’s appeal against the judgment of the trial Court, fairly and dispassionately and thereby did not prejudge the issues. (Ground 1 of the Amended Notice of Appeal).
3. Was the Court of Appeal right in affirming the decision of the trial Court on the Potency of Exhibit C, and the evidence of PW3 and 4 as corroborating the evidence of the Prosecution having regard to all the facts and circumstances of this case? (Grounds 2, 3 and 5 of the Amended Notice of Appeal).

In the respondent’s brief of argument settled by Zainab Abdulkadir El-Rasheed Esq., filed on 7/2/2019, learned counsel also formulated three issues for determination as follows:-

1. Whether the lower Court was right in affirming the judgment of the trial Court on Exhibit C (Ground 2).
2. Whether the decision of the lower Court in affirming the judgment of the trial Court has occasioned a miscarriage of justice to the appellant (Grounds 1, 3 and 5).
3. Whether the judgment of the trial Court violates constitutional provisions and therefore makes it invalid. (Ground 4).

However, reading through the Amended Notice of Appeal of five grounds, I am convinced that the following are the two issues that arise for the determination of the appeal:

1. Whether the Court of Appeal was right in upholding the judgment of the trial Court that the prosecution proved the charge of rape against the appellant beyond reasonable doubt. (Grounds 2, 3 and 5 of the Amended Notice of Appeal).
2. Whether the Court of Appeal was not wrong in affirming the judgment of the trial Court which was prima facie null and void, not having been signed by the trial Judge who delivered the said judgment. (Grounds 1 and 4 of the Amended Notice of Appeal).

In arguing Issue 1, learned appellant’s counsel referred to the testimony of the victim of the alleged rape – Hadiza Shuaibu at 8 years old and contended that she gave an unsworn evidence before the Court and that the prosecution relied on the statement and the content of Exhibit C – the Medical report and Exhibits A and B, which though not confessional in nature but were said to be consistent with the evidence of the victim that she did not give her consent to the assault on her.