Shuaibu Isa V Kano State (2016)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The appeal herein is against the decision of the Court of Appeal, Kaduna Division delivered on the 4th June, 2012 in appeal No. CA/K/247/2010. The appellant, at the Court below appealed against his conviction and sentence by the High Court of Kano State sitting at Kano on a charge of rape as follows:-

CHARGE:-That you Shuaibu Isa “m” of Unguwa Uku Quarters Kano within Kano Judicial Division on U/5/2005 at Unguwa Uku committed rape on one Aigha Ado “f” of 8 years old and thereby committed an offence punishable under Section 283 of the Penal Code.

STATEMENT OF FACTS:-

Pursuant to Section 211 of the 1999 Constitution and Section 7 of the Criminal Procedure Code, Cap 37, Laws of Kano State, the respondent proffered the foregoing lone count charge of rape against the appellant punishable under Section 283 of the Penal Code.

The prosecution listed seven (7) witnesses but called six (6) including the mother of the prosecutrix and a medical doctor from Aminu Kano Teaching Hospital Kano. The appellant defended himself. The proceedings commenced in the trial Court with the affirmation of one Abubakar Gezawa as

interpreter of the proceedings from English into Hausa and vice-versa.

The evidence in the trial Court started off with PW1 (the victim of the rape). She was twelve years old at the date of giving evidence and affirmed to speak the truth. She narrated her ordeal which dated back to three years prior to the date of giving evidence; that on her way from her mothers place at Unguwa Uku, she met the appellant who pleaded and gave her money to buy him pure water and which she obliged him as requested; that upon bringing the pure water, the appellant held her hand, dragged her to an uncompleted building, removed her wrapper and pants.In her own words as recorded by the trial Court. “He also removed his trousers and he put his penis into my vagina. I then shouted and someone came to my aid, and we, that is myself and the accused were taken to the police station,” See pages 6 – 7 of the record.

PW1 was cross examined by the defence; the learned trial judge also in further cross examination asked the following question:-

“Court to PW1: What made you to shout attracted the person who came to your aid

Witness (Pw1): I shouted because the (sic) of penis open penetration.”

See page 6 of the record.

PW2 is one Ismaila Zubairu who upon receiving an information of the suspicious criminal act entered the uncompleted building where he saw both the appellant and Pw1; that which the appellant’s trousers were at the knee level with him trying to dress up, the victim had her pants down; that the witness met both the appellant and PW1 facing each other while standing. The witness testified also that he refused to accept the appellant’s gift of money but insisted that both the appellant and PW1 were brought out and exposed where people were gathered; that the appellant and his victim were subsequently taken to the police station. The witness was also cross examined.

PW3 is the mother of the PW1 (the victim). She was told the incident and that was hearsay. She went with PW1 to the hospital and in company of the appellant. The witness was cross examined.

PW4 is the Investigating Police Officer (IPO). He conveyed PW1 the victim, to Aminu Kano Teaching Hospital where she was admitted. The appellant volunteered a statement which was recorded by the witness in English and translated same into Hausa language and the appellant agreed and signed.

The statement was confessional wherein the appellant admitted having committed the offence of rape alleged. This was endorsed by a superior Police officer the person of CSP Yusuf Sani who also signed the statement. While Exhibit ‘A’ was the medical report, Exhibit ‘B’ was the appellant’s confessional statement. The witness PW4 was also cross examined.

PW5 is the Medical Doctor who examined PW1 and issued a report Exhibit ‘A’. In his evidence this was what he said of Pw1’s hymen “In this case it is incompletely broken which suggest partial penetration.” It is also the witness’s evidence that he saw a small discharge from the vagina of PW1 but found no organism or sperm cells; that the HIV test also proved negative. The witness was cross examined on his evidence.

PW6 is the 2nd Investigating Police Officer (IPO) who took another statement from the appellant. The statement was admitted as Exhibit ‘C’.

THE DEFENCE

The appellant testified in his own defence as Dw1 and denied knowing PW1 and the entire allegation and incident. His testimony was that PW1 solicited for money and upon his refusal to oblige her, a man met them and inquired to know what they were doing; that the

man held him, (appellant) called his other friends who beat up the witness and was eventually taken to the police station in a vehicle.

Under cross examination the witness identified PW1 as the alleged victim, who begged him for money. He admitted being interrogated by PW4 at Mariri Police station.

