Mu’azu V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.S.C. 

This is an appeal against the decision of the Court of Appeal, Kaduna Division hereinafter referred to as the Court below as contained in the judgment of their Lordships, Uwani Musa Abba Aji, (JCA), Amina Audi Wambai (JCA) and Obietanbara Daniel-Kalio (JCA), delivered by her Lordship Amina Audi Wambai JCA on the 31st January, 2018 affirming the conviction and sentences of the Appellant for the offences of rape and acts of gross indecency in the judgment of the trial Court, which was the High Court of Justice Jigawa State, sitting in Ringim presided over by Hon. Justice Abubakar M. Sambo delivered on the 16th day of March, 2017.

Dissatisfied with the said decision of the Court below, the Appellant filled a notice of appeal dated 12th day of February, 2018 containing 11 grounds of appeal urging this Court to acquit and discharge the Appellant.

The facts found and affirmed by both lower Courts are as follows:

The two counts charge against the Appellant before the trial Court are rape contrary to the provisions of Section 282 (1) (e) of the Penal Code Law, Cap. P3, Laws of Jigawa State, Volume 3, 2012 as well as the offence of the act of gross indecency contrary to the provisions of Section 285 of the Penal Code Law, Cap. P3, Laws of Jigawa State, Volume 3, 2012.

​The Respondent called four (4) witnesses who testified as P.W.1, P.W.2, P.W.3 and P.W.4 respectively. The Complainant, Asisa Sirajo, testified as P.W.1. She was seven (7) years old when she gave evidence. The incident happened a year before when she was six years old. After supplying satisfactory answers to preliminary questions placed before her on her education, knowledge about God, the performance of religious rites, the hereafter as well as her parents, the Court decided that she was fully aware of the consequences of her testimony and allowed her to give evidence. The trial Court was satisfied that she understood and knew the nature of an oath in accordance to the provisions of Section 209 of the Evidence Act. She testified that she knew the Appellant and that on the day in question, while she was baking clay in the company of her relatives including Walid, Kadija, Fati, Ummi and Hauwa. While her sisters were inside the house of one Sadiya, the Appellant called her to collect an iron material from an uncompleted building. She also testified that after she entered the uncompleted building, the Appellant who had followed her there pinned her down and inserted his penis into her vagina and her mouth. She further testified that when she shouted for help, one Abba came to the scene of crime and saw them. He then ran to inform her mother. After the Appellant saw Abba, he threw her out of the uncompleted building. The testimony of P.W.1 under cross-examination remained unshaken. She further testified under cross-examination that the Appellant told her that if she refused to follow his instruction to fetch him the iron in the building, he would beat her.

Musa, also known as Abba who testified as P.W.2 was an eye witness to the crime and he testified as a ten (10) year old. The trial Court also satisfied itself that he knew the nature of an oath. P.W.2 swore that he saw the Appellant pin down P.W.1 and sexually assaulted her in the uncompleted building. His evidence was unshaken and he maintained that he was at the scene of crime. P.W.3 was the complainant’s father who reported to the Village Head, who in turn reported to the Police. The medical report and the hospital prescription card of the complainant were tendered as Exhibits A & B respectively. P.W.4, the I.P.O took the confessional statement of the Appellant, the Hausa version and English translation were admitted as Exhibits D1 & D2 respectively.

Learned Appellant’s Counsel in the brief settled by Garba Abubakar Esq. identified a sole issue for determination to wit:

1. Whether having regards to the applicable laws vis-a-vis the facts before it, the lower Court was right in dismissing the appeal and went ahead to affirm the conviction and sentences of the Appellant as entered by the trial Court on the two-count charge against the Appellant.

In the Respondent’s brief settled by Dr. Musa Adamu Aliyu, Hon. Attorney General of Jigawa State, two issues were identified for the determination of this appeal as set out below:

1. Whether the lower Court was right in affirming the judgment of the trial Court convicting and sentencing the Appellant for the offences of rape and act of gross indecency as well as holding that the proceedings before the trial Court was procedurally valid with evidence properly evaluated.
2. Whether the lower Court was right in holding that trial Court has accorded the Appellant his right of fair hearing.

