The State V. Muhammed Masiga (Tsolo) (2017)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

This is an appeal against the Judgment of the Court of Appeal, Kaduna Division in criminal appeal no CA/K/160/C/2012 delivered on the 20th December, 2012 by which said Judgment, the Court set aside the conviction and sentence passed on the Respondent by the High Court of Jigawa State sitting in Hadejia.

SUMMARY OF FACTS

The brief facts of the case are that the Appellant on 16th day of March, 2010 at Yelleman Hausawa Village in Kaugama Local Government Area of Jigawa State was alleged to have had an unlawful sexual intercourse in an uncompleted building with one Amina Salihu a girl aged ten years who was an imbecile by luring her with sweets.

The trial Court in its Judgment delivered on 13th March, 2012 found the respondent guilty and sentence him to a fine of #20,000.00 (Twenty Thousand Naira) only or 6 years imprisonment for the offence of rape and #10,000.00 (Ten Thousand Naira) only on the offence of attempt to escape from lawful custody or 3 years imprisonment.

The Respondent having not been satisfied with the Judgment of the trial Court above, appealed to the

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Court of Appeal sitting in Kaduna. In its Judgment, the lower Court set aside the decision of the trial Court, discharged and acquitted the Respondent.

This appeal is against that Judgment. In accordance with the Rules of this Court, briefs were filed and exchanged by parties. The Appellant’s brief was settled by one Yakubu A. H. Ruba. Esq., and filed on the 14th August, 2013.

The Respondent brief of argument was however settled by one Mustapha Bulama Esq., and filed on the 2nd October, 2013.

For the determination of this appeal, Learned Counsel for the Appellant formulated 3 issues and urged the Court to allow the appeal.

“1. Whether the Court below was right to have set aside the Judgment of the lower trial Court having regard to the fact that the Respondent was convicted based on his confessional statement (Grounds I and II).

2. Whether the lower Court was right to have held that the retracted confessional statement of accused/respondent did not pass the test that could have elevated it to a confessional statement.
3. Whether the lower Court was right to have held that the lower trial Court neither considered the defence put forward

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by the accused or evaluate the evidence of the prosecution.”

On the other hand, Learned Counsel for the Respondent formulated 2 issues for determination and urged the Court to dismiss the appeal.

1. Whether the learned Justices of the Court below were wrong when they allowed the appeal before them on the ground that the totality of the evidence adduced by the prosecution before the trial Court fell short of discharging the burden of Proof required by the law in Criminal proceedings. Grounds 2,3,4,5 and 7.
2. Whether the learned Justices of the Court below were right when they held that the failure of the trial Court in not properly assessing and evaluating the evidence relating to the defence put forward by the Respondent led to a wrong conclusion that the Respondent was guilty of the offence charged. Grounds 1 and 6.”

After examining the issues formulated by Counsel, I have reframed issues for determination as follows:

“1. Whether the learned Justices of the Court below were right when they allowed the appeal before them on the ground that the totality of the evidence adduced by the prosecution before the trial Court fell

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short of discharging the burden of proof required by the law in Criminal proceedings.

2. Whether the lower Court was right in setting aside the conviction of respondent for the offence under Section 95 of the Penal Code which he was not charged with.”

Learned Counsel for the Appellant submitted that the answer to the foregoing should be in the negative. He observed that the statement of the Respondent to the police which is tendered as Exhibit 1B before the lower trial Court is crystal clear. Learned counsel argued that once an accused person made a statement admitting the allegation made against him or creating the impression that he committed the offence with which he is charged, then that statement or impression becomes confessional. He relied on ALARAPE VS THE STATE (2001) FWLR (Pt.41) 1872 SC, EGBOGHONOME VS THE STATE (1993) 7 NWLR (Pt.306) 383 SC.

Learned counsel argued that the learned justices of the lower Court were in great error as to their quotation of Exhibit 1A and a fortiori in the meaning of their English translation of the Hausa statement.

Counsel submitted that the lower Court clearly misdirected itself when it held

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that-

“In the instant case the lower Court neither considered the defence forward by the accused person nor evaluate the evidence vis-a-vis that of the accused before arriving at its conclusion that all the ingredient of the offence of rape under Section 282 of the Penal Code had been proved.”

