Hamza Sani v. The State (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

TIJJANI ABUBAKAR, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal Kaduna Division delivered on the 23rd day of March, 2018, wherein the court affirmed the conviction and sentence of the appellant to twelve years imprisonment.

The appellant in this appeal, Hamza Sani was arraigned before the High Court of Justice Jigawa State on one count charge of committing the offence of sodomy contrary to section 284 of the Penal Code of Jigawa State (amended).

He was accused of taking a 10 year old boy, Ali Musa into his house removed his trouser and had sex with him through the anus, an offence contrary to and punishable under section 284 of the Penal Code.

The respondent called witnesses at the trial and tendered exhibits, PW2 Mubarak Ali in his evidence said on the 10th day of March, 2013, he entered the house of the appellant and saw him on top of one boy, PW3 Nura Dauda also stated that he saw the appellant entering his house with his victim a small boy, that when they later entered the house they saw the appellant on top of the Almajiri, he said the matter was reported to the police and all were taken to General Hospital Jahun.

The appellant in his defence said he was pressing cloth and run short of charcoal, that he sent the boy to buy him charcoal, he said he was arrested by one Ubale and the hisba commander. The respondent tendered the confessional statement of the appellant in Hausa and English as exhibits P2 and P3. Appellant was eventually arraigned in court.

The charge against the appellant set out at page one of the records of appeal reads as follows:

“That you, Hamza Sani (M) of Tsohon Layi Quarters Jahun Town, Jahun LGA, Jigawa State on or about 10th day of September, 2013 at about 15-30hrs at Tsohon Layi Quarters Jahun town, Jahun LGA Jigawa State within the Jigawa Judicial Division committed an offence to wit, you deceived one 10 year old boy by name Ali Musa into your house, laid him down, removed his trousers and had sex with him through his anus and you thereby committed an unnatural offence punishable under section 284 of the Penal Code of Jigawa State Cap P3 Laws of Jigawa State 2012.”

When the charge was read and explained to the appellant, he pleaded not guilty, the case immediately proceeded to trial.

At the trial, the prosecution/respondent in this appeal called 3 witnesses and tendered 3 exhibits in proof of its case, while the appellant testified in his own defence. At the conclusion of trial, the trial court found the appellant guilty as charged and sentenced him to 12 (twelve) years imprisonment.

The appellant became nettled by the decision of the trial court and therefore filed notice of appeal to the lower court. The lower court found no merit in the appellant’s appeal, it was therefore dismissed, the judgment of the trial court was accordingly affirmed by the lower court.

The appellant became aggrieved and further appealed to this court via an amended notice of appeal containing four grounds filed on the 11th day of January, 2019, the amended notice was deemed as properly filed and served on the 17th day of March, 2022.

The appellant through learned counsel Tonye Krukrubo, Esq., filed the appellants brief of argument on the 11th day of January, 20191 the brief was deemed as properly filed and served on the 17th day of March, 2022. Learned counsel for the appellant nominated three issues for determination, the issues reads as follows:

1. Whether the trial court was competent to entertain the charge of sodomy against the appellant when leave of court was not obtained to prefer the charge against the appellant. (Distilled from ground 4 of the grounds of appeal).
2. Whether the lower court was right when it came to the conclusion that all the ingredients of the offence of sodomy were proved in this case. (Distilled from ground 1 of the grounds of appeal).
3. Whether the lower court was right to have affirmed the sentence of 12 years imposed on the appellant. (Distilled from ground 2 of the grounds of appeal).

Learned counsel for the respondent Mustapha I. Abubakar on the other hand filed the respondent’s brief of argument on the 11th day of May, 20201 it was also deemed as properly filed and served on the 17th day of March, 2022. Learned counsel also nominated corresponding three issues for determination,