I will adopt the sole issue for determination as identified by the Appellant’s counsel.

Learned Appellant’s counsel’s main complaint is against a supposed procedural irregularity during the course of the trial. The Complaint is that the learned trial Judge who was sitting at Ringim Judicial division and who started hearing the case at Ringim unilaterally transferred the case to Dutse where he was mandated to serve as vacation Judge in order to complete the trial.

I agree with the Hon. Attorney General of Jigawa State that it is now trite that where a Judge seats in two different divisions in determining the same cause, such a move is a mere administrative issue which cannot oust the jurisdiction of the Court. See ITAYE V. EKAIDERE (1978) LPELR-1558 (SC), see also EGBO V. AGBARA (1997) LPELR-1036 (SC) where this Court stated per Iguh JSC as follows:

“… A Judge of a State High Court having jurisdiction in one of the Judicial Divisions of that State does not lose the jurisdiction to sit and adjudicate on a matter by the mere fact of his transfer to another Judicial Division of the same State. I also agree that issues of Judicial Divisions, transfer order and like matters being strictly administrative, do not go to jurisdiction…”

In fact, in the circumstances of this case, Hon. Justice Abubakar M. Sambo should be commended and not vilified for His Lordship’s initiative to ensure speedy dispensation of justice in a criminal matter. Thus, there was no want of fair hearing in the manner the proceedings at each date of adjournment were conducted either at Ringim or Dutse since at no time was evidence led in the absence of the Appellant and/or his Counsel.

The Appellant’s counsel further complained about a myriad of other supposed defects in the procedure adopted by the trial Court and affirmed by the Court below. These include complaints of documentary hearsay evidence being admitted, contradictory evidence being admitted, and no proof of penetration by the Appellant to complete the offence of rape.

​The well settled principle of law is that the guilt of a Defendant charged with the commission of an offence can be established by any of the following:

1. The confessional statement of the Defendant.
2. Circumstantial evidence.
3. Evidence of an eye witness.

See OKANLAWON V. STATE (2015) 17 NWLR PT. 1489 Pg. 445 at 479, Paragraphs B-C; ALUFOHAI V. STATE (2015) 3 NWLR Pt. 1445 Pg. 172, BILLE V. STATE (2016) 15 NWLR Pt. 1536 Pg. 363 at 381 and DELE V. STATE (2011) 1 NWLR Pt. 1229 Pg. 508.

I agree with the Court below on the admissibility of Exhibits A & B tendered from the Bar, that in view of the fact that the exhibits were not inherently inadmissible, and the Appellant’s counsel having failed to object to their admissibility when tendered from the Bar ab initio, they were properly admitted pursuant to Section 55 (1) of the Evidence Act, 2011 and Section 249 (3) & 250A of the Criminal Procedure Code Jigawa State. The combined Sections aforementioned provides that the medical reports – Exhibits A & B, can be tendered and admitted in evidence without the maker, the medical officer, testifying; once the report has been previously served on the defendant ‘at least 10 clear days before the day appointed for the hearing’. The probative value to be attached to the medical report in the absence of the doctor who prepared it is another issue.

Learned Appellant’s counsel also complained that according to P.W.1, the incidence happened on the 18th November, 2015 at page 6 of the record, while the content of the charge sheet at page 1 revealed that it happened on 19th November, 2015 and Exhibits A1 & A2 said it happened on 20th November, 2015.

It is only where the contradictions are on material evidence that it adversely affects the case of the prosecution. The slight difference in dates does not affect the veracity of the incident which constituted the offence as told by the witnesses. See IGBINOWAYA V. STATE (2019) ALL FWLR Pt. 996, Pg. 905 at 933, paras. A-C.

