Gambo Idi V. The State (2017) LLJR-SC
LAWGLOBAL HUB Lead Judgment Report
CLARA BATA OGUNBIYI, J.S.C.
The appellant in this appeal was charged before the Kano State High Court for committing the offence of Rape contrary to Section 283 of the Penal Code Law on a charge filed and dated 5th November, 2010.
In a charge No. K/25C/2010 dated 5/11/14, the appellant was alleged to have committed the offence of rape as follows:-
That you, Gambo ldi ‘M adult of Kofar Gesto Quarters Karaye Local Government of Kano State, on or about 16/6/2010 in your room at the same address within Kano Judicial Division did commit an illegal act to wit: having sexual intercourse with one Hafsat Musa aged 7 years against her will thereby inflicted injuries on her and you thereby committed the offence of rape punishable under Section 283 of the Penal Code Law.”
The appellant pleaded not guilty when he was arraigned on 18/3/13, and the prosecution called 4 (four) witnesses Pw1,Pw2, Pw3 and Pw4 and tendered three Exhibits – A and B being confessional statements of the appellant and the Medical Report issued after examination of the victim at the hospital and closed its case.
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The appellant testified in his defence as Dw1 and called three other witnesses as Dw2, Dw3 and Dw4.
In a considered judgment of the High Court of Kano State delivered on 30/12/13, the appellant was found guilty of the offence as charged, convicted and sentenced to 10 years imprisonment and in addition to pay a fine of N200, 000.00.
The appellant was dissatisfied with the judgment of the trial Court and appealed to the Court below which heard the appeal on the 11th February, 2015 and delivered its judgment on the 20th day of March, 2015. The justices of the lower Court in their unanimous decision affirmed the conviction and sentence of the appellant, by the trial Court.
The appellant was again dissatisfied with the said judgment and hence has now appealed to this Court on 20th day of April, 2015 against same and filed four grounds of appeal.
In accordance with rules of Court, briefs were filed and exchanged by the parties.
The appellant’s brief of argument was settled by Wilson O. Diriwari, Esq. and filed on 9/7/2015. On behalf of the respondent, one Lawan D. Sulaiman – Yakasai, Esq., Director Public
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Prosecution (DPP) Ministry of Justice, Kano State settled the brief and filed same on 4/12/15
On the 6/4/17 when the appeal was heard, both learned counsel adopted and relied on their respective brief of argument. On the one hand the counsel appearing on behalf of the appellant urged in favour of allowing the appeal, discharge and acquit the appellant. On the other hand however, the respondents counsel argued in favour of dismissing the appeal as it lacks merit and impressed on the Court to uphold the decision of the Court below.
The two issues raised on behalf of the appellant are as follows:-
- Whether the Learned Justices of the Court below were right to have relied on the inadmissible testimony of Pw1 as well as exhibit B for failure to comply with the requirements of the Evidence Act, 2011, to affirm the conviction and sentence of the Appellant. Distilled from grounds 1 and 2.
- Whether the Respondent herein has proved the guilt of the Appellant beyond reasonable, with cogent, credible and compelling evidence as required by law. Distilled from grounds 2 and 4.
The same issues by the appellant were adopted also
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on behalf of the respondent. This appeal will be determined on the issues serially.
I wish to point out quickly at this juncture that the notice of appeal filed on behalf of the appellant on the 20/4/15 is at pages 124 – 128 of the record of appeal. Same contains four grounds of appeal. With reference to the two issues formulated by the appellant’s counsel, no issue was formulated from ground 3. Same I hold is deemed abandoned and it is hereby struck out.
1ST ISSUE:
Whether the learned Justices of the Court below were right to have relied on the inadmissible testimony of Pw1 as well as exhibit ‘B’ for failure to comply with the requirements of the evidence Act 2011, to affirm the conviction and sentence of the appellant.
