Isaac Sambo v. The State

The appellant, who is a legal practitioner resident at Gombe, Gombe Local Government Area of Bauchi State, was in August 1988 arraigned before the High Court of Bauchi State (Bauchi Judicial Division) and charged with committing the offence of rape against a 10 year old girl, one Bilkisu Umaru, contrary to section 283 of the Penal Code.

At the trial, the prosecution called four witnesses – the child and complainant (P.W.1), her sister (P.W.2), the investigating Police Officer (P.W.3), and the Medical Officer who examined her (P.W.4). The appellant neither testified nor called any witnesses. He rested his case on that of the prosecution. After hearing counsel on behalf of the prosecution and the accused in address, the learned trial Judge delivered a considered judgment in which she convicted the appellant of the lesser offence of attempted rape and sentenced him to a term of 6 months imprisonment plus a fine of N1,000.00 or, in the alternative to the fine imposed, an additional sentence of 3 months imprisonment.

The case of the prosecution, briefly, is that the appellant, on the 2nd July, 1987, requested the complainant (P.W.1), who is a neighbour of his, to fetch him water for bathing. When she brought the pail of water to the appellant’s house, he invited her into his room, locked his door, and put on his music set. He then removed the child’s dress, forced her on to his bed and tried unsuccessfully to put his private part (penis) on her private part (vagina). When the child started crying, he

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unlocked the door of his room and let her go, pleading for her forgiveness so that “his name would not be spoiled”. On getting home, P.W.1 took off her bloodstained pant and washed same. When, later still, the sister (P.W.2) met her crying and asked her what was wrong with her, she told her what the appellant had done to her. On examination of her private part by P.W.2, she found some blood thereon. P.W.2 then made a report to the Police which led to the arrest of the appellant. In the course of investigation, P.W.1 was sent to the General Hospital, Gombe, for examination, and statements were obtained from the appellant by the Police.

In his two statements to the Police, the appellant admitted that he sent P.W.1 who is his neighbour to fetch “bathing water” for him. When she brought same to his room, there was music being played on the radio and he began to dance with her. She however, started crying, stating that she did not like what he was doing to her. He then left her and she departed. At no time did he rape or force himself on her.

Dissatisfied with his conviction and sentence by the High Court, the appellant appealed to the Court of Appeal against same. Briefs were duly filed by the parties, and after hearing the appeal, the court below dismissed same and affirmed the conviction and sentence of the trial High Court. The appellant has appealed again – to this court.

Five issues for determination were set out by the appellant in his brief, as follows:-

“1) Whether the Court of Appeal was right in law and on the facts in holding that there was evidence corroborating the evidence of the P.W.1 to sustain the conviction of the

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Appellant for attempted rape.

2.) Whether the disparity between the written statements of the P.W.1 and her evidence in court is not such as would render her evidence unreliable and if the answer is in the affirmative whether the Court of Appeal did not violate the Appellant’s right to fair hearing in refusing to consider Appellant’s counsel’s submission on the point.

3.) Whether the Court of Appeal should have confirmed the conviction and sentence passed on the Appellant by the trial Court when the same was based on speculation.

4.) Is it not mandatory for a trial court to conduct the usual preliminary test as to the capability of a child to testify before receiving the child’s evidence under section 182 (1) of the Evidence Act? If the answer is in the affirmative, whether the court of appeal should not have quashed the conviction of the Appellant based on the evidence of the P.W.1 which is a child which evidence was received by the trial court without conducting the preliminary test.

5.) Whether the contradiction, inconsistencies and disparities in the totality of the evidence adduced by the prosecution are not such as would warrant a settling aside of the conviction and sentence passed on the appellant by the trial court and affirmed by the Court of Appeal.”

The respondent also set out in his brief five issues for determination, which are framed thus:-

“1. Whether the Court of Appeal was right in law and on the facts in holding that there was evidence corroborating the evidence of the prosecutrix (PW1) to sustain the conviction of the Appellant for attempted rape.

2. Whether the Court of Appeal was right in holding that the contradictions in the evidence adduced by the

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prosecution are minor and do not affect the substance of the prosecution’s case.

