Mesara Ayuba v. The State

This appeal is against the judgment of the Court of Appeal delivered on 8th October, 2021, wherein the Court below affirmed the conviction of the Appellant by the trial Court. The Court however set aside the sentence imposed on him of seven years imprisonment without an option of fine, as well as ten strokes of cane on ten market days. In its stead, the Court below imposed a sentence of life imprisonment on the Appellant.

Succinctly, the facts of the case leading to the appeal are as follows: the Appellant, alongside three others, stood trial before the trial Court for the offence of rape contrary to Section 282(1) (e) of the Penal Code, Cap. P3, Laws of Jigawa State, 2012 and punishable under Section 283 of the Penal Code (Miscellaneous Amendment) Law of Jigawa State, No. 9 of 2014. The allegation in the second count of the charge which pertained to the Appellant, alleged that the Appellant had carnal knowledge of one Usaina Nuhu, a 12- year-old girl, sometime in June, 2018 at Kila Town in Gwaram Local Government Area of Jigawa State.

The Appellant pleaded not guilty to the charge,

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thus setting the stage for a full trial. The prosecution adduced evidence through six witnesses and tendered eight exhibits. Thereafter, the Appellant entered his defence, wherein he testified and adduced evidence through one other witness. Following the conclusion of hearing, the trial Court delivered its judgment in which the Appellant was found guilty of the offence of rape, as charged. He was convicted and sentenced to seven years imprisonment without an option of fine. He was also ordered to be given ten lashes of the cane on ten market days.

Dissatisfied with his conviction and sentence, the Appellant appealed to the Court of Appeal vide a Notice of Appeal filed on 17-12-2019, wherein he complained on three grounds. The Respondent also cross-appealed on the nature of sentence awarded the Appellant. The Court below, after hearing both parties vide their briefs of argument, delivered its judgment on both the appeal and cross-appeal on 08-10-2021. Therein, the Court dismissed the appeal and affirmed the conviction of the Appellant. However, it allowed the cross-appeal and set aside the sentence of seven years imprisonment. In its stead, it imposed a

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sentence of life imprisonment on the Appellant.

Displeased with the decision of the Court of Appeal, the Appellant has appealed to this Court vide a Notice of Appeal filed on 08-11-2021, wherein he again complained on three grounds. He urged the Court to allow the appeal, set aside the decision of the Court below and substitute it with an order of discharge and acquittal in his favour.

The appeal was heard on 7th March, 2024 at which time both learned Counsel for the Appellant and the Respondent adopted their respective briefs of argument. They urged the Court in line with the prayers contained in their Briefs of argument.

The Appellant, in his Brief of Argument filed on 28-04-2022, but deemed properly filed and served on 07-03-2024, distilled the following three issues for determination:
1. “Whether the Prosecution proved the offence of rape against the Appellant beyond reasonable doubt in view of the defects in Exhibits P2A and P2B. (Ground 1)
2. Whether the arraignment, trial and conviction of the Appellant was fraught with Irregularity and lack of fair hearing. (Ground 2)
3. Whether the lower Court was right in upgrading the

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sentence imposed by the trial Court to a sentence of life Imprisonment. (Ground 3)”

The Respondent, on its part, distilled the following two issues for determination:
1. “Whether the Court below was correct when it upheld the trial Court’s finding that the prosecution successfully proved the offence of rape against the Appellant beyond reasonable doubt. (Grounds 1 and 2)
2. Whether the Court below was right when it set aside the 7 years imprisonment sentence imposed by the trial Court on the Appellant and instead imposed and sentenced the Appellant to life imprisonment pursuant to the mandatory provisions of Section 283 of the Penal Code (Miscellaneous Amendment) Law, No. 9 of 2014. (Ground 3).”

From a proper scrutiny of the issues submitted for determination by both parties, I adopt the issues crafted by the Respondent which I consider apt for the resolution of the appeal.

SUBMISSIONS OF COUNSEL
Issue One – Whether the Court below was correct when it uphold the trial Court’s finding that the prosecution successfully proved the offence of rape against the Appellant beyond reasonable doubt.

Under this issue, learned Counsel on

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behalf of the Appellant essentially submitted that the Respondent did not discharge the burden of proof placed on it by law, in that it failed to prove the ingredients of the offence laid down in Section 283 of the Penal Code Law (supra). In this regard, Counsel contends that the evidence of the prosecutrix is unsworn and vague, primarily because the use of the word “us” in her testimony is an indication that the Appellant raped more than one person at the same time, He argues that this has raised a reasonable doubt. He also contends that the charge is vague as to the actual date of the commission of the offence which is not stated. Rather, that count two of the charge merely stated: “… sometime in the month of June 2018”. Counsel relies on Section 202 of the Criminal Procedure Code to argue that notice of sufficient particulars be given to the accused of the matter for which he is charged. He contends that the Court below was therefore in error when it held that the omission to state the clear particulars of the date and time of the commission of the offence is not fatal to the case of the Respondent.

In addition, Counsel argues that the

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prosecutrix failed to establish that there was penetration, a very important ingredient in the offence of rape. For these submissions, he relies on the decisions in the following cases: lsa V State (2016) 6 NWLR (Pt.1508) 243, Saldu V State (2011) 6 NCC, 126,134, Sani V State (2015) 15 NWLR (Pt.1483) 522, 550 & Jegede V State (2001) 14 NWLR (Pt. 733) 264, and others.