In his submission on the 1st issue, the appellant’s counsel contends that the learned trial Judge drew a conclusion on the competence of Pw1 to give evidence when the Preliminary questions and answers put to him were not reflected on the record as required by law. In effect, that there was no compliance with the special procedure to be adopted before reliance was placed on the evidence of Pw1, who was a minor and
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hence the reliance made on her evidence to convict the appellant, was a very serious omission in law and has damaged the case of the respondent.
Counsel submits also that the absence of strict compliance with Section 209(1) and (3) of the Evidence Act as well as the case of Dagayya V. State (2006) 7 NWLR (Pt. 980) 637 at 640 has rendered Pw1 an incompetent witness.
In further submission, learned counsel drew the Court’s attention to exhibit ‘B’ and stressed emphatically that the reliance thereon, by the Courts below, as the evidence corroborating the testimony of Pw1 to convict the appellant as required by Section 209(3) of the Evidence Act, is in itself not admissible in law. This is because it has failed to satisfy the basic requirements and conditions precedent to its admissibility.
Further still, the appellants counsel was of the firm view that for all intents and purposes, exhibit ‘B’ is a public document within the meaning of Section 102(a) (iii) of the Evidence Act. Hence, it is only the certified true copy of Exhibit ‘B and no other kind that is admissible in law. The learned counsel related copiously to Sections 103, 104(1),
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(2) and (3) and 105 of the Evidence Act.
It is the counsel’s contention therefore that the lower Court erred and held wrongly at pages 113 – 114 of the record of appeal because, even where the original of a public document is available, it is only a certified true copy of it and no other kind that is admissible. The learned counsel, to buttress his submission cited the case of Araka V. Egbue (2003) 17 NWLR (Pt. 848) 1 at 18 per Niki, JSC, also the case of Anatogu V. Iweka II (1995) 8 NWLR (Pt. 415) 547 at 571 per Uwais, JSC which, counsel submits is also in support of the proposition. The said counsel cited further a host of other judicial authorities.
The summary conclusion of the foregoing references, counsel argued is to affirm that the only evidence admissible of Exhibit B’ is the certified true copy and no other kind.
With reference to the Evidence of Pw1, same the learned counsel argued is very incoherent and full of material contradictions that the Courts below erred greatly when they relied heavily thereon to convict the appellant. The counsel cited the decision of this Court in the case of Igbi V. State (2000) 3 NWLR
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(Pt. 648) 169 to support the contradictions alleged; also to buttress the submission was the case of Samuel Attah V. The State (2010) 10 NWLR (Pt. 190) at 212.
The learned counsel affirmatively emphasized the incompetence of Pw1 as a witness and thus rendered the document Exhibit B as inadmissible in law. The counsel urged that the issue should be resolved in favour of the appellant.
In response to the 1st issue raised by the appellants counsel, it is submitted on behalf of the respondent that there is no where it is made a requirement that the trial Judge must record the preliminary questions and answers he put to the child in the record of the Court. The requirement, counsel submits is meant to make the trial Judge to form an opinion whether the child understands the nature of an oath and posses an intelligence to give evidence before it.
It is submitted by counsel also that the conclusion of the trial Judge as to the competence of Pw1 to give evidence without his record reflecting the actual preliminary questions and answers put to Pw1 was not a requirement of the law. Counsel held the view strongly that,
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contrary to the contention put forward by the appellants counsel, Pw1 was a competent witness and that both the lower Courts were right in relying on her evidence to convict and sentence the appellant that there is nothing in law that prevents the Court from convicting on the uncorroborated evidence of the complainant also that the evidence that will amount to corroboration does not have to be direct evidence of commission of the offence by the accused person provided it corroborates the evidence in material particular. See the case of Ogunbayo V. State (2007) SC (Pt. 11) 1.
On the submission by appellant’s counsel in respect of exhibit ‘B’, the respondents counsel objected to same and argues a complete misconception by the counsel of the nature and effect of exhibit ‘B’ as an original document; that the document was rightly admitted.