3. Whether the Court of Appeal was right in law when it failed to give detailed consideration to the Appellant’s Counsel’s submission on the contradiction between the PW1 ‘s oral evidence in court and a previous statement made to the police on the ground that the alleged statement was never tendered in court as the alleged statement was never tendered in court as to form part of the evidence before the court.
4. Whether the Court of Appeal was right in upholding the conviction and sentence passed on the Appellant by the trial court when same was based on speculation.
5. Whether or not the trial court has complied with the provisions of sections 154 (1) and 182 (1) of the Evidence Act before receiving the evidence of the PW1.”

The first issue for determination in both briefs call for an examination of the facts which the court below (and even the trial court before it) relied upon to come to the conclusion that there was evidence corroborative of testimony of PW1. (the complainant/prosecutrix) as required by law.

Rape is defined in Section 282 of the Penal Code as follows:-

“282(1) A man is said to commit rape who, save in the case referred to in subsection (2), has sexual intercourse with a woman in any of the following circumstances –

(a) against her will;

(b) without her consent;

(c) without her consent, when her consent has been obtained by putting her in fear of death or of hurt;

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(d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;

(e) with or without her consent, when she is under fourteen years of age or of unsound mind.

(2) sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.”

There is no provision under the code itself for corroboration in the case of the rape of a girl under the age of 11 or 13 years, as is the case in the Criminal Codes of the Western/Bendel States and the Federation respectively. These latter Codes provides specifically that-

“A person cannot be convicted of the offence(s) on the uncorroborated testimony of one witness”.

This lacuna is however taken care of by section 178 (5) and 182 of the Evidence Act Section 178 (5) states that –

“178(1) Except as provided in this section, no particular number of witnesses shall in any case be required for the proof of any fact.

Sedition and Sexual Offences

(5) A person shall not be convicted of the offences mentioned in sections 218, 221, 223 or 224 of the Criminal Code upon the uncorroborated testimony of one witness (notes: Italics mine)

Section 218-224 deal with offences against morality; and under section 218 particularly is very apposite, as it creates the offence of defilement of girls under thirteen years (similar to the offence being considered in this appeal).

Section 182 which deals with the unsworn evidence of a child provides –

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“182 (1) In any proceeding for any offence the evidence of any child who is tendered as a witness and does not in the opinion of the court, understand the nature of an oath, may be received, though not given on oath, if, in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.

(2) If the court……………

(3) A person shall not be liable to be convicted of the offence unless the testimony admitted by  virtue of this section and given on behalf of the prosecution is corroborated by some other material evidence in support thereof implicating the accused (note; Italics mine)

(4) ……………

(These are now sections 179 and 283 in Cap. 112 of the Laws of the Federation of Nigeria 1990.) The provisions set out, in brief, require the corroboration of the testimony of a child by other material evidence implicating the accused in order to convict in the case of the defilement/rape (under the code) of a child.

This issue was considered both by the trial High Court and the Court of Appeal both of which held that there was such corroborative evidence, and proceeded to find the appellant guilty. The trial High Court held such corroboration established First by the following finding:-

“The fact that the PW1 left the room of the accused crying and was found crying by her sister, the fact that when she was examined by the PW4 there was inflamation and trauma on her private part which in the opinion of the P.W.4 might have been caused by forceful entry all lead

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the court to arrive at only one conclusion that there must have been an attempted rape on the P.W.1 by the accused.

(note: Italics mine)

and secondly by “circumstantial evidence as shown by the prosecution”.

On appeal the court below set out in its judgment, “some relevant evidence that could be described as corroborating the evidence of the prosecutrix P.W.1 as follows:-

“P.W.2 – “I did see blood between her thighs and coming of her private part”.

P.W.4 – “There is a possibility of trauma on the vagina which might have been caused by possible entry.”The appellant’s caution statement Exh. ‘B’ where he said “….was dancing and playing with the girl in my room, when she started crying, saying she did not like what I was doing to her”

It ended by stating that-

“I think the supra evidence are in my opinion sufficient corroboration of the evidence of P.W.1. See Mbele v. State (1990) 4 N.W.L.R. (Pt. 145) Page 484”.

It also relied on the evidence of P. W.4, as to the state in which she found the child; P.W.4, as to the state and condition of the child when he examined her vagina; and the appellant’s statement that the child cried when he was dancing with her; as circumstantial evidence which provided the required corroboration.