Furthermore, learned Counsel for the Appellant faulted both the Court below and the trial Court for relying on Exhibits P2A and P2B, the Hausa version and English translation of the confessional statement of the Appellant, in convicting the Appellant on the ground that the English translation, Exhibit P2A, was not signed by the Appellant. Counsel submits that an unsigned document is a worthless piece of paper and no probative value should be attached to it. He argues that the absence of a signature, as well as the name of the interpreter on the document, corroborates the evidence of the Appellant that he did not make the statement. It also creates a doubt in the case, which he urged the Court to resolve in favour of the Appellant. Additionally, Counsel argues that the medical report,

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Exhibit P4 tendered from the Bar, did not disclose any evidence of penetration. Reliance was placed on Faro Bottling Co. Ltd V OsuJi (2002) NWLR (748) 311, 30, The State V Ibrahim (2019) 2 SCNJ (Pt. 11 ) 532.

Learned Counsel also submits that the prosecution, in not producing PW1, the Investigating Police Officer (IPO), for cross-examination by the Appellant, was denied his right to fair hearing. That PW1 was only cross-examined during the trial-within-trial and so the Appellant was not given an opportunity to cross-examine him after the trial-within-trial. That the trial Court ignored this issue when it was raised and argued before it on behalf of the Appellant. For these contentions, Counsel placed reliance on the following cases. Hamza Al-Mustapha V State (2017) 14 NCC, 460, 467 & Dajo V State (2019) 2 NWLR (Pt.1656) 281, 298, D-E.

Learned Counsel also contends that the arraignment, trial and conviction of the Appellant was fraught with other irregularities and lack of fair hearing. This, he sought to demonstrate by contending that the trial Court tried the Appellant alongside three others jointly without ordering that they be tried

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separately. He further contends that there was no formal charge against the Appellant. Rather, the Appellant was made to plead to an “Application for Leave to Prefer a Charge”. In addition, that the Appellant pleaded to four charges, instead of one. Finally, he argues that the case against the Appellant was premature as there was no thorough investigation into the allegation by the Police. For these submissions, he relies on Section 221 of the Criminal Procedure Code and Usen V State (2016) All FWLR (Pt. 829) 1054,1068, C-D. Finally, Counsel urged the Court to resolve this issue in favour of the Appellant.

In his response, learned Counsel for the Respondent submits that the prosecution discharged the burden of proof placed on it by law. He submits that this Court can only interfere with the concurrent findings of two lower Courts when the Appellant is able to show special circumstances, which the Appellant has failed to do in this appeal. He relies on the case of Nelson Friday V State (2016) 7 SC (Pt. IV) 36, 60, 30-35.

Relying on the decision in Philip V State (2019) 13 NWLR (Pt. 1690) 209, Counsel argues that once the essential ingredients of an

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offence are shown to have been established, as was done in the instant case, the prosecution has discharged the burden of proof. Counsel submits that Section 202 of the Criminal Procedure Code cannot be read in isolation of Section 206 thereof which requires that the Appellant must disclose how the absence of a specific date in the charge has occasioned a miscarriage of justice to him. This, he contends, the Appellant has failed to do. Reliance is placed on the decision in Ankpegher V The State (2018) LPELR-43906.

On the Appellant’s submission in respect of Exhibits P2A and P2B, i.e. the Hausa version and English translation of the Appellant’s confessional statement, Counsel submits that they were admitted in evidence after the trial Court had determined their voluntariness upon the conduct of a trial-within-trial. He therefore submits that the trial Court was right to have relied on the confessional statement to convict the Appellant. He relies on Natsaha V State (2017) LPELR-42359(SC) & Emoga V State (1997) LPELR-1134(SC).

In addition, learned Counsel submits that the Appellant did not appeal against the finding of the lower Court which

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admitted the confessional statement in evidence. Consequently, he cannot now complain about it in this Court. Also, Counsel argues that the lack of a signature on Exhibit P2A does not invalidate the document since the Hausa version of the statement was signed by the Appellant. Counsel submits that the law does not require that the English translation of the statement to again be signed by the Appellant. Reliance is placed on State V Saidu (2019) LPELR-47397, a case which he contends, is on all fours with the facts of this case.

In respect of the submissions of Counsel for the Appellant on the reliance by the trial Court on the unsworn evidence of the prosecutrix, Counsel submits that the Court can rely on same so long as there is corroboration. Section 209(1) and (3) of the Evidence Act, 2011; & Natsaha V State (supra) are relied upon. Counsel further submits that the Appellant cannot complain in respect of Exhibit P4, the Medical Report, because it was tendered and admitted in evidence from the Bar, without any challenge to it by the Appellant. Reliance is placed on Shurumo V The State (2010) 196 LRCN 119.

Additionally, Counsel argued that

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contrary to the submission of the Appellant, the trial Court granted the Respondent leave to prefer the charge against the Appellant and three other persons. It was based upon that order that the plea of all the accused persons were taken. That their pleas were taken separately, not jointly, and that the trial Court properly recorded same. He submits that in any case, it is too late in the day for the Appellant to raise an alarm on the validity or otherwise of the charge because the appropriate time to do so in the event that a charge is defective, is before the accused person takes his plea. However, that once his plea is taken, any defect is deemed to have been waived. Reliance is placed on John V State (2019) LPELR-46936(SC). Counsel therefore urged the Court to discountenance the submissions of the Appellant and resolve this issue in favour of the Respondent.