It is the opinion of the respondent’s counsel further, that the argument advanced on behalf of the appellant is a total misconception of the actual interpretation of Section 18(1) of the Interpretation Act 1990. Cap 192 LFN that the fact that Section 18(1) of the Act makes a police officer a public officer,
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does not make any document emanating from him, in the exercise of his duties, as an Investigation Police Officer, a public document.
The learned counsel urged us to hold that exhibit ‘B’ was rightly admitted by the trial Court and rightly maintained also by the Court below. Counsel submitted emphatically that the documents tendered and admitted at the trial are original in nature and thus require no certification as it was held in the case of PDP V. INEC (2014) 17 NWLR (Pt. 1437) 525 also Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144. The counsel in further submission also cited the case of Kwara State Ministry of Agriculture V. S.G.P. Nig. Ltd (1998) 11 NWLR (575) of 583.
On the evidence of Pw1, it is submitted by the learned counsel that the Court below rightly relied on her evidence which is neither incoherent nor contradictory. The counsel drew a close reference to the case of Moh’d V. State (2000) 3 NWLR (Pt. 648) 439 at 442 to buttress his submission that it is not all contradictions in the testimony of prosecution witnesses that are fatal. For any conflict or contradiction to be fatal, it must be substantial and fundamental. Reference
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was related to the decision in the case of State V. Salisu Babuga (1996) 7 NWLR (Pt. 460) page 279.
The learned counsel urged that the Court should uphold the decision of the lower Court on the above issue.
RESOLUTION OF ISSUE 1
The issue questions the competence of the testimony of Pw1 as well as exhibit B for failure to comply with the requirements of the Evidence Act, 2011.
The summary argument by the appellant’s counsel is that the prosecution failed to adduce evidence to establish the guilt of the appellant beyond reasonable doubt. The learned counsel argued vehemently that the lower Court wrongly affirmed the decision of the trial Court which did not comply with the special procedure required, before receiving and relying on the evidence of Pw1, who was a minor. The reliance on her evidence to convict the appellant, learned counsel argued was a very serious omission in law which has collapsed the case of the respondent completely.
I seek to restate the obvious and an elementary principle of law as submitted rightly by both counsel that, in criminal cases, the prosecution has a duty to prove the case
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against the accused person beyond reasonable doubt as mandated by the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), by which an accused is presumed innocent until proved guilty. Furthermore, Section 135(1) of the Evidence Act 2011 also provides that an allegation of crime even in a civil proceeding must be proved beyond reasonable doubt. See the case of Udosen V. The State (2007) 4 NWLR (Pt. 1023) 125 and Bakare V. The State (1987) 3 SC 1.
It is evident to state also that what is required in proving beyond reasonable doubt is that the prosecution must establish the material ingredients of the alleged offence by adducing credible evidence in support of the charge. See the cases of Aigbadion V. State (1988) 7 SC (Pt. 11) 71 and Michael V. State (2009) 13 NWLR (Pt. 1104) 361.
The crux of the appellant’s case relates to Exhibit ‘B’ and the evidence of Pw1.
The charge against the appellant is for the offence of rape which was defined by his Lordship Ogbuagu, JSC in Ogunbayo V. The State (2007) SC (Pt. 11) 1 at 16 thus:-
”Rape in legal parlance means a forcible sexual intercourse with a girl or woman
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without her giving consent to it. That the most important and essential ingredient of the offence is penetration.”
What the prosecution must proof in a charge of rape have been stated in Ndewenu Posu & Anor. V. The State (2011) LEPLR, SC 134/2010 as follows:-
“In a charge of rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove the following – (a) That the accused had sexual intercourse with the prosecutrix (b) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit impersonation (c) That the prosecutrix was not the wife of the accused, (d) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not (e) That there was penetration .”
The correct position of the law on proof as relating to a minor has been well stated and agreed upon by both counsels.
In other words, where a minor is called upon as a witness to give
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evidence in a case (as it this case), the law under the express provision of Section 209(1) & (3) of the Evidence Act, 2011, stipulates that the Court, is duty bound to conduct a preliminary enquiry to ascertain whether or not the minor possessed sufficient intelligence to answer the questions that will be put to her, also that she understands the duty of speaking the truth. The law is established that this special procedure requires the learned trial Judge to put first, certain questions that are unrelated and unconnected with the facts in issue to the minor, who ought to provide answers intelligently.