Sequel to appraising the evidence for both the prosecution and the defence, the learned trial judge found the appellant guilty as charged and convicted him accordingly. The Court, following the allocutus, proceeded and sentenced the appellant to a ten year term of imprisonment commencing from the date of the commission of the offence charged. The Court also imposed a fine of N10,000.00 on the appellant and in default of payment of which he was to serve an additional one year jail term.

An appeal to the Lower Court was dismissed by a unanimous decision of that Court which affirmed the judgment of the trial High Court. The appellant was dissatisfied again with the outcome of his appeal and hence his filing the notice of appeal to this Court on the 4th July, 2012 and containing five grounds.

In compliance with the Rules of this Court, briefs were duly filed and exchanged

between parties. While the appellant’s brief and reply brief were settled by Tuduru Ede Esq. on the 28th February, 2013 and 11th June, 2014 respectively, that of the respondent was also settled by Mukhtar Sani Daneji, Solicitor-General/Permanent Secretary Kano State on the 23rd October, 2013.

On the 5th November, 2015 when the appeal came up for hearing, learned counsel representing the respective parties adopted and relied on their briefs of arguments. On the one hand, Mr. Ede who represented the appellant urged in favour of allowing the appeal. On the other hand and on behalf of the respondent however. Mr. Daneji urged for a dismissal of the appeal as lacking in merit.

The two issues formulated by the appellant’s counsel are as follows:-(a) Were the learned Justices of the Court of Appeal not wrong holding that the charge of rape was proved Grounds 1, 2, 5.

(b) Were the learned Justices of the Court of Appeal not wrong in holding that the question put to the witness Pw1 had no negative impact on the trial of the appellant Ground 3.

Ground 4 of the notice of appeal was abandoned by the appellant’s counsel and same is hereby struck out. It is noteworthy to say

at this point that the two issues formulated by the appellant are also adopted verbatim by the respondent.

1st Issue:-

It is the contention on behalf of the appellant that the charge of rape against him was never proved and hence the complaint that the learned Justices of the Court of Appeal were clearly wrong when they held at page 139 of the record thus:-“I hold that the charge of rape was proved beyond reasonable doubt against the appellant”

It is the counsel’s submission that to prove the offence of rape, there must be evidence of penetration as an essential element, and which must be linked to the accused, that is the appellant this case; that in the instant appeal, the evidence offered by the prosecution in proof of penetration was those by the PW1 and PW5 which totality, counsel argues could have pointed to rape, but that it did not link the appellant to raping of the PW1. Furthermore, counsel submits as wrong for the Court to have relied on those pieces of evidence as proof of penetration by mere insertion of penis into PW1’s vagina. Counsel cites the authority in the case of Okoyomon V. The State (1973) 1 SC 21, (1973) 1 NMLR 392, 296 297 per

Elias CJN, that insertion of penis into vagina is not proof of penetration. He submits therefore that PW5’s evidence ought to have linked the appellant to the alleged breaking of the hymen; that the only credible means of linking the appellant with the partial penetration would have been through the whitish discharge which opportunity had been lost.

In further submission, the learned counsel for the appellant, opposed vehemently the evidence of PW1 on the ground that it was never corroborated by anything or by any witness; that while PW5 did not link the appellant to the offence, PW2 only saw appellant’s trousers at his knee level. The counsel concluded on PW3’s evidence as hearsay and that whereas, PW4 who took the Hausa version of appellant’s statement never produced it in Court but tendered exhibit ‘B’ while PW6 tendered exhibit ‘C’; that the pieces of evidence adduced by the prosecution are not corroborative of each other within the meaning of Section 178(5) of the Evidence Act. Counsel urged that the issue should be resolved in favour of the appellant.