Resolution of Issue One:
In an attempt to persuade this Court to upset the concurrent decisions of the trial Court and the Court below, learned Counsel for the Appellant has directed a battery of alleged infractions and irregularities touching on the charge of rape brought against him. He

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complains about the content of the charge and the procedure adopted at his arraignment. I have given very careful consideration to the issues canvassed by the Appellant in this regard and the responses thereto by the Respondent, vis-a-vis the facts contained in the Record of Appeal. In summary, the Appellant contends that the charge was vague in relation to the date which states that the rape occurred “sometimes in June 2018”, without giving the specific date in the month of June, 2018, secondly that there was a misjoinder of offenders as he was jointly charged along with others, and that he was made to plead to all the counts of charge. In addressing these contentions, it is imperative to first examine the contents of the charge filed by the Respondent. It was a four-count charge against the Appellant and three other persons, namely: Abdurrahman Musa, Nura Kabiru and Salisu Abdullahi. The Appellant was the 2nd accused person at the trial Court and he was covered by the second count of charge only. For ease of reference, the four counts of charge read as follows:
“FIRST HEAD OF THE CHARGE
That you, Abdurrahman Musa, ‘m’ 37 years, of Unguwar

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Duhu quarters, Kila Gwaram Local Government, Jlgawa State on the 27th day of June, 2018, at about 17:00hrs, at Kila Town, Gwaram LGA, Jigawa State, wlthln Jigawa Judicial Division did commit an illegal act, in that you had unlawful carnal knowledge of one Naja’atu Nuhu Dahiru, ‘f’ 8 years old, of the same address, and you thereby committed the offense of Rape contrary to Section 282(1) (e) of the Penal Code, Cap. P3, Laws of Jigawa State, 2012 and punishable under Section 283 of the Penal Code (Miscellaneous Amendment) Law No. 9, 2014.
SECOND HEAD OF THE CHARGE
That you, Mesara Ayuba, ‘m’, 25 years, of Kofar Gabas quarters, Kila, Gwaram Local Government, Jigawa State sometimes ln the month of June, 2018, at Kila Town, Gwaram LGA, Jigawa State within Jigawa Judicial Division did commit an Illegal act, in that you had unlawful carnal knowledge of one Usaina Nuhu, ‘f’, 12 years old, of the same address, and you thereby committed the offence of rape contrary to Section 282(1) (e) of the Penal Code, Cap. P3, Laws of Jigawa State, 2012 and punishable under Section 283 of the Penal Code (Miscellaneous Amendment) Law No. 9, 2014.

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(Emphasis supplied)
THIRD HEAD OF THE CHARGE
That you, Nura Kabiru,`m’, 26 years, of Kofar Yamma quarters, Kilo, Gwaram Local Government, Jigawa State sometimes in the month of June, 2018, at Kila Town, Gwaram LGA, Jigawa State within Jigawa Judicial Division did commit an illegal act, in that you had unlawful carnal knowledge of one Naja’atu Nuhu Dahlru, ‘f’, 8 years old, of the same address, and you thereby committed the offence of rape contrary to Section 282(1) (e) of the Penal Code, Cap. P3, Laws of Jigawa State, 2012 and punishable under Section 283 of the Penal Code (Miscellaneous Amendment) Law No. 9, 2014.
FOURTH HEAD OF THE CHARGE
That you, Salisu Abdullahl, ‘m’, 20 years, of Kofar Gabas quarters, Kila, Gwaram Local Government, Jigawa State sometimes ln the month of June, 2018, at Kilo Town, Gwaram LGA, Jigawa State within Jigawa Judicial Division did commit an Illegal act, in that you had unlawful canal knowledge of one Naja’atu Nuhu Dahiru, ‘f’, 8 years old, of the same address, and you thereby committed the offence of rape contrary to Section 282(1) (e) of the Penal Code, Cap. P3, Laws of Jigawa State, 2012

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and punishable under Section 283 of the Penal Code (Miscellaneous Amendment) Law No. 9, 2014.”

The Appellant’s first complaint is that the charge is vague in that it did not state the specific date in June, 2018 on which the incident occurred and that therefore, by Section 202 of the Criminal Procedure Code, the charge was defective. Without much ado, the law is settled that where a charge is alleged to be defective, an accused person has an unfettered right to object to it. This is because where an accused person pleads guilty to a charge, he will be deemed to have put himself up for trial. The law is that any objection to a defective charge must be taken immediately after the charge has been read to the accused, and not at any time after that. This is applicable whether the charge is a fresh or amended charge, as it will be too late in the day for an accused person to challenge his conviction on the ground of a defect on the charge at the appellate Court, unless the defect complained of is so material as to lead to a miscarriage of justice, or it goes to jurisdiction and the competence of the trial Court. See Rasheed V State

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(2014) LPELR-CA/EK/98C/2013, Ayeni V State (2011) LPELR-CA/AE/C.27/2010, Amadi V FRN (2008) 12 SC (Pt.110) 15, Shekete V Nigeria Air Force (2007) LPELR-CA/L/48/2003. In the recent decision in the case of Agaba V FRN (2022) LPELR-59891(SC) 15-17, A-B per Abba Aji, JSC, this Court had occasion to make an extensive pronouncement on a scenario very similar to the point now canvassed by the Appellant in this appeal. After considering the arguments of Counsel, his lordship held inter alia as follows –
“The appellant in the present appeal pleaded not guilty to all the changes against him without any objection to any defects in the particulars of the changes or rules against ambiguity, duplicity, misjoinder of offenders and misjoinder of offences. It is therefore ostensibly assuming and presuming that the charges against the Appellant are without iota of defects to be objected to. Obviously, the Appellant’s learned Counsel did not object to the informality or defectiveness of the predicate offence of conversion/stealing which was made bare and clear ln the particulars of the charge for which the Appellant was tried but has now made the issue of the predicate

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offence of conversion/stealing an Issue of jurisdiction of the trial Court and an Issue for no-case submission. This definitely cannot stand.
In the case of Okewu V Federal Republic of Nigeria (2012) 9 NWLR (Pt.1305) 327 at 352, paragraph E, this Court, per Ariwoola, CJN, observed that:
“If there had been any defect or an ambiguity in the charge, the appellant should not have responded with his plea when the charge was read. He should have objected at the reading of the charge. The appropriate time to complain or object to a charge as drawn up, is at the time it is being read and before the plea.”
An accused person is under obligation to raise any objection to any formal defect to a charge before he takes his plea. Where he fails to do so, he is presumed to have understood the charge preferred against him.”