As a point of departure however, the appellant’s counsel in addition to the foregoing argued that the Court is further bound to reflect the said questions and answers on its record book to enhance full compliance with the Evidence Act. Section 209(1) & (3).
At this juncture, I would consider it pertinent to reproduce Section 209(1) & (3) of the Act:-
“(1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such a child shall not be sworn and shall give evidence otherwise than on
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oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.”
Subsection 3 also states:-
“A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection (1) of this Section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.
The learned counsel, for the appellant submitted emphatically that the record of proceedings in this case was not reflecting the relevant questions and answers that were put to Pw1 by the learned trial judge before he reached the conclusion as he did and which was confirmed by the Court below.
The learned counsel re-echoed forcefully also that, whereas the law requires the trial judge to record in writing such questions that are unconnected with the facts in issue as well as the answers provided thereto by the said witness to enable the Court reach a conclusion that the minor possessed sufficient intelligence and understands the duty of
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speaking the truth.
For a better understanding of the proceedings that took place at the trial Court which formed the reason for the submission by the appellant’s counsel, I will reproduce same as is reflected at page 10 – 11 of the record whereby the learned trial Judge recorded as follows:-
”Yargaya: My first witness is a 10 years old girl, the victim.
Court: I have asked the witness as to her age her school her family life the existence of bad and the consequence of speaking the truth and I am satisfied that she can give evidence on oath.”
Also, at page 117 of the record the Court below in affirming the stand taken by the trial Court had the following to say:-
“In complying with Subsection (1) of Section 209 above, i.e. satisfying himself that the prosecutrix in this case possessed sufficient intelligence to justify the reception of her evidence, the learned trial Judge recorded the following on page 11 of record before commencement of the evidence of the prosecutrix as Pw1;
Court: I have asked the witness as to her age her school her family life the existence of bad and the consequence of speaking the truth and
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I am satisfied that she can give evidence on oath.
These words of the learned trial Judge, in my view show sufficient compliance with Section 209(1) of the Evidence Act, 2011 and the evidence of Pw1 were properly received at the trial.”
For all intents and purposes, I have no reason to depart from the lower Court which in my view correctly towed the view held by the trial Court. This I say because it is apparent that the account of the incidence of rape graphically given by Pw1, the victim, shows all the ingredients as specified in the case of Ndewenu Posu & Anor V. The State (supra).
Contrary to the submission by the appellant’s counsel therefore, the law, as rightly posed by the counsel for the respondent, does not provide for the reflections of the questions and answers put by the trial Judge to the Pw1 but that Section 209(1) is asking the Court to form an opinion, if Pw1 is possessed of sufficient intelligence to justify the reception of her evidence and understands the duty of speaking the truth.
By the counsel asking that the questions and answers are to be recorded in black and white, he is asking for a re-writing of
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the provision of the law, which is outside his mandate.
The capability test is preliminary and it enables the Court to form an opinion as to the competence of a child to testify. Technicality as is sought to play by the appellant’s counsel cannot be accommodated. See also the decision of this Court in the case of Dagayya V. State under reference (supra) and which was also cited by the appellant’s counsel, wherein it was held at page 640 that:-
“By the combined effect of Sections 155 and 183 (1) & (2) of the Evidence Act, once a witness is a child, the trial Court must adopt the following procedures:
(a) The first duty of the Court is to determine first of all whether the child is sufficiently intelligent to understand the questions he may be asked in the course of his testimony and to be able to answer rationally. This is tested by the Court putting to him preliminary questions which may have nothing to do with the matter before the Court.
(b) If, as a result of these preliminary questions, the Court comes to the conclusion that the child is unable to understand the questions or to understand the questions or to answer then
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intelligently, the child is not competent witness within the meaning of Section 155(1). But if the child passes the preliminary test, then the Court must proceed to the next test as to whether, in the opinion of the Court, the child is able to understand the nature and implication of an oath.