He submitted that it is not the duty of the accused to prove his innocence but that of the prosecution to prove his guilt beyond reasonable doubt. An admission by the accused person in a confessional statement ends the need for the prosecution to prove his guilt, as stated in USUNG VS THE STATE (2009) 3 FWLR (Pt.483) CH.6359 at P 6401 B. D.

He further argued that, the prosecution is not bound to call every witness to testify, all that it requires are the testimonies of witnesses who are necessary to prove its case beyond reasonable doubt, he stated that the prosecution called a total of 4 witnesses but failed to call the victim, who is an imbecile as a witness.

He further submitted that, the Court can still convict on the confessional statement alone even though the accused resiles from it.

Learned Counsel for the Respondent argued that for

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the prosecution to secure conviction for an offence of rape under Section 283 of the Jigawa State of Nigeria Penal Code, the evidence adduced inclusive of the statement of the accused both extra-judicial evidence in chief must establish the necessary ingredients of the offence charged. He relied on EZIGBO VS THE STATE (2012) 6 SCNJ (Pt.1) 61 at 67. Learned counsel argued that for the success of the charge, the prosecution must not only lead evidence to establish the requirements or ingredients as stipulated by the law under the Penal Code but also prove by evidence that the offence was committed by the accused beyond reasonable doubt. He cited EBEINWE VS THE STATE (2011) 1 SCNJ 90 at 101.

Learned Counsel argued that the argument presented by the Appellant may be acceptable only where accused did not retract his statement. But where he did so, the Courts are enjoined in the spirit of fair trial to look into the entire evidence outside the alleged confessional statement to corroborate the accusation so made. Learned Counsel claimed that the evidence of all the witnesses who testified in the matter did not in any way support the extra judicial statement of the Respondent.

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He further submitted that, there was no evidence of the slightest penetration given by the medical officer who examined the alleged victim a day after the alleged incident occurred and, there was no complaint of any pain around her genital area.

He argued that the lower Court has rightly found that, to succeed in sexual intercourse cases, the prosecution must establish the fact that there were penetrations. This is lacking in the present case, the medical report did not say her hymen was perforated as a result of alleged act of the Respondent.

He finally urged the Court to dismiss this appeal as the prosecution did not prove its case beyond reasonable doubt as required by law.

The essential and most important ingredient of the offence of rape is penetration and unless penetration is proved, the prosecution cannot be said to have proved its case beyond reasonable doubt. 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.

See: – EDET OKON IKO VS STATE (2001) 7 SCNJ 391. OKOYOMON VS STATE (1973) 1 SC 21, R VS ALLEN 9C & p 31.

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JOS N. A. POLICE VS ALLAH MAGANI (1968) NMLR 8. IGBINE VS STATE (1997) 9 NWLR (pt.519) 101.

In OKOYOMON VS STATE (Supra), this Court held:

“We are of the view that the prosecution had not established that the accused did have unlawful carnal knowledge of the prosecutrix in the sense that there had been penetration as required by Section 300 of the Criminal Code. It was not enough that the prosecutrix alleged the insertion of the accused’s Penis in to her Vagina or that he lay on her.”

In the instant case, the Respondent at pages 64 – 69 of the record confessed to have committed the offence in his extra – judicial statement at the police station.

“I, Muhammadu Muhammadu alias Masiga voluntarily state as follows. I was born and brought up in Dakayyawa Village in Kaugama Local Government Area. I did not attend school of education but only have Qur’anic knowledge. I am not married yet. I am a real Kanuri by tribe. I am the first son in our family out of eight persons. I don’t have any occupation apart from trading of fork. On Tuesday 16/03/2010 at about 12.00 hrs I took one girl whose name is Amina Sale Ringim she is ten years old, and she is

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an imbecile. I took her to the House that I use to guide, the House belong to one Sarkin Hakimi Dakayyawa, I, had sexual intercourse with her by force, (Emphasis mine) I forced my penis into her vagina, but did not passed inside because the entrance is closed, by that time I gave her one sweet. She did not raise an alarm, before I had a sexual intercourse with her. I have to removed her pant, after I have finish with her, (emphasis mine) I locked her inside the House. I thought she has gone out. I am not denying the offence, this is the first that I have involved myself in such offence, I am pleading for leniency, it was temptation that led me to do so. I made this confessional statement not under duress. This is the first time I was brought before police on criminal offences. That is all about my statement.

