Hassan Ibrahim V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

DALHATU ADAMU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of High Court No.1 Katsina presided over by Hon. Justice S.A. Mahuta Chief Judge. The appellant was brought before the trial court upon a charge dated 30th March, 2005. According to what appears on the record of proceedings, the charge was indicated to have been read out to the appellant.

It was also indicated on the record that the appellant speaks Hausa but there was neither the record that an interpreter was provided for him nor the charge has been explained to him from English to Hausa.

At the trial the prosecution called 5 witnesses namely Hashiya Shuaibu, Shuaibu Abashe, Sgt. Deko Alibi, Hauwa Shuaibu and Sulaiman Abdullahi (as PW1 – 5).

The prosecution also tendered the purported confessional statement of the Appellant but it was rejected by the trial court. Exhibit ‘A’ was also the medical evidence in respect of the prosecution. The appellant testified in his own defence where he denied the allegation of rape but tendered no exhibit.

After reviewing the evidence of the parties the trial court found the appellant guilty and sentenced him to 10 years imprisonment with hard labour. Being dissatisfied with the judgment, the appellant filed a Notice of Appeal containing 2 grounds of appeal with their particulars.

The following two issues are distilled for the determination of the appeal:-

“1. Whether the prosecution has proved the case against the Appellant beyond reasonable doubt (distilled from ground 1).

2. Whether there had been a valid arraignment in accordance with the provision of Section 187(1) of the criminal Procedure Code (Cap.37) Laws of Katsina State 1991 (distilled from Ground 2).

Issue 1: Under issue 1, the Appellant submit the trial court erred in law when it held that the prosecution proved its case against the appellant beyond reasonable doubt. It is submitted that the prosecution has a legal burden of proving the essential elements of the offence of rape beyond reasonable doubt. The most important essential element here are said in the brief to be penetration and consent-See the case of Edet Okon Iko vs. The State (2001) FWLR (Pt.68) 1161.

Although the, issue of consent does not arise, it is submitted that the only evidence before the trial court upon which the trial court relied to convict the appellant is the evidence of the prosecutrix and, the medical report (Exhibit A) all of, which, it is conceded in the brief of the appellant established the fact that there was penetration. However the evidence of the prosecutrix being an unsworn evidence of a child must be corroborated – See the case of Edet Okon Iko vs.The State (supra) and Section 183(3) of the Evidence Act, Shazali vs.The State (1988) 5 NWLR (pt.93) 175.

It is submitted that the evidence of PW1, PW2 and Exhibit A or any of the evidence given by the prosecution witnesses cannot constitute corroboration in law. Edet Okon Iko vs. The State supra). There must be evidence which implicates him that is which conform with some material particulars and showing that not only the crime has been committed but also that the accused person committed the crime.

It is finally submitted that the mere statement of the prosecutrix that the Appellant inserted his penis into her vagina is not ipso facto sufficient proof of penetration in the absence of corroborative and independent evidence establishing same.- See N.A. Police vs. Allah na Gani (1968) NMLR 8. We are urged to allow the appeal on this issue.

In the respondents brief written by A. A. Ibrahim Esq.., it was pointed out that the appellant has conceded that the prosecution has proved the essential elements of the offence of Rape which are lack of consent and penetration. He however contended that the evidence of PW4 (The prosecutrix) being an unsworn evidence of a child has not been corroborated by an independent evidence as required by law (see page 4 issue No.1 of the appellants brief).

It is submitted in the respondents brief that corroboration means no more than evidence tending to confirm, support and strengthen other evidence sought to be corroborated. It needs not be direct evidence that the accused person committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime – See Oladotun Ogunbayo vs. The State (2007) 8 NWLR (Pt.1035) 157 at 179, Dagayya v. The State (2006) 7NWLR (Pt.980) 637 at 682.