(c) If after passing the first test, he fails the second test then being competent witness, he will give evidence which is admissible under Section 183(2), though not on oath. If, on the other hand, he passes the second so that in the opinion of the Court, he understands the nature of an oath, he will give evidence on oath.
As rightly re-iterated by the respondent’s counsel and contrary to the contention held by appellant, there is no where it is made a requirement that the trial Judge must record the preliminary questions and answers he put to the child in the record of the Court. The said contention sought by the appellant, I hold, is not a requirement of the law and therefore not within reason. The purpose for the requirement is rather meant for the trial Judge to form an opinion whether the child understands the nature of an oath and possesses
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intelligence enough to give evidence before it.
I seek to say also that the requirement of corroboration in the evidence of Pw1 has been met with the evidence of Pw2, her mother who testified that when Pw1 reported that she was raped by the appellant, she was taken to the hospital.
Pw4 one Charles Onya was the medical doctor at the General Hospital who gave the report of his examination of the victim by name Hafsat Musa. This was his evidence:-
“I examined her i.e. conducted virginal (sic) examination and found bruises around the virginal (sic) and active bleeding signs around the virginal (sic) I also discover (sic) that her hymen was broken, so I make and established case of rape.
The report was identified by Pw4 and admitted as exhibit ‘B’.
At pages 119 – 120 of the record of appeal, the Court below in its judgment had the following to say:-
“It has been held that although it is desirable as a rule of practice that offences of sexual character that the evidence of the complainant should be strengthened by other evidence implicating the accused, there is nothing in law that prevents the Court from
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convicting on the uncorroborated evidence of the complainant; also that the evidence that will amount to corroboration does not have to be direct evidence of commission of the offence by the accused person provided it corroborates the evidence in material respect.
I completely endorse the conclusion arrived at by their Lordships of the lower Court supra wherein reliance was placed on the decision of this Court in the case of Ogunbayo V. The State (2007) SC (Pt- 11) 1 at 16 that:-
“Rape in legal parlance means a forcible sexual intercourse with a girl or woman without her giving consent to it. That the most important and essential ingredient of the offence is penetration.”
I wish to add at this juncture that the appeal under consideration is very much strengthened by the authority of Ogunbayo V. State (supra) and goes beyond because the victim in the appeal before us is a minor and could not give consent by law. Moreover, the essential ingredient of the offence being penetration is very overwhelming from the Doctors evidence that the victims hymen was broken into and he did established the case of rape.
Also on the admissibility of Exhibit
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B, which the appellants counsel submits is wrongful for absence of certification, I hold the view that the argument is totally misconceived in other words, and as rightly posited by the respondents counsel, the document Exhibit B tendered and admitted at the trial is original in nature and requires no certification as held in the case of PDP V. INEC (2014) 17 NWLR (Pt.1437) 525. Also the case of Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144.
Section 85 of the Evidence Act has stated clearly that documents may be proved by either primary or secondary evidence, and that the primary evidence is the document itself whilst the secondary evidence is the certified true copy of the original, where the document is a public document within the meaning of the Act.
I have stated earlier that Exhibit B was the original document tendered at the trial in line with the case of Tobik Invest. Ltd. V. Guarantee Trust Bank Plc (2011) 17 NWLR (Pt. 1276) 240. It is the appellant’s argument that the Court must not consider the originality of Exhibit B, but rather that it is subject to the exception to the general rule and thus relegating it to a position of
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being secondary document.
As rightly submitted and argued by the respondents counsel, Section 83 of the Evidence Act provided for admissibility of documentary evidence. The case of Tobik Investment Ltd V. GTB Plc supra, cited by the appellant is, to the extent that documents emanating from the Nigerian police, especially documents to be used in Court are public documents which only certified true copies are admissible in evidence. The foregoing requirement does not refer to the document contained in the case diary which is a subject and result of investigation by Section 127(1) and (2) of the Criminal Procedure Code, contents of a case diary which includes exhibit ‘B’ (which was a document obtained in the course of investigation) are a primary document. They are original as provided in Section 83 of the Evidence Act 2011 (as amended) and are admissible in evidence.