Submitting in response and on behalf of the respondent, the learned counsel Mr. Daneji re-iterates as

proved that appellant is not disputing that the victim (Pw1) was raped; rather that the fact of partial penetration leaves to question the appellant’s link to the commission of the crime Counsel relates to exhibit ‘A’, the medical report which he submits shows clearly that with the breaking of the hymen, the evidence and surrounding circumstances all point to the fact that the appellant and nobody else was responsible. Copious reference was made to the testimonies of PW1 and PW2; that contrary to the argument on behalf of the appellant, the whitish discharge is not the only reason linking him (appellant) with the partial penetration but that there is sufficient corroborative circumstantial evidence that makes him culpable; that the two cases of Okoyomon v. State (1973) 1 SC 21 (1973) 1 NMLR 292, 296 297 per Elias CJN and Jos N.A. Police V. Allah Na Gani (1968) NMLR 8 were quoted out of con and do not support the case of the appellant as each case is to be determined on its own peculiar circumstance. Further reference in support is, again the case of Posu V. State (2011) 2 NWLR (Pt.11234) 393; that the Lower Court was right when it held that there

was penetration going by the evidence of PW1 and PW5. On proof of corroboration counsel cites with great reliance on the case of Dagayya V. State (2006) 7 NWLR (Pt 980) 367 SC; that there were concurrent findings in respect of both penetration and corroboration and that the appellant has failed to show that the concurrent findings of facts are either unsupported by evidence or are perverse so as to make it necessary for the Court to set aside same, Counsel cites again the case of Egwumi V. The State (2013) 2 SCNJ 875; that the said issue should in the circumstance be resolved against the appellant.

The act of rape is by nature unlawful because the concept involves an aggressive carnal knowledge of a female without her consent. Consent in this con must be devoid of any form of external influence. A child who is under age is not however capable of giving consent. Rape is by nature grave, devastating, traumatic; it also reduces the totality of the victim’s personality. Several definitions given to rape are all characterized by an absence of consent as a common feature. A number of such definitions include those arrived at by this Court in the case of Posu V.

State (supra) at page 414 where Fabiyi (JSC) held same as:-”An unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly and against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent.”

Adekeye (JSC) also at page 416 sees rape in legal parlance as: “an unlawful carnal knowledge of a woman or girl without her consent or with her consent if the consent is obtained by force or by means of threat or intimidation of any kind or by fear or harm, or by means of false and Fraudulent representation as to the nature of the act or in the case of a married woman by personating her husband.”

In summary therefore, rape can be interpreted as an unlawful carnal knowledge or non-consensual sex; that is, penetration without consent.

The law is settled and well grounded that the prosecution has the burden and duty to prove the accused person guilty of the following ingredients in order to sustain the conviction of the offence of rape:

(a) that the accused had sexual intercourse with the prosecutrix;

(b) that the act of sexual intercourse was done

without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation;

(c) that the prosecutrix was not the wife of the accused;

(d) that the accused had the mensrea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not.

(e) that there was penetration.

See Ogunbayo V. State (2007) 8 NWLR (Pt 1035) 157; Upahar v. State (2003) 6 NWLR (pt 816) 230; State V. Ojo (1980) 2 NCR 391; Okoyomon V. State (1973) 1 SC 21; State V. Anolue (1983) 1 NCR 71 and Iko V. State (2001) 14 NWLR (Pt.732) 221.

In proof of rape therefore, the most essential ingredient of the offence is penetration, the extent no matter how slight will serve sufficient proof. It is well accepted and settled that penetration, with or without emission, is sufficient even where the hymen is not ruptured. The slightest penetration has served as sufficient to constitute the act of sexual intercourse. Again see Iko V. State, Ogunbayo V. State and State V. Ojo all under reference (supra) also Jegede V. State (2001) 14 NWLR (Pt.733) 264.

At page 139 of the

record of appeal, their Lordships at the Court below held and said:-

“Under cross-examination, the appellant gave a graphic and lucid account of his journey and of his co-travellers to the hospital. It beats one’s imagination how a person not in his proper senses would give such a clear, lucid and detailed account of such an event. It is no wonder; the learned trial judge did not believe him. I do not believe him either. His account during the examination – in chief is nothing other than an after – thought.I hold that the charge of rape was proved beyond reasonable doubt against the appellant.”

The appellants counsel in his submission concedes that in order to prove the offence of rape, penetration is an essential element and which must be linked to the accused person; that the totality of the evidence by PW1 and Pw5 on the insertion of penis into vagina is not conclusive proof of penetration. Also that the contents of exhibit ‘A’ (the medical report) issued by Pw5 as well as the evidence of Pw1 could have pointed to rape, but that they all fell short of linking the appellant to the rape of Pw1.