Thus, what is important is that the charge in a criminal case must inform the accused person sufficiently of the allegations he is confronted with such that he is fully aware of the case he is accused of, in order to adequately prepare for his defence. The law is that where a charge is preferred, there is a presumption that every legal

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condition required by law to constitute the offence was fulfilled before the plea is taken. Thus, a charge must not contain defects or errors which could mislead an accused. However, it is noteworthy that the emphasis here is not on whether or not there are defects, errors or omissions in the charge but on whether or not those defects, errors or omissions could and did in fact mislead the accused person. Consequently, subject to this, a defect, error or omission which does not prejudice the defendant/accused person, is no ground for quashing a charge. See Ibrahim V State (2015) LPELR-40833(SC) 13- 16, E, per Nweze, JSC, John V State (2019) LPELR-46936(SC) 18-19, E-C, per Augie, JSC, Ogbomor V State (1985) 1 NWLR (Pt. 2) 22. This is also the purport of Section 206 of the Criminal Procedure Code Law. Therefore, the Court below as well as the trial Court, were on firma ferra when they held that the provision in Section 202 cannot be read in isolation, but must be read along with Section 206 of the Criminal Procedure Code to have a holistic appreciation, not only of the letter of the law, but also of the spirit of the law. For ease of reference, the

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provisions provide that –
“202. The charge shall contain such particulars as to time and place of the alleged offence and the person, if any, against whom or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he ls charged.”
“206. No error in stating an offence or the particulars required to be stated in a charge shall be regarded as material at any stage of the case unless the accused was in fact misled by such error or omission.”

From these provisions, there is no doubt that it is first the responsibility of the prosecution to furnish an accused person with the particulars as to the time and place of the offence he is alleged to have committed. These particulars must be sufficient to give him notice of the charge he is facing in Court. Nonetheless, while this is the standard, the law recognises that it may not always be possible to be exact in respect of such particulars. Therefore, the lawmakers went further to accommodate such an eventuality by inserting the provision of Section 206 of the CPC. This provision is overt and unambiguous in stating that, in the

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event that the charge does not contain all the particulars as required in Section 202, it shall not be material unless the accused person has been misled thereby. Thus, while it is evidently correct that the second count of charge directed at the Appellant did not give the specific and/or actual date in June, 2018 on which the rape took place, there were other particulars which sufficiently put the Appellant on notice of the full nature of the allegations made against him in charge. Thus, for the Appellant’s complaint in respect of the absence of a specific date in the charge, to carry any weight, the Appellant is required by law to go further to show how he was misled by this omission. Quite recently, this Court in the case of Jibrin V State (2022) 4 NWLR (pt.1820) 269 at 321, aptly dealt with a similar scenario when it stated that:
“It is notable that what is known as the main purpose of a charge ls to give an accused person notice of the case against him and so when the change contains the statement and particulars of offence with which a person as a defendant is tried before a Court of law in compliance with Section 36(6) of the Constitution of the Federal Republic of Nigeria,
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same is sufficient to invoke the jurisdiction of the Court to try the defendant or accused of the offence charged.”
See also State V Isijola (2023) LPELR-59935(SC). Clearly, no attempt was made by the Appellant to do so, either in this Court or at the Court below or even at the trial Court. Indeed, the Record of Appeal discloses that the Appellant did not raise any objection to the charge when it was read to him. This is notwithstanding the fact that the Appellant was ably represented by Counsel from the onset of his trial, to wit at his arraignment. Yet, neither the Appellant nor his Counsel raised an objection to the charge nor raised an alarm on the absence of the specific date on which the rape occurred. Rather, from the evidence of the prosecution witnesses subsequently presented, the Appellant was put on notice of all the details of the offence of rape alleged against him, before he entered his defence. See the evidence of PW5 – the victim/prosecutrix, PW2 –the mother of the victim, and the Medical Report – Exhibit PW4. As a result, the Appellant has failed to show how he was misled by the absence of the

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actual date in June 2018 when the offence was committed in the charge. Therefore, Section 202 of the CPC does not avail the Appellant to cause this Court to review the decision of the Court below on this wicket. See the case of Ankpegher V The State (2018) LPELR-43906. This Court was faced with a similar situation in the case of Olugbemi V State (2023) LPELR-60331(SC), where it held that:
“The Appellant’s Counsel has made heavy weather about the contents of the information paper and how it falls short of the provision of Section 36(6)(a) of the Constitution and therefore renders the trial a nullity. The Appellant’s Counsel should know better. It ls a trite principle of law in our judicial system that the appropriate time to raise an objection to a charge ls at the time of arraignment … It is noteworthy that the Appellant in this case did not object to the reading of the information paper when his plea was taken at the commencement of his trial. There was no indication that the Appellant did not understand the content of the charge before he gave his plea of “not guilty”. The Rules of Court make it mandatory for the Appellant to be asked if he