However, the Respondent in his evidence before the trial Court at pages 15 – 16 of the record of appeal retracted the confessional statement.

The Respondent testimony at the trial Court is as follows:

“At the CID I denied committing the offence. But one Police Officer wrote something which he did not read over to me but put an ink on

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my finger and thumb printed on the paper.

I was not given any house to look after but there is one house close to my room owned by Alhaji Sarki Hakimi and whenever he comes and if there was a job, I used to be given the job otherwise he gives me something when he is going. Alhaji Sarki Hakim does not leave the keys of the house with me. It was one Mallam Naibi that keeps keys.

Mallam Naibi does not live the keys with me but whenever there is any job to do in house, we use to collect the keys from his house.

Yes I know Amina Salihu, she lives in our area and there is no any relationship between us. I was the only youth in that area and I was not the one that raped the victim.

I had never had the opportunity of holding the keys of that house.”

Where a confessional statement is denied or retracted by an accused as in the instant case. it is desirable to have corroborative evidence no matter how slight before convicting on it. The Courts are enjoined as a matter of duty to test the veracity or otherwise of such statement by comparing it with other facts and circumstances outside the statement, to see whether they support, confirm or

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correspond with it. In other words, the Court must scrutinize the statement to test its truthfulness or otherwise in line with other available evidence.

See: KAZEEM VS STATE (2009) All FWLR (Pt.465) page 1749; EDHIGERE VS STATE (1996) 8 NWLR (Pt.464) page 1; ONOCHIE & 7 ORS. VS THE REPUBLIC (1966) 1 SCNLR 204; and QUEEN VS ITULE (1961) 2 SCNLR 183.

In considering whether a confession was true, this Court; in the case of OGUDO VS STATE (2011) 8 NWLR (P1.1278) page 1 at 26, reiterated the test to be applied, per Rhodes-Vivour JSC, thus:

“A Court can convict on the retracted confessional statement of an accused person but before this is properly done the trial judge should evaluate the confession and testimony of the accused person, which is different from his retracted confession and then ask himself the following questions:

(a) Is there anything outside the confession to show that it is true

(b) Is it corroborated

(c) Are the relevant statements made in it of facts true as far as they can be tested

(d) Did the accused person have the opportunity of committing the offence charged

(e) Is the confession

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possible

(f) Is the confession consistent with other facts which have been ascertained and have been proved See KANU & ANOR VS KING (1952) 14 WACA 30, MBENU VS STATE (1988) 3 NWLR (Pt.84) page 615, STEPHEN VS STATE (1986) 5 NWLR (Pt.46) page 978.”

From the foregoing, the trial Court before convicting the Respondent ought to have looked around other evidence by the prosecution to corroborate the retracted confessional statement.

I have mentioned earlier that the essential and most important ingredient of the offence of rape is penetration and unless penetration is proved the prosecution must fail.

PW.3 one Abdullahi Uba Anyo, a Medical Officer in charge of Nuhu Alfa Primary Health centre Dakayyawa who examined the girl alleged to have been raped testified at pages 9 – 10 of the record as follows:

“I can recall that on the 17/3/2010 a policeman from Dakayyawa outpost brought one Amina Salihu who was suspected to have been raped by someone. I then asked the police to buy a surgical glove and when they bought it. I perform the examination, from my finding there was no bleeding from the vagina, no bruises but there was ordourful

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discharge. I then wrote some drugs for her which was purchased by her relation.

I later wrote a medical report to the DPO Kaugama. However, the cause of ordourful discharge was because of the personal hygiene of the girl who happened to be un-lucid and that could be the cause of her bad ordour. Also there was no infection. The private part of the girl was normal.”