In proof of penetration, the law is trite as submitted by respondent’s

counsel that partial or incomplete penetration is sufficient proof of the offence of rape and authorities both at Common Law and also under our statutes are in unison on this point. The authorities cited by the learned counsel for the appellant therefore, all, support the case of the Respondent on the foregoing principle as enunciated. A prominent authority in support is the case of Ogunbayo V. State (supra) where this Court said thus at pages 182 182:- “The important and essential ingredient of the offence of rape is penetration. Sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. Emission is not a necessary requirement. Any or even the slightest penetration will be sufficient to constitute the act of intercourse. Thus, where penetration is proved but not of such a depth as to injure the hymen, it will be sufficient to constitute the crime of rape. Therefore, proof of the rupture of hymen is unnecessary to establish the offence of rape.”

In the instant appeal, the evidence of Pw1 (the prosecutrix), PW2, Pw5 and Exhibit ‘A’ are very relevant. PW1 for instance said thus in her evidence:-

“He held my hand and

dragged me to an uncompleted building.He removed my wrapper and also removed my pant. He also removed his trouser and he put his penis into my vagina. I then shouted.”

Pw2 also gave evidence and confirmed the year of incident as stated by Pw1. The witness in his statement in chief said.”I went and saw the accused person and the girl (Pw1). The trouser of the accused was at the knee level and was trying to dress up, while the girl had her pant down. As at the time I met them they were both standing facing each other. The accused person attempted to give me some money but I refused to accept. I brought the accused and the victim out, by which time people have gathered. They asked the accused whether he had sex with the girl, and he said yes.”

Pw5 the Medical Doctor in his testimony also said:-

“When we examined the vagina (sic) of the girl the main covering was found to be incompletely broken in the centre. Our conclusion is that the victim was raped.”

It is imperative to state that the evidence of Pw1 is sworn on oath. The record shows that the learned trial judge conducted proper investigations on the prosecutrix ( a minor) before allowing her to give evidence on

oath after finding her intelligent enough to understand the proceedings and also appreciating the implication of oath taking. It is noteworthy to restate that the prosecutrix, who was raped at the age of nine years, gave evidence at the time she was twelve years of age. Evidence is borne out to that effect on the record and which was unchallenged.

In this appeal, the appellant’s major grouse challenges the absence of corroboration on the evidence by PW1. In other words, that assuming (without conceding) that penetration was proved, the evidence of PW1 linking him appellant) to

the crime has not been corroborated. The law is trite and well settled that Pw1, though a minor needed no corroboration of her evidence which was sworn on oath. See again the case of Ogunbayo v. The State (supra) where it was held that a sworn evidence of a minor requires no corroboration.

It is intriguing that inspite of the overwhelming evidence adduced by the prosecution, the appellant has persistently held out and resisted that the prosecution had linked him with the offence of rape proved.

On a careful perusal of exhibit ‘B’ and ‘C’, the statements made by the accused person at both Mariri

Division of the Nigeria Police and the State C.I.D Bompai Kano, the revelation becomes obvious that the appellant confessed to raping the victim (Pw1) when in exhibit ‘B’ at the last line on page 1 to line 3 of the second page he said:- “… but when I put my penis into her private part, it did not go inside as I want, then I removed my penis because I did not enjoy the situation.”

Also in exhibit ‘C’, at page 2 lines 7 – 10 the appellant had this to say: “I then dragged her into the uncompleted building. She removed one leg of her pant, while I removed the other one. She then stands on a block, while I tried to have sex with her, but I could not penetrate into her vagina. When I heard she was about to cry, I then left her and gave her N40.00 she demanded.”

On the question of corroboration sought by the appellant, same cannot be at large, but should be defined in the con of the case of Odofin Bello V. The State (1966) 1 All NLR 223 at 230 wherein it was held that:-

“Corroborative evidence is evidence which shows or tends to show not merely that the crime has been committed but that it was committed by the accused.”

It is the appellant’s contention that

as a minor the victim’s evidence needed corroboration. With Pw1’s evidence having been sworn, the law dictates and is settled that such evidence of a child needs no corroboration for the Court to act thereon. Again see Daggaya V. State (2006) (Supra). In the circumstance, the appellant is wrong therefore in contending that the testimony of Pw1 had to be corroborated.