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understood the contents of the charge read to him before taking his plea. Same was done in this case as can be shown from the record. More so, Section 36(6)(a) of the 1999 Constitution on which the Appellant relies heavily provides thus:
36. Every person who is charged with a criminal offence shall be entitled to: a. be informed promptly in the language that he understands and in detail of the nature of the offence.
The particulars of offence under count 1 of the information sheet reads thus:
“KEHINDE OLUGBEMI (M) sometimes in June 2013 at Ogun State High Court, Isabo in the Abeokuta Judicial Division, being under the employment of the Ogun State Judiciary, as Bailiff, corruptly benefited N3,100,000 (Three Million, One Hundred Thousand Naira).”
This sufficiently sots out the time, circumstances, offence and the amount involved. The Appellant has not shown any miscarriage of Justice by this argument.”

The next port of call is that the Appellant has sought to make heavy weather of the fact that the victim, PW5, in her evidence kept referring to herself in the plural, to wit: “us”. He contends that this rendered the evidence both vague

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and incoherent as it suggests that he raped the victim, as well as others, and that it also suggests that he raped her on more than one occasion. I have read and re-read the victim’s evidence as contained in the Record of Appeal and I am hard-put to understand what this submission is expected to achieve. From a comprehensive reading of the four-count charge, as well as the entire evidence adduced by the prosecution through five witnesses and six exhibits, it is evident that the Appellant and three other persons were charged for raping PW5, a 12-year-old girl, and her sister, PW4, an 8-year-old girl, on several occasions when they were sent on errands by their parents. Each count of the charge clearly spelt out and itemized the specific allegation against each of the four accused persons. Thus, whereas the three other co-accused persons were charged with raping PW5’s 8-year-old sister multiple times, the Appellant, by count two of the charge, was only charged with having carnal knowledge of PW5 “sometime in June, 2018”. There was nothing vague or incoherent about the charge. The reference to “us” by the PW5 in her evidence was clearly in relation to PW5 and

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her 8-year-old sister. This is because, from both their testimonies, the accused persons, including the Appellant, lured them together to their rooms on several occasions when they were sent on errands by their father to charge his phone. That the Appellant was only charged on one count of rape despite the evidence of PW5, is surprising. What is more astonishing is that the Appellant seems to be complaining that he was not charged on multiple counts of rape as disclosed in the evidence of PW5. That was however the prerogative of the prosecution based on the evidence available to it.

The Appellant has also contended that the ingredients of the offence of rape under Section 282(1) of the Penal Code Law (supra) were not proved. The section provides that –
“282. (1) A man ls 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) with her consent, when her consent has been obtained by putting her in the fear of death or of hurt;
d) with her consent when the man knows that he is not her husband

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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.”
For a charge under this provision, which is punishable under Section 283 of the Penal Code Law (supra), the prosecution is required to prove the following ingredients of the offence of rape –
(a) that the accused had sexual intercourse with the woman in question.
(b) that the act was done in circumstances falling under any of the five paragraphs in Section 282(1).
(c) that the woman was not the wife of the deceased; or if she was, she had not attained puberty;
(d) that there was penetration.

The Court below dutifully analysed the evidence adduced before the trial Court through the evidence of PW1, PW2, PW3, PW4 and PW5, as well as the exhibits tendered, in particular, Exhibits P2A and P2B – the Hausa and English versions of the Appellant’s confessional statement, as well as the Medical Report, Exhibit P4, issued upon the medical examination of PW5. It made extensive findings which were in tandem with the

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facts, and thereafter, correctly applied the law thereto. See in particular pages 248-271 of the Record of Appeal. In particular, the Court attached much weight to the evidence of PW5 – the victim, PW2 – her mother, PW4 – her 8-year-old sister, and PW1 – the Investigating Police Officer (IPO) to whom the Appellant made his confessional statement – Exhibits P2A and P2B. In particular, the Court below held inter alia thus at page 264 of the Record of Appeal:
“Now upon a careful perusal of the evidence led at the trial, both oral and documentary, I come to the conclusion that the evidence of the prosecutrlx is corroborated in some material particular in the confessional statement of the accused Exhibit P2 and P2A; in the medical report, Exhibit P4 and the evidence of PW2 (the prosecutrix’s mother). The trial Court ls therefore right in Its holding that the evidence of the prosecutrlx is acceptable.”

The Appellant has failed to impugn these sound findings. Therefore, I cannot see my way clear to interfere with them. My reason is not farfetched. Vide the following pieces of evidence, the prosecution proved all three ingredients of the offence of rape

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against the Appellant to the standard required by law, which is beyond reasonable doubt:
1) That the Appellant had sexual intercourse with Usaina Nuhu, the prosecutrix (PW5) – see the confessional statement of the Appellant himself – Exhibits P2 and P2A (at pages 76-78 of the Record), where he gave a detailed description of how he (Appellant) had sexual intercourse with PW5 when she was sent by her father to charge his phone. These facts in his confessional statement corroborated the unsworn evidence of the PW5 in every significant material particular. In addition to this, was the circumstantial evidence in the form of the evidence of PW5’s sister – PW4, who witnessed the incident and was herself a victim of rape by the Appellant’s co-accused persons at the same venue; as well as the evidence of the mother of the two girls who, upon observation and examination of her daughters when they came home, discovered what had happened to them and promptly informed their father -PW2, who then lodged a report with the Police.
2) Secondly, the act was done in circumstances falling under one of the five paragraphs of Section 282(1) of the Penal Code Law, to wit:

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paragraph (e) thereof, in that the victim, PW5 was 12 years old, and so below 14 years of age. The evidence adduced in this regard was cogent and cohesive and was not disputed by the Appellant in his confessional statement, which was given at the earliest opportunity when the incident was still fresh in his mind.
3) It is not in contention that PW5 was not the wife of the Appellant.
4) Finally, the Medical Report issued upon the examination of PW5, indicated that there was certainly penetration as her hymen was broken/absent, notwithstanding that no injuries were seen. This was the final stamp of corroboration of the evidence of PW5 that the Appellant had sexual intercourse with her, and the Appellant’s own confession that he did indeed have sexual intercourse with her.