From the testimony above, the prosecution cannot be said to have proved penetration. PW.3 claimed that the private part of the girl was normal. There is no way a penetrated vagina will still remain normal.

Looking at the other evidence, Pw.1 testified at page 19 of the record that, he was in Hadejia when his uncle called him on phone and requested him to come back home, and when he enquired as to why his attention was needed; his uncle told him that, Amina an imbecile daughter of his senior brother was found locked in the house where the accused person watch over as security man.

PW.2 testified at page 20 of the record and stated that, one of his colleagues came and informed him that the accused person had locked one girl in a house. He said he reported the matter to his superior

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officer. He stated further that, together with the father of the girl, and a police officer they went to the uncompleted building, and found the girl therein locked up.

PW.4 is a police officer who narrated at pages 22-24 of the record how the Respondent was arrested and how they took the extra judicial statement of the Respondent.

The entire testimony of the prosecution witnesses Pw.1, Pw.2 and PW4 are essentially hearsay evidence.

It is trite law that evidence of a witness who is not the maker of such statement is hearsay evidence and generally not admissible. See Sylvester Utteh v State (1992) 2 NWLR part 223-257, SUBRAMANIAN VS PUBLIC PROSECUTOR (1956) 1 WLR 965.

I am satisfied that based on the reason stated above, the retracted statement of the Respondent did not pass the test that could have elevated it to confessional statement as opined by Rhodes-Vivour, JSC in OGUDO VS STATE (Supra). In CHIOKWE VS STATE (2013) 8 NCC 185, this Court per Ariwoola, JSC stated that:

“It has also been established that the retraction of the confessional statement by an accused person in his oral testimony in Court during trial is of no moment. The most

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important thing is that the Court must be satisfied as to the truth of the confession, and can therefore rely on it alone to ground conviction.

However, it is also settled that it is desirable that the Court should, outside the confessional statement look for some corroborative evidence, no matter how slight.”

In the case at hand, there is nothing outside the alleged statement to corroborate the confessional statement. I hold that the learned trial Judge erred in law when he convicted Respondent based on the retracted confessional statement without any corroboration.

In HABIBU MUSA VS THE STATE (2013) 8 NCC 464 this Court held that:

“Generally, it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecution. It has however been clearly established in the rule of practice that the proper direction is that not being safe, the Court is expected to warn itself. After the due warning and the Court is satisfied with the truth of evidence of the prosecution the accused can be convicted without looking for any other corroboration.”

In the present case, had the trial Judge

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warned himself, he would not have convicted the Respondent.

The medical doctor PW.3 who examined the girl did not say that the girl was raped. The report he prepared after examining her which was admitted in evidence as Exhibit 1 said her vagina was normal and did not say that she was raped.

The contradictions in the evidence of the prosecution witnesses PW.3 and PW.4 was never resolved by the lower Court in its judgment.

PW.2 testified at the lower Court that it was one of his colleagues that told him that the Appellant had locked a girl in a house and that he made a report to the Police.

That colleague of PW.2 who is a vital witness was never called by the prosecution to testify.

PW.1 also in his testimony at page 6 of the record of appeal said that when the Appellant entered into the house with the girl, some free women that were living nearby saw him together with the girl. Those free women were also not invited to testify by the prosecution.

PW.4 said that the scene of the crime was an uncompleted building and that he recorded the statement of the owner. The said owner of the uncompleted building who is also a vital witness

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was never invited by the prosecution to testify nor was his statement tendered in evidence.

I have stated earlier that there is no doubt that in charge of rape penetration must be proved. See HABIBU MUSA VS THE STATE (Supra).

On what prosecution must prove in charge of rape, this Court in JEGEDE VS THE STATE (2001) 14 WNLR part 733 held that.

“Whether the prosectrix is a minor or an adult, to secure a conviction for rape, there must first be proof of penetration of the vagina and the penetration must be linked with the accused.”

From the totality of the evidence adduced at the trial Court, there is nothing to show that the Respondent had sexual intercourse with the victim in this case. The prosecution has failed to prove the most important ingredient of offence of rape.

