Ismaila Kiwo V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment)

This appeal emanated from the decision of the Kwara State High Court presided over by Kawu J. delivered on the 29th day of November 2012.

The Appellant/accused before the trial court stood trial on one count charge which reads as follows:

“That you, Ismaila Kiwo, on or about the 11th day of May 2010, at Aboto-Oja, Ilorin, within the jurisdiction of this court forcefuily dragged Suliat Ibrahim (F) into the bush and had carnal knowledge of her without her consent and thereby committed an offence punishable under Section 283 of the Penal Code.”

Learned Director of Public Prosecutions Ministry of Justice Ilorin J. A. Mumini Esq, filed the charge dated 27th September 2011 on behalf of the prosecution.

The facts of this case are that the Appellant on the 11th day of May 2010, at Aboto-Oja in Ilorin laid ambush and forcefully dragged Suliat Ibrahim to the bush and had carnal knowledge of her without her consent. Appellant ran into the bush after the act, the victim and Adenike Ibrahim reported the incident to their parents, who promptly reported the incident to the Police.

Appellant was later arrested and arraigned before the Kwara State High court, at the conclusion of trial, Appellant was found guilty and sentenced to four years imprisonment.

Appellant became dissatisfied and therefore filed notice of appeal against the judgment of the lower Court on 21 January 2013. Appellant filed five grounds of appeal reproduced without particulars as follows:

1. The learned trial Judge erred in law, when he found the Appellant guilty of the offence of rape punishable under Section 283 of the penal code, Laws of the Federation of Nigeria 2004.
2. The learned trial Judge erred in law, when he found that, the testimony of PW4 and other evidence were sufficient to corroborate the evidence of PW3, and establish that, the Appellant actually committed the offence.
3. The learned trial Judge erred in law, when he convicted the Appellant based on the evidence of PW5 which is doubtful, inconclusive, obscure and of no known certainty.
4. The learned trial Judge erred in law, when he convicted the Appellant based on the weight of evidence adduced by the prosecution when there is no causal link between the Accused and the actual commission of the offence.
5. The trial Court erred in law when it treated with levity, the failure of the Prosecution to tender the written statement which the accused made to the Police upon his arrest.

Learned counsel Olalekan Yusuf filed Appellants brief; the brief was filed on 4/3/2013, and deemed argued on 17th April 2013. Respondents brief was settled by learned Attorney General of Kwara State Kamaldeen Ajibade Esq.

The Appellants counsel crafted from Appellants grounds of appeal the following issues for determination.

1. Whether, the learned trial Judge was right when he held that the Prosecution proved ifs case beyond reasonable doubt.
2. Whether, the learned trial Judge was right to find that, the testimony of PW4, PW5 and other evidence adduced by the prosecution were sufficient to corroborate the evidence of PW3.
3. Whether based on the evidence of prosecution witnesses and the exhibits tendered, there was any causal connection between the accused person and the actual commission of the offence.
4. Whether, the prosecution has a duty not to withhold evidence germane to the case of the Appellant and whether the Court can rightly convict an accused where accused’s statement has been withheld.

The Respondent through learned Attorney General Kwara State Mr Ajibade filed Respondents brief of argument dated 26th March 2013.The Respondent adopted Appellants issues for determination and submitted argument in the same order the Appellant argued the said issues.

Even though Respondent adopted the issues crafted by the Appellant. The Appellant submitted fragmented and pluralized issues which stray throughout issues one, two and three I hold the view that issues one, two and three can be treated together as they all relate to proof beyond reasonable doubt, I will therefore treat the three issues together, for the avoidance of doubt the three issues are:

1. Whether, the learned trial Judge was right when he held that the prosecution proved its case beyond reasonable doubt.
2. Whether, the learned trial Judge was right to find that the testimony of PW4, PW5 and other evidence adduced by the prosecution were sufficient to corroborate the evidence of PW3.
3. Whether based on the evidence of prosecution witnesses and the exhibits tendered, there was any causal connection between the accused person and the actual commission of the offence.

Both counsel for the Appellant and Respondent submitted arguments on the issues nominated; learned counsel Olalekan Yusuf for the Appellant said, in every Criminal trial, an accused person is presumed innocent until he is proved guilty. He referred this Court to Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, (3rd amendment), he said, where doubts arise in a trial, it is resolved in favour of the accused person, he relied on Section 135(1) of the Evidence Act, and the case of ALONGE VS IGP (1959) NSCC 169 at 170. He further submitted that the accused person has no duty to establish his innocence, the duty to establish guilt of the accused person remains on the prosecution. He relied on OLADOTUN VS. STATE (2010) 16 NWLR PART 1217.

Learned counsel Yusuf said, the prosecution failed to establish the essential ingredients of the offence of rape under Section 282(1) of the Penal Code.