Therefore the reliance made on the case of Tobik Inv. Ltd. V. GTB by the learned counsel on behalf of the appellant does not help their case.
Further still and contrary to the contention argued on behalf of the appellant, is the case of Kwara State Ministry of
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Agriculture V. S.G.P. Nig Ltd (1998) 1 NWLR (Pt. 575) at 583 per Ogbebe, JCA wherein it was held that:-
a public document is admissible as primary evidence without certification.
It is submitted by the appellant’s counsel also that the evidence of Pw1 is very incoherent and full of material contradictions. The law is well entrenched and established that it is not all contradictions in the testimony of the prosecution witnesses that are fatal. For any of such to be detrimental, it must be substantial and fundamental. Again see the case of State V. Saliu Babuga (supra).
I have read carefully the totality of the evidence by pw1 at page 11, 12, 20, and 21 of the record of appeal, wherein the witness was very consistent that it was the appellant who raped her. She did not mention any other person. The witness, despite all efforts to confuse her under cross examination, by the appellants counsel, remained coherent, stable and consistent. There is no conflict, discrepancy or contradiction that are material so as to discredit the evidence by pw1, by creating any doubt in the mind of the Court. See also the case of Ibrahim V. The
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State (1991) 4 NWLR (Pt. 186) 399.
The said issue is resolved against the appellant therefore and in favour of the respondent.
2ND ISSUE
Whether Respondent herein has proved the guilt of the appellant beyond reasonable doubt, with cogent, credible and compelling evidence as required law.
The appellant’s counsel on the one hand has argued that the respondent herein failed woefully to prove the guilt of the appellant with credible evidence beyond reasonable doubt as required by law. On the other hand however, the respondents counsel argued the contrary.
Without having to belabor this issue, I wish to state that the determination of same have been subsumed in the 1st issue which had determined the merit of the two issues put together. This is more so with the overlapping of issues 1 & 2 which are both formulated from ground 2 of the grounds of appeal.
Suffice it to say in summary that the trial Court in convicting the appellant did not rely only on the evidence of Pw1 but on other overwhelming corroborative evidence by Pw2 (the victims mother), and Pw4 the medical doctor as well as the medical report exhibit B. Furthermore, at page 64 of the record specifically for instance; the
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trial Court re-iterated his belief and satisfaction that the appellant did commit the offence of rape beyond reasonable doubt.
The lower Court at page 119 – 120 of the judgment also endorsed the findings by the trial Court and said:-
The account of the incidence of rape graphically given by the Pw1 shows the above ingredients while exhibit B further confirms that there was penetration.
On the requirement of corroboration in this case, the evidence of Pw2, the mother of Pw1 showing that the Pw1 reported that she was raped by the appellant and was taken to hospital and the Medical Report exhibit B are sufficient for that purpose. –
The summary of the foregoing is that though the trial Court discountenanced the statement of the appellant and did not rely thereon, the Court properly considered and relied on the oral evidence adduced by the prosecution and which sufficiently established the charge against the appellant beyond reasonable doubt.”
I have no reason to disagree with the two lower Courts. The evidence against the appellant and supporting his conviction and sentence is overwhelming.
I wish to stress in strong terms and condemn the
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unwholesome and disgraceful behavior of the appellant. He is not a person fit to be associated with, in a decent society. His conviction and sentence is what people of his kind should deserve. He should be kept behind the bars in terms of the judgment meted on him by the two lower Courts.
Appeal lacks merit and is hereby dismissed.
The sentence and conviction of the appellant to ten years imprisonment with hard labour is also affirmed by me. The appellant is also ordered to pay a fine of N200, 000.00 and in default he is to serve an additional 12 months imprisonment.
Appeal is hereby dismissed while the judgment of the lower Court which affirmed the judgment of the trial Court is affirmed also by me.
SC.363/2015