In his submission the appellant has urged that the nature of evidence required to sustain a conviction for attempted rape on the unsworn evidence of a child was not led in the

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case on appeal. Such evidence, he said, must be one that implicates the accused person in the commission of the offence. It must show that the accused person actually committed the offences. Appellant then made submissions on the three pieces of evidence relied on by the court below as constituting corroboration. On that of P.W.2 that she saw blood coming from between the thighs of the child and from her private part, he submitted that-

“this piece of evidence does not in any way entangle the accused in the offence alleged. Thus the evidence does not say or even suggest that the blood found on the thighs and coming out of her private part was that of the accused. Nor that the same blood was found on the body or private part of the accused so as to suggest that the accused had contact with the private part of the P.W.1.”

As to the evidence of P.WA (wrongly attributed to P.W.3) that “there is a possibility of trauma on the vagina which might have been caused by possible entry, appellant’s submission is that-

“the Court of Appeal misdirected itself on this point because it did not direct itself towards the evidence of the same P.W.4 immediately before the evidence quoted above which says:

“There was a possibility of rape in my opinion. It is however not conclusive (Italics mine)”

He further went on to submit that this evidence of P.W.4 did not satisfy the standard of proof required in criminal cases, which is proof beyond reasonable doubt and not proof on probabilities or possibilities. It merely shows that it is possible that the offence was committed and not that

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it was actually committed. On the portion of the appellant’s statement to the police (Exhibit B) relied on as corroboration, appellant has submitted that it does not suggest any inference that rape or any attempt to commit rape was made by the appellant on P.W.1. It is also not a confession in law of the offence charged that can be relied on to convict the appellant.

Appellant also attacked the court below’s finding on circumstantial evidence in which it stated –

“I believe the evidence of P.W.2 on the state she met P.W.1, the appellant’s statement that P.W.1 cried when he danced with her and the revelation in the medical superintendent’s evidence on the state and condition of P.W.1 he examined her vagina. This examination was carried on the very next day after the incident. Even though it was not done on the very day, I am of the view that the evidence was cogent.”

The reasons for this attack are set out in the particulars of misdirection to Ground 2 of the grounds of appeal. They will be commented upon in the course of my consideration of the main issue, if necessary, it is sufficient to state here that the point was therein made that the court below cannot “believe or disbelieve” evidence which it did not have the advantage of seeing. The contradictions of these pieces of evidence with other evidence led and their inconclusive nature were also pointed out. In conclusion appellant has submitted that these pieces of evidence cannot constitute circumstantial evidence on which this court can convict because it is not cogent, complete, unequivocal, compelling and showing with mathematical accuracy, that it was the appellant who committed the

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offence for which he was convicted vide Adie v. The State (1980) 1’972 S.C. 110 (150/151); Gabriel v. The State (1989) 5 N.W.L.R. (pt. 122) 457 (463)

The respondent in its brief relied on the same pieces of evidence which the court found to constitute corroboration. In addition it also relied on “the evidence of P.W.2 who met P.W.1. Crying shortly after she (P.W.1) came out of the appellant’s room”. This latter addition can be disposed off immediately. It is nor a correct rendering of the evidence of P.W.2 who never said that she saw her sister (P.W.1) crying shortly after she came out of appellant’s room. The time factor introduced is not unimportant here. How long after is “shortly after”? If it was shortly after, we would expect P.W.2 to immediately challenge the appellant who is a neighbour; and the child would have been taken to P.W.4 for examination the same (instead of the next) day.

In considering the pieces of evidence relied upon as constituting corroboration, the first point that I have to make is that all of them taken singly or together constitute circumstantial evidence, as opposed to direct evidence of the offence charged or proved. If any of them is shown to be unreliable or otherwise discredited, it need not be further considered as relevant circumstantial evidence.