I am therefore fully satisfied that the Court below came to a right decision when it found that the trial Court came to a right determination that all the ingredients of the offence of rape as charged were proved against the Appellant.

The Appellant has raised a number of other issues which may be necessary to consider before I conclude on this issue. It is surprising that

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at this stage of proceedings on appeal to this Court, the Appellant has yet again raised the spectre of the voluntariness of his confessional statement, Exhibits P2 and P2A. From the Record of Appeal, at the time the Appellant’s statement was tendered in evidence through PW1 (the IPO), the Appellant contested its voluntariness and also denied making same. The trial Court therefore rightly proceeded to conduct a trial-within-trial in which evidence was taken from both sides. At the close of this special mode of trial, the learned trial Judge ruled that the statement was made voluntarily, as the Appellant failed to impugn and dislodge the evidence of the prosecution which was offered thereon. The PW1 to whom the Appellant made the statement in Hausa language and who recorded it in the same language in which it was given, and then translated it into English language, testified and was extensively cross-examined by Counsel for the Appellant. There is no appeal against the ruling of the trial Court that the confessional statement was given voluntarily by the Appellant. Therefore, it is inappropriate for the Appellant to again canvass the issue of the voluntariness

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of the confessional statement in this Court.

In the case of Habibu V State (2023) LPELR-60351 (SC), this Court per Jauro, JSC stated that:
“…An accused person will not be permitted to challenge the admissibility of a confessional statement even at the trial Court after same has been tendered. See Yelli V The State (2022) LPELR-57865(SC), Akinkunmi V The State (2022) LPELR-57285(SC), Usman V The State (2019) LPELR47396 (SC). Accordingly, this issue raised by the Appellant has no chance of success before this Court.”

Secondly, the Appellant has contended that Exhibit P2A is a worthless document because it was neither signed by him nor by PW1. This document is the English translation of the Hausa statement of the Appellant which he made to PW1 after having been cautioned, which words of caution he signed. Thereafter, it was PW1, the recorder, who also translated the confessional statement made and recorded in Hausa – Exhibit P2, into English language. A thorough examination of both documents reveals that, contrary to the contention of the Appellant, he (the Appellant) duly signed the statement which he made in Hausa, while PW1, who received and

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recorded the Appellant’s statement in the same language, i.e. Hausa language, thereafter translated it into English language – Exhibit P2A. I have again examined Exhibit P2A and it was clearly signed by PW1 as the translator/interpreter. This submission is therefore misconceived and even smacks of mischief, as it is inconceivable that Counsel for the Appellant did not cross-check his facts before he made this submission. In conclusion, much as the Appellant has made a song and a dance on his confessional statement, all it amounts to is nothing but a storm in a teacup.

Yet again, the Appellant has sought to impugn the Medical Report – Exhibit P4, on two grounds, to wit: (i) that it did not prove penetration of the PW5 by the Appellant, and (ii) that the Medical Doctor who issued the report was not invited to testify and “give evidence or make explanations”. In respect of the first point with regard to the proof of penetration, that issue has already been dealt with earlier in the body of this judgment, therefore it will serve no useful purpose to rehash my findings again here. Suffice it to say that, even without the Medical Report which clearly

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stated that the hymen of the 12-year-old victim was broken, indicating that she was indeed penetrated, any gaps in the evidence there may have been to link the Appellant to the penetration of the PW5, was amply supplied by PW5, as well as the Appellant himself, vide his confessional statement.

ln respect of the second point raised, which is that the Medical Doctor who issued the Report was not called as a witness and so no weight should have been attached to the document, Section 249(2) & (4) of the Criminal Procedure Code Law (supra) clearly permits a Court to receive a written report issued by a Medical Officer or registered Medical Practitioner in evidence after he has examined any person for the purpose of proving the condition and/or the nature of injuries received by such person. If by reason of any disagreement or otherwise, it appears desirable for the ends of justice that such a Medical Officer or registered Medical Practitioner shall attend and give evidence in person, the Court shall summon him as a witness. In the instant case, the Record of Appeal does not disclose that the Appellant, who was well represented by Counsel at the trial

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Court, made any request for the Medical Officer who issued the Report, Exhibit P4, to be summoned by the trial Court for any clarification or cross-examination. Therefore, he cannot be heard to complain on appeal to this Court or even to the Court below. The Court below therefore acted rightly when it discountenanced this submission as it was uncalled for. See Mu’azu V State (2022) LPELR-57534(SC).