I agree with the Court below on the issue of whether or not penetration took place. The argument of the Appellant’s counsel is that both P.W.1 and P.W.2 would not know whether there was penetration or not. At pg. 214 of the record, the Court below stated as follows:

“A study of the evidence on record and the applicable law revealed that there is really no contradiction between the evidence of P.W.1 and P.W.2 on the fact of penetration or whether the Appellant had sexual intercourse with the victim. The unambiguous evidence of P.W.1 and P.W.2 earlier reproduced are in unison that the appellant had both sexual and oral intercourse with P.W.1. There is also no contradiction between the evidence of P.W.1 and P.W.2 and the contents of Exhibits A & B on the fact of penetration as exhibits A and B state that there was visible vaginal orifice smeared with semen which supports at least a slight or partial penetration sufficient to prove sexual intercourse.”

Furthermore, in the case of rape in a rural area, it is not compulsory that the medical report of rape be tendered. In the circumstances of this case, in a rural area where there are no special facilities to examine and to assemble a proper rape kit, the evidence of the minor or victim corroborated by a credible eye witness is sufficient. That is not to say, tendering a medical report through a medical doctor does not improve the case of the prosecution, the point is that not tendering a medical report through a medical doctor does not vitiate the case of prosecution. See AMEH V. STATE (2018) 12 NWLR Pt. 1632, Pg. 99 at. 120, paras. A-C, 126. paras. D-E and KIWO V. STATE (2020) 7 NWLR Pt. 1722, Pg. 164 at 188, paras. F-H.

It is not compulsory but desirable that the doctor who prepared a medical report should testify in Court before the report can be tendered in evidence and utilized by the Court. See ALI V. STATE (2020) LPELR-53409 (SC); ACHUKWU V. THE STATE (2015) 6 NWLR Pt. 1456 Pg. 125 and MOHAMMED SARKI FULANI M. V. THE STATE (2018) LPELR-45195 (SC).

The only instance where the admissibility of the report can be challenged is where it is alleged that the report bears the signature of somebody else other than that of a medical practitioner. By Section 55 (1) & (2) of the Evidence Act 2011, the production of a medical report by either party signed by a medical officer may be taken as sufficient evidence of the facts stated in it. See POSU V. THE STATE (2011) 3 NWLR Pt. 1234 Pg. 393 SC.

Where the Administration of Criminal Justice Act has not been domesticated by the state, Section 249 (1) & (2) of the Criminal Procedure Code is applicable here. See EDOHO V. THE STATE (2010) ALL FWLR Pt. 530 Pg. 1262, (2010) 14 NWLR Pt. 1214 Pg. 651; CHIMENEM WOWEM V. THE STATE (2021) LPELR-53384 (SC).

In this case, the evidence of rape was firmly proved by P.W.1 and well corroborated by P.W.2 and Exhibits A & B. The evidence on record is clear. The complainant as P.W.1 gave lucid and believable evidence of what the Appellant had done to her which amounted to rape and indecent assault. P.W.2, another child also gave clear eyewitness testimony of the crime.

Corroborating evidence is defined by the learned authors of Black’s Law Dictionary 5th Ed as evidence supplementary to that already given and tending to strengthen or confirm it; additional evidence of a different character to the same point. This definition was adopted by the Supreme Court in Stephen v. State (2013) 8 NWLR Pt. 1355 Pg. 153.

The Supreme Court has stated that the nature of the corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence and the accused person committed the offence and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission – Achabua v. State (1976) 12 SC Pg. 63, Ubierho v. State (2005) 5 NWLR Pt. 919 Pg. 644.

In State v. Gwangwan (2015) LPELR-SC 504/2012, the Supreme Court stated that corroboration means or entails the acts supporting or strengthening the statement of a witness by fresh evidence of another witness and it does not mean that the witness corroborating must use the exact or very like words and this is because evidence that is regarded as corroboration is clearly not a repetition of the evidence sought to be corroborated, otherwise there will be no need for the original evidence.

There is nothing on the face of the record that shows that the trial Court saddled with the duty of evaluating admissible evidence and ascribing probative value to same did so perversely. The Appellant’s counsel did not convince the Court below and has not been able convince this Court that even if there is any procedural irregularity, it has occasioned miscarriage of justice. This is an open and shut case wherein the Appellant initially confessed to the crime and asked for forgiveness from the authorities.

I find no merit in this appeal. I affirm the judgment of the Court below which affirmed the conviction and sentence of the trial Court. Appeal Dismissed.

SC.442/2018