Pc. Salisu Mamuda V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

The appellant who was arraigned and charged along with five others inter-alia for rape contrary to Section 283 of the Penal Code law at the Kano State High Court, the trial Court, was found guilty under the 11th, 12th and 13th heads of charge for raping one Hindatu Sani on the 26th, 27th and 28 of October 2010 respectively. On conviction, he was sentenced to seven years imprisonment and a N50, 000.00k (fifty thousand naira) fine for each of the head of the three count charge. In default of the payment of the fine, a six month term of imprisonment was to be served for each head of the charge. The imprisonment terms were ordered to run concurrently.

Dissatisfied, the appellant appealed to the Court of Appeal, Kaduna Division hereinafter referred to as the lower Court, on a notice containing five grounds filed on the 25th June 2012. The appeal was dismissed by the lower Court.

Still aggrieved, the appellant has further appealed to this Court vide his notice dated 17th December 2015 containing three grounds.

The three issues distilled for the determination of the

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appeal in the appellant’s brief adopted and relied upon at the hearing of the appeal read:-

“i. Whether in view of the totality of facts and circumstances of this case and the evidence properly before the trial Court, the Court below was right when it confirm the decision of the trial Court. (Distilled from Ground One).

ii. Whether the contradictions in the prosecution witnesses testimonies is not material and fundamental to render their evidence unreliable and without probative value. (Distilled from Ground Two).

iii. Whether the Lower Appellate Court was right in its findings that there was no breach to the Appellant’s right to fair hearing in the conduct of the entire proceedings. (Distilled from Ground Three).”

At page 5 of the respondent’s brief three similar issues have been proffered for the determination of the appeal thus:-

“1. Whether the Court below was right to have affirmed the decision of the trial lower Court that the Respondent has proved its case beyond reasonable doubt.

2. Whether the Court below was right to have affirmed the decision of the trial lower Court that there was no material contradiction in the respondent’s case.

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Whether the Court below was right to have held that the appellant’s right to fair hearing has not been breached.”On the 1st and 2nd issues, it is argued that the respondent having failed, by the evidence on record, to establish the offence of rape as provided for under Section 282 (1) of the Penal Code, is not entitled to the concurrent conviction it secured against the appellant from both Courts below. Not even the evidence of the prosecutrix, PW5, it is contended, controverted the evidence of the appellant who, as DW5, testified that the former had consented to the intercourse between the two. Appellant’s unchallenged evidence at page 89 of the record of appeal shows clearly that the sex with PW5 was voluntary and at a fee of two thousand naira. Both Courts have erred in failing to rely on the appellant’s cogent evidence. On the authority of Ogunbayo V. State (2007) 9 NWLR (Pt 1035) 162, Iko V. State (2001) 14 NWLR (Pt 732) 221 and Fatai Olayinka V. State (2007) 4 SCN1 54, it is urged that the erroneous judgments of the two lower Courts be interfered with.The testimonies of PW1, PW2, PW3, PW4 and PW5, it is