The Appellant has also made heavy weather of the fact that, after the IPO had testified as PW1 and tendered the confessional statement, which was subjected to a trial-within-trial to determine its voluntariness or otherwise in the light of the allegation by the Appellant that it was not voluntary, he did not return to be cross-examined by the Appellant. He argues that PW1 claimed that he was the recorder and interpreter of the Appellant’s confessional statement, and yet he (Appellant) was not availed the opportunity to test the veracity and authenticity of the interpreter who recorded his statement. Therefore, that his right to fair hearing under Section 33(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended (CFR) had been breached. Upon

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a close scrutiny of pages 14-15 of the Record of Appeal, I must say that I agree with the Court below that the Appellant, having contested the voluntariness of the confessional statement, the PW1 testified in the trial-within-trial as the IPO who recorded and translated the statement. He was thereafter extensively cross-examined by the Appellant’s Counsel thereon. Therefore, it is not correct to say that the Appellant was not given an opportunity to cross-examine PW1 on the issues surrounding the confessional statement.

However, I take note of the fact that after the-trial-within-trial, there was no further cross-examination or reexamination of the witness. Nonetheless, given the limited and specific nature of his evidence which principally revolved around the said confessional statement, the Appellant has not shown how he was prejudiced by the failure to further cross-examine PW1 or how a miscarriage of justice has been occasioned. This is because his Counsel cross-examined PW1 extensively during the trial-within-trial and no further evidence outside the confessional statement was given by him (PW1) as, that was the limit of his investigation into the

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offence alleged against the Appellant. Thus, the assertion by the Appellant that his right to fair hearing was breached, is not borne out by the evidence on record, and so, without basis. See Obasan V Abudu & Ors (2023) LPELR-59944(SC) where this Court held per Jauro, JSC that:
“Fair hearing or lack of it depends on the procedure followed in a case. When a party alleges that his fundamental right to fair hearing has been broached, the question to consider ls not whether injustice has been done because of the lack of hearing, it is whether a party entitled to be heard before deciding an Issue had in fact been given an opportunity of a hearing.”

Closely related to this is the strange contestation of the Appellant that PW1, who was the recorder and interpreter of the confessional statement, Exhibits P2 and P2A, having not been cross-examined after the trial-within-trial, the confessional statement should not have been used in convicting him. He contends that this is more so that Exhibits P2 and P2A did not bear the name and signatures of the recorder and the interpreter. I have already addressed the latter point and found this contention as both

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factually incorrect and misleading. On whether it was appropriate for the Court to have countenanced and given weight to the confessional statement, there was no obstacle which could have hindered the trial Court from proceeding as it did. This is because the trial Court found that the statement was voluntarily made. That being so, the statement was the personal explanation of the Appellant in respect of the allegation against him, wherein he gave a vivid account of the incident and how he dealt with the victim on the date in question. His statement was clear, cogent, direct, positive cohesive, unequivocal and rhymed completely with the account of the PW5 on how the Appellant had sexual intercourse with her sometime in June, 2018. This was the statement of the Appellant given to the Police at the earliest opportunity after he was arrested, when details of the event were still quite clear in his memory. This Court has held in the case of Natsaha V The State (2017) LPELR-42359(SC) that –
“It is trite law that an accused person can be convicted on his confession alone. A voluntary confession of guilt by an accused is sufficient to warrant conviction without

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corroborative evidence if it is direct, positive, duly made and satisfactorily proved.” The fact that the Appellant subsequently retracted the confessional statement during his defence in Court, is of no moment as this is very common with accused persons in criminal trials when the full weight of their crime becomes obvious to them. See Aliyu V State (2023) LPELR-60335(SC). It is due to this that this Court, again in the case of Yusuf V The State (2019) LPELR-46945(SC) stated –
“The concept of this trial or trial within trial is a design to safeguard the interest of the accused person. It also strengthens the constitutional presumption of innocence until the guilt of the accused is proved beyond reasonable doubt … A verdict upon the trial within trial enjoys the presumption of regularity under Section 168(1) of the Evidence Act, 2011. It is for this reason that Ngwuta, JSC stated in Bouwor V The State (2016) LPELR-26054(SC) that once the trial Court ruled that the extra-judicial statement was made voluntarily and it is admitted in evidence, the accused person subsequently in his appeal, cannot be heard to argue that he did not make the confession

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voluntarily without impugning the trial within trial. The trial Court can convict on such confessional statement admitted in evidence upon trial within trial even without any corroborative evidence so long as the Court is satisfied of the truth of the confession … The logic in this reasoning is that every decision of a Court of competent jurisdiction remains valid until set aside.” As was stated earlier, the Appellant did not appeal against the decision of the trial Court in the trial-within-trial wherein the confessional statement was found to have been made voluntarily and was duly admitted in evidence. Therefore, the decision remains valid and subsisting. Therefore, it was right and proper for the trial Court to have acted on it, and for the Court below to have affirmed its decision thereon. In addition to the confessional statement, there were other pieces of evidence placed before the trial Court that corroborated it and made it probable that the confession was true. These are: the testimonies of the prosecution witnesses, in particular, that of the victim – PW5, her mother – PW2 and the contents of the Medical Report -Exhibit P4. It is

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significant that the latter document was admitted without any objection from the Appellant.

The Appellant has also canvassed the argument that the arraignment, the trial and conviction of the Appellant was fraught with irregularities and a lack of fair hearing for the following reasons:
i. That the charge sheet is bad for misjoinder of offenders;
ii. That no formal charge was preferred against the Appellant, as the charge he pleaded to was that attached to the application for leave to prefer a charge;
iii. That the Appellant pleaded to four counts of charge rather than the sole count of rape for which he was charged;
iv. That the allegation against him was not thoroughly investigated.

