Musa Natsaha V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment)

The Appellant was arraigned before Kano State High Court of Justice, presided over by Aisha R. D. Muhammad, J., on a one – count charge of rape which reads thus –

That you Musa Natsaha male, adult of Rogo town, Kano within Kano judicial Division on or about the 16th of July, 2007 at about 0800 hrs at Bakin Kasuwa, Rogo committed the offence of rape by an act to wit; you lured one Surrayya Muntari, a girl of 3 years into a shop by giving her bean cake (Kosai) and forcefully had sexual intercourse with her and you thereby committed an offence punishable under section 283 of the Penal Code.

Evidence was led by both the prosecution and the defence. The prosecution called three witnesses: PW1 is the prosecutrix herself; PW2 is the father of the victim (PW1); and PW3 is corporal Faruk, the investigation police officer (IPO). Three exhibits were tendered for the prosecution through PW3, viz: Exhibit A, the extra – judicial statement made by the accused person (Hereafter referred to as “The Appellant”); Exhibit B, is the hospital card issued in the name of prosecutrix; and Exhibit C is the medical report issued by the hospital after examining the victim. All the exhibits were tendered and admitted in evidence without objection.

The appellant testified in his defence as DW1 but did not call any other witness. After the close of the case for the defence, parties filed and exchanged written addresses which were respectively adopted. In a considered judgment delivered on the 30th day of March, 2012, the learned trial judge after examining all the ingredients of the offence of rape concluded in these terms –

“On the totality of the evidence adduced by the prosecution, I find the prosecution has proved the offence of rape under S.283 of the Penal Code beyond reasonable doubt against the accused person. I so hold”.

The Lower Court convicted the appellant and sentenced him to a ten – year term of imprisonment with hard labour.

The appellant has appealed to this court vide a notice of appeal containing 19 grounds of appeal. Apart from the 19th ground which is an omnibus ground, each ground of appeal consists of an extensive quotation from the judgment appeal from and each of them has particulars ranging from 3 to 9. It will amount to a waste of time to embark on their reproduction in this judgment.

Before this Court parties have filed, exchanged and adopted their briefs of argument. While the appellant has urged that his conviction be set aside and that he be discharged and acquitted, the Respondent has prayed the court to affirm the conviction and sentence.

In the appellants brief of argument, settled by Nureini Jimoh Esq., two issues have been distilled from the 19 grounds of appeal, namely –

1. Whether the learned trial judge rightfully found that the prosecution has proved her case against the accused person beyond reasonable doubt and thereby properly convicted and sentenced the accused in the circumstances of the fact of this case? Grounds 1, 2, 3, 4, 9, 10, 11, 12, 13, 15, 18 and 19
2. Whether in the circumstances of Exhibit A, the Learned Trial Judge rightfully considered and rejected the defence or case of the accused person? Grounds 5, 6, 7, 8, 14, 16 and 17.

In the respondent’s brief of argument, settled by Maliki Kuliya Umar, Esq., Learned Attorney General of Kano State, the two issues formulated by the appellant have been adopted by the respondent as the issues arising for determination in this appeal.

ISSUE ONE

It is submitted by Nureini Jimoh Esq., learned counsel for the appellant, that the ingredients of the offence of rape were not proved by the prosecution at the trial. It is also submitted that there is inconsistency in the evidence of the prosecutrix (PW1) as to what the appellant had inserted into her vagina, whether it was his finger or his penis. It is submitted that this is a fundamental contradiction or doubt in the evidence of the victim which should have been resolved in favour of the appellant.

Reliance is placed on ARCHIBONG V. THE STATE 2 NCC. It is further submitted that upon the arrest of the appellant it was alleged that his trouser was retrieved from the scene of the crime, the PW3 should have delivered the trouser retrieved from the scene of crime on which fresh sperm was found to PW4 and that failure to deliver the trouser to pw4 was fatal to the case of the prosecution. It is submitted that the evidence of PW4 did not link the appellant to the crime allegedly committed by him.