Proof Of The Offence of Rape

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 24h day of February, 2023

Before Their Lordships

Mohammed Lawal Garba

Helen Moronkeji Ogunwumiju

Ibrahim Mohammed Musa Saulawa

Adamu Jauro

Emmanuel Akomaye Agim

Justices, Supreme Court

SC.689/2018

Between

ISHAYAKU HABIBU                      APPELLANT

                                 And

THE STATE RESPONDENT

(Lead Judgement delivered by Honourable Adamu Jauro, JSC)

Facts

The Appellant was arraigned on a one-count charge of rape, contrary to Section 282(1)(e) of the Penal Code, Laws of Jigawa State 2012, as amended and punishable under Section 283 thereto. He was alleged to have had carnal knowledge of a 5 year-old girl. During the trial, the Respondent called four witnesses, that is, Ibrahim Dahiru (PW1), a member of the Hisbah Board who arrested the Appellant; the 5 year old victim (PW2); the father of the victim (PW3); and a Police officer (PW4) through whom the Hausa and English versions of the Appellant’s confessional statements (Exhibit A1 and A2), were tendered.

The case of the Respondent was that the Appellant, on or about 19th November, 2015, raped PW2 when she went to buy groundnut. PW2 testified on how the Appellant called her, pinned her down before removing his trousers and forcefully inserted his penis in her vagina. PW1 in his testimony confirmed that the pant and thighs of PW2 had semen stains when he met with her and her parents, after a report of the incident was made to him.

The Appellant testified alone in his defence at the trial, and denied committing the offence. During the pendency of the case, the trial Judge who was sitting and hearing the charge at the Ringim Judicial Division was appointed by the Chief Judge of Jigawa State to sit as a vacation Judge at Dutse Judicial Division. Thereafter, the trial judge continued with the hearing of the charge at the Dutse Division, while performing his duty as a vacation Judge. At the conclusion of the trial, the trial court convicted the Appellant for the offence of rape, and sentenced him to life imprisonment.

Dissatisfied, the Appellant lodged an appeal at the Court of Appeal. The appeal was found to be lacking in merit and consequently, dismissed. The Appellant further appealed to the Supreme Court.

Issue for Determination 

The Court adopted the sole issue formulated by the Appellant, for purpose of determining the appeal, to wit:

Whether the lower court was right in resolving in favour of the Respondent, all the issues raised before it by the Appellant, thereby dismissing the appeal?

Arguments

Counsel for the Appellant contended that the trial court ought not to have assumed jurisdiction over the trial, as a vacation Judge in Dutse Judicial Division. He submitted that even though the Chief Judge of Jigawa State transferred the trial Judge from Ringim Division to Dutse Division as a vacation Judge, the cases being heard by the trial Judge at the Ringim Division were not transferred with him, and the trial Judge was wrong to have arbitrarily transferred the Appellant’s case to Dutse Division.

Counsel also argued that the evidence of PW1 and PW3 were inadmissible hearsay evidence, and the trial court wrongly admitted the same. He argued further that the evidence of PW2, a child under the age of 14, required corroboration under the Evidence Act, and the Court of Appeal was wrong to have upheld the trial court’s reliance on the evidence of PW1 and PW3 who were not at the scene of the crime, as corroborating PW2’s evidence on penetration.

He also argued that Section 283 of the Penal Code, Laws of Jigawa State 2012 under which the Appellant was charged does not prescribe a mandatory punishment for the offence, and his conviction under the subsequent amendment which provided for a mandatory punishment, without any amendment of the charge occasioned a miscarriage of justice on the Appellant. He contended that the Respondent withheld evidence by refusing to call the medical doctor who examined PW2, or tender a medical report and PW2’s pant showing sperm stains.

In reaction, learned Attorney-General submitted that the High Court of Jigawa State is a single court with several divisions created for administrative convenience, and the mere transfer of Judges to other judicial divisions does not operate to oust the court’s jurisdiction. He submitted that the fact that the trial Judge transferred the suit from Ringim to Dutse as a vacation Judge did not oust the court’s jurisdiction, since the same Judge heard the matter from commencement to conclusion.