The submission of appellant on the piece of evidence of P.W.2 relied on by the court below, is only valid in my view if the contention is that taken by itself that piece of evidence cannot constitute corroboration. Even though the evidence does not prove the offence charged/proved, it could, where other cogent evidence is available, be circumstantial evidence which can be considered in

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coming to the conclusion whether corroboration has been established or not. Objection to this piece of evidence has however also been raised by appellant’s counsel on the ground that the court below wrongly believed this piece of evidence when the trial High Court which saw and heard the witness did not make any such finding. The trial court no doubt must have taken into account the evidence of P.W.3 who saw the girl soon after the sister (p.W.2) made her complaint, and did not see any blood either on her or on her wrapper. Nor did P.WA, who the other three witnesses (P.W.1, P.W.2, P.W.3) testified, saw P.W.1 that very day. If P.W.2 saw blood in P.W.1’s thigh and private part, unless it is cleaned of, particles of it (even though caked) would have been observed by P.W.4 in the course of his investigation. The piece of evidence is therefore at best flawed. The evidence of P.W.4 the medical superintendent is an entirely different matter. It is so equivocal and, at the highest, talks of possibility (as opposed to certainty) ,that it is really valueless. There was on examination no bleeding or discharge. No evidence of the hymen having been recently interfered with; but it was shown to have been “broken (or not intact). Rape was stated to be only a possibility but not conclusive. Finally, whilst P.W.4 is sure that he saw P.W.1, the day after the event complained of, P.W.1, P.W.2 and P.W.3 swore that P.W.4 examined her the same day. I agree with the appellant that this evidence was wrongly considered as constituting corroboration by the court below. It falls far short of the standard of proof required for the offence charged. Part of the appellant’s statement in which he stated that the child was “crying saying she did not like

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what I was doing to her” can indeed be considered by the court. It is evidence that can be used against him even though he did not testify in his defence vide Shazali v. The State (1988) 5 N.W.LR. (Pt. 93) 164. It is however only fair to observe that the appellant said that he understood the girl to be saying that she did not like the dancing, and no more. Whilst this piece of evidence cannot by itself constitute proof, it is evidence which the court can look at when considering corroboration.

In the final analysis the question that has to be decided is whether these three pieces of evidence, the first flawed, the second useless, and the third not by itself proof of offence charge, can taken together, constitute corroboration as required by law. The evidence is circumstantial and in my view is certainly not sufficiently cogent, compelling and unequivocal as to show without more than the appellant committed the offence charged/proved. The answer to the first and most important issue raised by the appellant is in the negative.

The complaint in the second issue is that the court of appeal violated the right of fair hearing of the appellant by refusing to hear and fully consider his counsel’s submission that the disparity between the statement made to the Police by P.W.1 and her evidence in court rendered her evidence unreliable.

For this submission counsel relied on the proviso to section 208 of the Evidence Act which reads-

“Provided always that it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make use of it for the purpose of the trial, as it shall think fit”‘

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(note: Italics mine).

The main part of section 208 deals with the procedure for confronting a witness with a past statement made by him with a view to contradicting same with his present statement on oath. In that case the attention of the witness must be drawn to the contradictory portions, so that opportunity be given to him to explain same, if possible. The proviso thereto set out above allows the court to require the production of such a statement/document and thereafter to use same for its own purpose. Such power can only be exercised during the trial. In order to be able to exercise this power (right) the attention of the court must in my view be drawn to the document either by its own observation or by the party seeking to benefit from the contradiction in the document. In the present case not only was the court’s attention not drawn to the relevant document-the statement of P.W.1 to the police, but appellant’s counsel never adverted to same even in his address. What is more the proviso to section 208 contemplates the exercise by the court of its power to seek and obtain production of the document for use during the trial; not during the hearing of all appeal against the judgment delivered at the trial. It is therefore not open to appellant’s counsel to seek to address the court below on the failure of the trial court to exercise its power under the proviso to section 208 of the Evidence Act, during the hearing of the appeal in the court below. The refusal of that court to give “detailed consideration” to any submissions urging it to set aside the judgment of the court of trial on that ground is therefore in my view correct.