The rape is only committed in circumstances set out above with clear evidence of penetration and who was responsible for it. In this case, the Respondent was convicted based on the retracted extra judicial statement which was not corroborated. The lower Court set aside the conviction of the Respondent by the trial Court because there was insufficient evidence to

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justify it.

The ingredients of the offence has not been proved. This issue is resolved in favour of the Respondent.

ISSUE 2

Whether the lower Court was right in setting aside the conviction of respondent for the offence under Section 95 of the Penal Code which he was not charged.”

Learned trial Judge in his judgment at page 46 stated that:

It is trite law that where a defence raised or even if not raised but considered by the Court and the same does not absolve the accused from criminal responsibility like in the instant case, then the Court has no option other than to return a verdict of guilt against the accused person for the offences charged. It is on this premise that, the accused person is found guilty for the offence, Attempt to escape from lawful custody under Section 95 of the Penal Code and punishable thereunder and the offence of Rape punishable under Section 283 of the Penal Code Law of Jigawa State 1998 and convict him accordingly.”

For easy reference, I shall reproduce the charge sheet in this which is at first page of the record as follows:-

FIRST HEAD OF THE CHARGE

That you Muhammadu

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Masiga alias Tsolo ‘m’ of Yelleman Hausawa Kaugama Local Government Area, on or about the 16th day of March, 2010 at Yelleman, within the Jigawa Judicial Division induced one Amina Salihu aged 10 years with sweet called Alewa, and moved her into an uncompleted building, then locked her up and you committed and offence of Abduction contrary to Section 272 of the Penal Code Law CAP 107 Laws of Jigawa State, 1998 and punishable under Section 273 of the same law.”

SECOND HEAD OF THE CHARGE

“That you, Muhammadu Masiga alias Tsolo ‘m’ of Yelleman Hausawa Kaugama Local Government Area, on or about the 16th day of March, 2010 at Yelleman Hausawa, within the Jigawa Judicial Division induced one Amina Salihu aged 10 years with sweet called *Alewa’ and moved her into an uncompleted building, then locked her up and you committed an offence of Abduction contrary to Section 272 of the Penal Code Law CAP 107 Laws of Jigawa State, 1998 and punishable under Section 273 of the same law.”

From the foregoing, the Respondent was never charged with the offence of attempting to escape from lawful custody.

Although under Section 217 of the Criminal

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Procedure Code, a person charged with one offence may be convicted of another offence which he is shown to have committed even though he was not charged with it, the Court has to be satisfied that it had been doubtful which of several different offences the facts which could be proved would constitute or such doubt applied only to the law and to the facts, that is to say the facts charged must have given the accused person notice of the offence with which he is to be convicted. See EKECHUKWU VS COP 1966 NNLR 96.

I agree with the lower Court in its judgment at page 157 of the record. When it held that:

“It is very clear that the lower Court misconceived the proper application of Section 217 of the Criminal Procedure Code.

The position of the law is that in order to invoke the provision of Section 217 of the Criminal Procedure Code to convict for an offence not charged, the facts proved in establishing the offence charged must also have disclosed other offences which include the offence not charged and that an accused can be convicted, on the same facts proved.

It is trite that before a Court can invoke the provisions of Section 217 of the

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Criminal Procedure Code to substitute a conviction there should have been doubt as to which of the several offences the facts constitute or disclose.

In the instant case neither the ingredients of the offence of rape nor that of abduction can be used to prove the offence of attempt to escape from lawful custody under Section 95 of the Penal Code.

The facts of the offence of attempt to escape from lawful custody are new facts and the offence was not based upon a different legal interpretation of the law on rape or abduction. which he was previously charged.”

It is instructive to consider that where the prosecution has failed to prove the commission of the offence charged, the trial Court cannot fish for an alternative verdict. See: OYEDIRAN VS REPUBLIC (1967) NWLR 122, ARUWA VS THE STATE 6 NWLR (Pt.155). This issue is also resolved in favour of the Respondent.

Having resolved the two issues against the Appellant, this appeal lacks merit and it is hereby dismissed. The judgment of the lower Court setting aside the conviction by trial Court is affirmed by me.

Appeal dismissed.

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SC.291/2013