He argued further that the oral testimonies of the Respondent’s witnesses and the confessional statements of the Appellant, established the offence of rape against the Appellant beyond reasonable doubt. He contended that the evidence of PW1 and PW3 were direct evidence and not hearsay, and the argument of the Appellant that the evidence of PW2 is unreliable because it is the evidence of an unsworn minor is unfounded. He submitted that the evidence on record proved penetration, and there was no need for medical evidence to establish penetration.

Court’s Judgement and Rationale 

In determining the appeal, the Apex Court, relying on Section 270(1) of the Constitution of the Federal Republic of Nigeria, 1999, held that the Constitution only created one High Court for each State of the Federation and the jurisdiction of the High Court of a State, though divided into Judicial Divisions, remain one and unbroken. The Court held that the creation of Judicial Divisions is for convenient dispatch of business of court, and the issue of transfer of Judges or assignment of cases is purely an administrative issue that does not go to the jurisdiction of the court. Therefore, a court that validly assumed jurisdiction over a matter in one jurisdiction is not divested of jurisdiction, by the mere fact that it sits in another Judicial Division of the same court and whether the trial Judge sat on the matter at Ringim Division or at Dutse Division, the Judge still presided over the case in the single High Court of Jigawa State, and was at no time divested of jurisdiction.

On the Appellant’s contention that the evidence of PW1 and PW3 amounted to inadmissible hearsay, the court held that the evidence of a statement made to a witness by a person who is not himself called as a witness will not be said to be hearsay and inadmissible, if it proposes to establish by evidence not the truth of a statement, but the fact that it was said. Relying on OKEREMUTE v STATE (2021) 16 NWLR (PT. 1803) 587, the Court held that in the instant case, PW1 did not state that he was told the age of PW2 in order to establish its truth, as PW2’s age was never made an issue. He only gave the testimony, to simply establish what he was told. The testimony of PW3 regarding PW2 being taken to the hospital after the rape incident, was also to establish what he was told. The evidence of PW1 and PW3 are therefore, not inadmissible hearsay.

Regarding the reliability or otherwise of the testimony of PW2, the court held that by Section 175(1) of the Evidence Act, all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind or any other scause of the same kind. The Court held it was evident from the records that PW2’s rational, lucid and sound answers to the questions put to her at the trial and her account of how the Appellant raped her and injured her vagina as a result, showed that she possessed sufficient intelligence to justify the reception of her evidence and she understood the duty of telling the truth, even though she was a child. This thus qualified her as a competent witness under Section 175(1) of the Evidence Act and the evidence of PW1 and PW3 provided the needed corroboration.

On whether the offence of rape was proved against the Respondent beyond reasonable doubt, the Court held that once it is proved that a person standing trial for the offence of rape had carnal knowledge of a girl under the age of 14, the accused person is automatically guilty of the offence of rape as a girl under the age of 14 is incapable of giving consent under the Penal Code. The Court held that the most important and essential ingredient of the offence of rape is penetration, and the Court will deem that sexual intercourse is complete upon proof of penetration of the penis into the vagina. Any or even the slightest penetration will be sufficient to constitute the act of sexual intercourse. The Court further held that medical evidence in rape cases is not sine qua non for the conviction of an accused person, and what is required is for the prosecution to prove the guilt of the accused person beyond reasonable doubt through eyewitness testimony, confessional statement and/or circumstantial evidence. In the instant case, PW2 gave unchallenged evidence of penetration, which was corroborated by the evidence of PW1 and PW3. The Appellant also confessed to the crime thereby rendering unnecessary, the need for medical evidence.

On the Appellant’s complaint on his sentence under an amended law, the Apex Court held that Section 3 of the Jigawa State Penal Code (Miscellaneous Amendment) Law, 2014 which deleted the erstwhile Section 283 of the Penal Code, 2012 and replaced it with a mandatory sentence of life imprisonment where the rape involves a girl under the age of 14 or a woman of unsound mind, took effect before the Appellant was charged to court. Any reference to Section 283 would thus, refer to the punishment introduced in the 2014 Amendment Law, and not the punishment contained in the law before the amendment. There was therefore, no need for the Appellant to amend the charge.

Appeal Dismissed. 

Representation

Garba Abubakar Esq. with Kabiru Adamu Esq. for the Appellant.

Dr Musa Adamu Aliyu Esq. with others for the Respondent.