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Appellant’s counsel has drawn attention to the fact that the learned trial Judge must be deemed to take judicial notice of the statement of P.W.1 in question. In support he cited Osafile v. Odi (No.1) (1990) 3 N.W.L.R. (Pt.137) 130 (158) where Nnaemeka-Agu, J.S.C. stated that

“I think it is fairly settled and not a matter for argument that a court will take judicial notice of its records and proceedings (note: Italics mine)

There is no doubt that the trial court must be deemed to have judicial notice of the P.W.1’s statement. That however does not mean that the court, without its attention being drawn to it, is under any obligation to suo motu; call for its production and proceed to contradict P.W.1. with same, with or without admitting same in evidence, hold the testimony of P.W.1 in court as unreliable, and acquit and discharge the appellant. The court, be it remembered, under our adversary system operates as an umpire in proceedings before it. It cannot be faulted for failing to take action on a document not tendered in evidence before it, and/or to which its attention has not been drawn. Normally such evidence is not evidence on which it can act vide Esangbedo v. The State(1989) 4 N.W.L.R. (Pt. 113) 57 (66), where this court refused to look at extra judicial statements which had some contradiction with the sworn evidence of their makers during the trial, on the ground that they had not been produced, used to contradict the witnesses, and tendered in evidence. It was therein pointed out that an appellate court is bound to consider an appeal before it on the basis of legal evidence which the trial court saw,

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considered and acted upon. On the whole Mukhatar, J.C.A. was very right when she stated that:

“I will not give detailed consideration on counsel’s submission on the contradiction between P.W.1’s evidence in court and a previous statement made to the Police. That submission should not even arise at all, because this statement counsel is relying heavily on, and comparing with the evidence in court was not tendered in court and was thus not evidence before the court and did not form part of the record. In fact it is a non issue.”‘9d

The answer to the second issue therefore is that the action of the court below was right and that it did not violate the appellant’s right to a fair trial.

In view of my decision on issue 1, I do not intend to further consider appellant’s Issue 3 in this judgment.

Issue 4 complains that the learned trial Judge did not comply with the preliminary test required by section 182 (1) of the Evidence Act before allowing P.W.1. a child of 10/11 years to testify. Furthermore, whether if there is such failure it should not result in quashing of conviction based on such evidence. It is the submission of the appellant that the preliminary tests were not considered as required by law. For these to be properly considered, the process of examination and the result must be recorded. Counsel for the appellant relied on Mbele v. The State (1990) 4 N.W.L.R. (Pt. 145) 484, as to the procedure to be adopted for a proper examination. Whilst in Mbele’s case there was evidence on which it could be held that the required test was conducted, it is the submission of the appellant that no such evidence exists here. Two tests are required. The first is as to the required

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level of understanding and the need to tell the truth. This will justify the reception of the evidence of P.W.1 as unsworn evidence under section 182 (1). The second, is to ensure that the witness understands the nature of an oath. This will make it possible to receive her evidence on oath under section 179 of the Evidence Act. It is the submission of appellant that neither of these investigations were conducted, and that the effect of such failure is to render the evidence of P.W.1. a nullity. No conviction can therefore be based on it, vital as it is in the present case. The appellant would therefore be entitled to an acquittal of the offence for which he was convicted.

Again, in view of my decision on Issue 1, I do not propose to consider this issue in detail. Suffice it to say that the procedure require to be carried out under Section 159 of the Evidence Act, as properly detailed in Mbele’s case (supra) was not carried out here. The observation on the record, that

“P.W.1

Muslim a child of eleven years old

who know the nature of an oath but

does not know the consequences of telling

a lie affirmed to speak the truth s/h”

is not sufficient compliance with the required procedure. Is such failure a mere irregularity or is it more fundamental? I am afraid I agree with the submission of the appellant that the effect of a failure to carry out both tests is not a mere irregularity but should result in making the evidence of P.W.1. one which the court below should have disregarded in considering the appeal. Without the evidence of P.W.1 as to what the appellant is alleged to

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have done to her, the foundation of the charge cannot be laid. No need for corroboration would arise. The appellant would therefore be entitled to an acquittal in respect of the offence for which he was convicted. The submission of appellant on Issue 4, therefore succeeds. There is also no need to consider issue 5 which deals with inconsistencies and contradictions in the evidence on record, in view of my decisions on Issues 1 and 4.

Accordingly this appeal succeeds and the decision of the Court of Appeal affirming the conviction and sentence of the trial court is hereby set aside. In its place I enter a verdict of not guilty in favour of the appellant who is consequently acquitted and discharged.