I seek to say further that for all intents and purposes, the totality of Exhibits ‘B’ and ‘C’ is a corroboration of the evidence of Pw1, wherein the appellant confessed and maintained that he had sexual intercourse with the victim (Pw1). In other words in taking exhibits ‘B and ‘C’ read together, the totality will give one explanation, that there was indeed Penetration even though it’s not complete, In consequence, the cases cited by the appellant on the proposition that there has to be complete penetration do not support the principle that penetration even if slight would ground conviction. In the case of Jegede V. The State (supra), it was held that “whether the prosecutrix was a minor or an adult, there must first be proof of penetration and that penetration of the vagina must be linked with the

appellant.” Belgore, JSC (as he then was)]. Penetration however slight is sufficient and it is not necessary to prove an injury or the rupture of the hymen to constitute the crime of rape – Kalgo, JSC in Iko V. The State (supra).

The two Exhibits ‘B’ and ‘C’ are voluntary statements made by the appellant, who did not object to their admissibility in evidence. As rightly held by the two Lower Courts, conviction on them was proper without further corroboration. See the case of Emeka V. State (2001) 5 M.J.S.C P1 at 5. The fact that the victim was under the age of 14 years when the criminal act was committed is not contradicted and therefore deemed admitted on the authority of the case of Ukegbu V. I.G.P. (2003) MJSC Page 13 at 19.

The third Ingredient is the proof that the woman or victim in question is not the wife of the accused person. On a graphic analysis of the evidence by the appellant as Dw1, it is a confirmed fact that his testimony under cross examination at page 21 of the record is not contradicted that Pw1 is not his wife.

The last Ingredient to prove has to do with the question of penetration which had been proved scientifically through the

the evidence of Pw5, the Medical Doctor whose portion of his testimony reads thus:- ”The main covering of the hymen was found to be broken incompletely in its centre. Between the incompletely broken hymen and the surrounding skin, a small discharge was seen. Our conclusion was that rape was committed.”

Under cross examination by the defence, Pw5 maintained thus: ”In this case the hymen was incompletely broken which suggest partial penetration.”

By virtue of the provision of Section 27(a) of the Evidence Act, a confession, if made voluntary is deemed to be relevant fact as against the person who made it.

The law is well settled also that for a confession to amount to an admission of guilt, it must be positive, direct and unequivocal as to the commission of the offence for which the accused is charged. See Patrick Joven and Ors. V. The State (1973) 5 SC 17.

If an accused person does not object when his confessional statement is being tendered, the only reasonable conclusion is that it was made voluntarily. See Bello Shurumo V. the State (2010) 19 NWLR (Pt 1226) 73 wherein it was held that the failure to object the two confessional statements when they were tendered and

admitted as exhibits was held as conclusive evidence that they were both made voluntarily. This is more so when a counsel stands by and allows exhibits to sail smoothly through without any objection.

In the case at hand, the learned counsel sought and obtained the permission of the trial Court to confer with the appellant, when the prosecution sought to tender exhibit ‘B’ evidence. The counsel thereafter did not object to the admissibility of the confessional statement of his client which was admitted as Exhibit ‘B’. In respect of exhibit ‘C’ and contrary to exhibit ‘B’, however, the counsel simply admitted same in evidence as an Exhibit without making any reference to his client.

At page 137 of the record, their Lordships of the Lower Court per Belgore, JCA in his lead judgment therefore had this to say:-

“I have gone through both Exhibits ‘B and ‘C’ and I found them to be positive, direct and unequivocal as to the commission of the offence of rape for which the appellant was charged. I also found the contents of Exhibits ‘B’ and ‘C’ to be consistent with the evidence of Pw1 and Pw2 and Exhibit ‘A’. Exhibit ‘B’ and ‘C’ corroborate the evidence of Pw1 and link

the appellant to the offence for which he was charged because the two exhibits give credence to the evidence of Pw1 and Pw2 that the appellant committed the offence of rape. The two exhibits effectively and effectually connectthe appellant with the offence of rape for which he was charged and convicted.”

I cannot agree more with the findings of their learned Lordships supra but also endorse their view held and resolve the 1stissue against the appellant.

The 2nd issue relates to the question and answer session put by the Court to Pw1. In other words, it is alleged on behalf of the appellant that the view held by the Lower Court at page 143 of the record is contrary to its subsequent finding which the counsel submits did work a miscarriage of justice against his client and therefore should void the conviction and sentence imposed.

At page 143 of the record, the Lower Court held thus and said:-“On the other hand, it was wrong for the learned trial judge to have interjected after the cross examination without allowing the defence to further cross examine the witness on the point.”