I have examined procedure adopted by the Court at pages 1- 5 of the Record of Appeal. Therein, it is disclosed that after the trial Court granted the prosecution’s application for leave to prefer the charge against all four accused persons, inclusive of the Appellant, the four-count charge was duly read to the accused persons and they were individually asked if they understood the charge. They were then asked to plead to same. Their answers and pleas

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to each count of charge were duly recorded by the learned trial Judge. As earlier stated, the allegation against the Appellant of having carnal knowledge of PW5, a 12-year-old girl, was contained in the second count of charge. The Appellant pleaded clearly that he understood the charge and that he was not guilty. Thereafter, the prosecution was called upon to adduce evidence to prove the allegation against the Appellant as contained in the second count of charge. In so doing, the trial Court complied with the requirements of the law that the charge be duly read to the accused and he be given the opportunity of making his plea thereto. I note that even though the Appellant was not accused of being a participant in the offences alleged in counts one, three and four, he still pleaded not guilty to them. While this may be considered a tad bit irregular, the Appellant has not shown how he was prejudiced thereby since he was only tried on the offence alleged in count two of the charge, and thereafter only convicted on the same count two. Therefore, no miscarriage of justice has been shown to have been occasioned thereby.

In addition, the law is settled that any

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objection to a charge for a formal defect on the face of it shall be taken immediately after the charge has been read over to the accused, and not later. In this case, the timing or stage in which the Appellant has raised the complaint, is belated. Furthermore, count two of the charge against the Appellant described an offence known to law, it was read to the Appellant, he understood it and said so, and he pleaded not guilty to the allegation contained therein. As has been rightly pointed out by the Respondent, neither the Appellant nor his Counsel raised any objection to any defect in the charge. Once the plea is taken, the accused person is presumed to have perfectly understood the charge and to have waived any defect(s) he may decide to raise against the charge subsequently. It is too late in the day to do so now. See John V The State (2019) LPELR-46936(SC) & Habibu V State (2023) LPELR-60351(SC). Thus, based on all these findings, I resolve issue one against the Appellant.

Issue two – Whether the Court below was right whom it set aside the 7 years imprisonment sentence imposed by the trial Court on the Appellant and instead, imposed and

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sentenced the Appellant to life imprisonment pursuant to the mandatory provisions of Section 283 of the Penal Code (Miscellaneous Amendment) Law No. 9 of 2014.

Under this issue, learned Counsel for the Appellant submits that the word “shall” used in Section 283 of the Penal Code Law of Jigawa State, 2014 does not denote an obligation or a command. He contends that it is not in all cases that the word “shall” is construed as being obligatory. Rather, that it was used in its permissive sense, thus giving the trial Court some discretion to exercise in imposing sentence. He relies on the case of Katto V CBN (1991) 12 SCNJ 1,17. He urged the Court to resolve this issue in favour of the Appellant and thus, to set aside the conviction of the Appellant. In its stead, to make an order of discharge and acquittal of the Appellant.

Learned Counsel for the Respondent, on his part, argued au contraire that the provision of Section 283 of the Penal Code Law (supra) stipulates a mandatory punishment and does not give room for the exercise of discretion. He submits that in the interpretation of a statute, the natural and literal meaning should be employed. Thus,

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that the word “shall” used in the provision is mandatory and obligatory, not an option. He relied on Ezeani V FRN (2019) LPELR-46800(SC); & Gideon & Ors V State (2016) LPELR-40322. Counsel then urged the Court to discountenance the argument of the Appellant and to resolve issue two in favour of the Respondent.

Resolution of Issue two:
The starting point in the resolution of this issue is to examine the wordings of the punishment section for rape under the relevant law, i.e., Section 283 of the Penal Code Law (supra). It provides –
“283. Notwithstanding the provisions of any other law to the contrary but subject to Section 285, whoever commits rape shall be punished with imprisonment for life or for a term not less than ten years, and where the rape falls under paragraph (e) of Section 282, shall be punished with imprisonment for life.”
It is self-evident from a literal interpretation of the provision that there are two parts to the law. In the first part, the offence of rape under paragraphs (a)-(d) of Section 282 of the Penal Code Law (supra) applicable to Jigawa State is punishable with imprisonment for life OR for a term

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of imprisonment of not less than 10 years. However, the Lawmakers found a need to make a separate provision for the rape of minors under the age of 14 years, when it specifically provided that, where the rape falls under the category provided in paragraph (e) of Section 282, it shall be punished with imprisonment for life. With this emphasis on the penalty for offenders who engage in the heinous and perverted sexual violation of young girls of under the age of 14 years, it is emphatic that the punishment must be life imprisonment without an option of fine. This is a fixed and immutable time which, like the Rock of Gibraltar and Mount Zion, can neither be moved, shifted or tampered with by any Judge. As was stated by the Court below and learned Counsel for the Respondent, this fetters the discretion of the Court from pronouncing any other sentence upon an accused person convicted under this law, to any term of imprisonment less than life imprisonment.

The law is settled that where a law prescribes a mandatory sentence in clear terms, Courts are bereft of jurisdiction to impose anything less than the mandatory sentence, as no discretion exists to be exercised.

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See Mohammed V AG Federation (2020) LPELR-52526(SC), Ezeani V FRN (2019) LPELR-46800(SC), Afolabi V The State (2013) LPELR-20700(SC), Amoshima V The State (2011) 14 NWLR (Pt.1268) 530, A-C. In the result, this issue is also resolved against the Appellant.

Having resolved both issues for determination against the Appellant, I find the appeal completely devoid of merit. It fails and is dismissed.

Accordingly, I affirm the judgment of the Court of Appeal in Appeal No. CA/K/17A/C/2020 delivered on 8th October, 2021. I also affirm the conviction and sentence of life imprisonment imposed on the Appellant.