Closely following also and in another tone, their Lordships proceeded and concluded

that:- “the question and answer added no value to the case of the prosecution.”

It is the contention of the learned counsel for the appellant that the Lower Court having held that the learned trial judge descended into the arena and therefore proceeded to expunge the offending question and answer session held, ought to have also held that there occurred a procedural unfairness and injustice meted to the appellant; that the Lower Court was wrong when it failed to see the miscarriage of justice, which counsel argues is contrary to Section 237 of the Criminal Procedure Code and also Section 223 of the Evidence Act. The counsel cited in support the cases of Akinfe V. The State (1988) 3 NWLR (Pt.85) 729; R. V. Igwe (1959) 5 JSC 206 and Karim V. Nigerian Army (2002) 4 NWLR (Part 758) 716. Counsel submits that in the circumstance, the question and answer worked great disadvantage to the appellant and resulted into the dismissal of his appeal. In other word’ that the session resulted in a breach of the appellant’s right to fair hearing and this is without regard to how well conducted the proceeding was, In summary, counsel urges that the issue should be resolved favour of

the appellant and that the appeal should be allowed while the conviction and sentence of the appellant should be set aside.

In response to the second issue raised, the learned counsel for the respondent submits a contrary view and argues vehemently that the question and answer session complained against did not occasion any miscarriage of justice as it did not add any value to the case of the prosecution. Counsel urged that the issue should also be resolved against the appellant.

The issue under consideration deals with the question put by the learned trial judge to the witness Pw1 and which situation is not the same as in the case of Karim, cited by the appellant’s counsel (supra) where it was held that the trial Court went on a voyage of discovery in the examination of the prosecution and the defence witnesses.

To the contrary, the case at hand, the single question put by the trial Court did not in the circumstance occasion any miscarriage of justice. For all intents and purposes, even if the singular question and answer were to be discarded, the case of the prosecution would still remain intact as there is enough evidence upon which to convict the

accused/appellant. The question and answer session in contention between the Court and Pw1 went as follows:-”Court to Pw1: What made you to shout attracted (sic) the person who came to your aid

Witness (Pw1): (sic) I shouted because of the penis (sic) penetration.”

For purpose of comparison also, I wish to make reference to the testimony of PW1 in chief wherein she said affirmatively as follows on her ordeal from the appellant.

“He also removed his trouser, and he put his penis into my vagina, I then shouted, and someone came to my aid……..”

The trial Court’s judgment spans over pages 48 – 75 of the record and at page 74 this is what his Lordship said:-

“In the end I am quite satisfied that the prosecution has proved the offence of rape under Section 283 of the Penal Code against the accused person beyond reasonable doubt. The accused Shuaibu Isa is hereby convicted as charged.”

The Lower Court, while endorsing the view held by the trial Court had this to say also:-”I have gone through the entire record and could not find where the learned trial judge made use of this question and answer. Learned counsel for the appellant also failed to pin point where it was

put into use in convicting the appellant…”

I have no reason to depart from the erudite conclusion arrived thereat by the Lower Court. In other words, the learned counsel for the respondent had rightly submitted that, contrary to the assertion by the appellant, the answer to the question posed by the trial Judge was not different from what the witness Pw1 said in her evidence in chief, which clearly pointed to the fact that it was the insertion of the penis by the appellant into her vagina that caused her to shout. Therefore, the question and answer did not occasion any miscarriage of justice as wrongly conceived by the appellant’s counsel. In other words, it did not add any value to the prosecution case as rightly pointed out by the Lower Court.

I wish to state in passing however that the error of interjection after cross-examination which, the Lower Court ascribed to the trial Court was as to the procedure adopted which did not affect the substance and justice of the case whatsoever. In other words, whether or not the question/answer session is expunged, the criminality of the appellant had conclusively been proved beyond reasonable doubt. The said 2nd issue is

also resolved against the appellant.

With the two issues having been resolved against the appellant, the appeal is devoid of any merit and is hereby dismissed.

The concurrent findings of the two Lower Courts in convicting and sentencing the appellant are also affirmed by me. The sentencing of the appellant Shuaibu Isa to 10 years imprisonment beginning from the 17th of May, 2005 is hereby affirmed. He should also pay a fine of N10,000.00 indefault of which he is to serve a further one year jail term.

Appeal is hereby dismissed while the concurrent conviction and sentence of the appellant are affirmed.

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