INTRODUCTION
The Supreme Court in a decision delivered on Friday, 8th April 2022, upheld the conviction and sentence of a man to life imprisonment for the rape of a 7-year-old child, based on a combination of oral testimony and medical evidence.
NOTABLE MAXIM
‘’in the case of rape in a rural area, it is not compulsory that the medical report of rape be tendered. In the circumstances of this case, in a rural area where there are no special facilities to examine and to assemble a proper rape kit, the evidence of the minor or victim corroborated by a credible eyewitness is sufficient. That is not to say, tendering a medical report through a medical doctor does not improve the case of the prosecution, the point is that not tendering a medical report through a medical doctor does not vitiate the case of prosecution.’’
FACTS
A seven-year-old girl: Asisa Sirajo was baking clay in the company of her relatives when Isyaku Mu’azu called her to collect an iron material from an uncompleted building. Upon entering the building, Muazu pinned her down and inserted his member into her private part and mouth. Asisa screamed for help, which made Abba, another child of about 10 years run into the building and witness the dastardly action of Muazu. Upon noticing that Abba saw the criminal act, Muazu threw Asisa out of the building.
The case was reported to the Village Head by Asisa’s father, who in turn reported it to the Police and Muazu was charged on two counts of:
- Rape contrary to the provisions of Section 282(1)(e) of the Penal Code Law, Cap. P3, Laws of Jigawa State, Vol. 3, 2012; and
- Act of gross indecency contrary to the provisions of Section 285 of the same law.
The Nigeria Police Force tendered the medical report and hospital card of the Survivor and the confessional statement of the perpetrator.
Upon the conclusion of the trial, Muazu was convicted and sentenced to life imprisonment for the offence of rape punishable under Section 283 and four years imprisonment and a fine of N10,000 for the offence of gross indecency under Section 285 of the Jigawa State Penal Code Law CAP P. 3 Laws of Jigawa State respectively.
Dissatisfied with his conviction by the trial Court, Muazu appealed to the Court of Appeal, which dismissed his appeal and upheld the decision of the trial Court. Muazu thereafter further appealed to the Supreme Court. The right to appeal is a constitutional right and parties.
ISSUES
Whether having regards to the applicable laws vis-a-vis the facts before it, the lower Court was right in dismissing the appeal and went ahead to affirm the conviction and sentences of the Appellant as entered by the trial Court on the two-count charge against the Appellant.
SUMMARY OF DECISION
Honourable Justice Helen M. Ogunwumi JSC, who delivered the lead judgement restated the well-settled principle of law to the effect that the guilt of a Defendant charged with the commission of an offence can be established by any of the following:
- The confessional statement of Defendant.
- Circumstantial evidence.
- Evidence of an eyewitness.
Her Lordship referred to the cases of: OKANLAWON V. STATE (2015) 17 NWLR PT. 1489 Pg. 445 at 479, Paragraphs B-C; ALUFOHAI V. STATE (2015) 3 NWLR Pt. 1445 Pg. 172; BILLE V. STATE (2016) 15NWLR Pt. 1536 Pg. 363 at 381 and DELE V. STATE (2011) 1 NWLR Pt. 1229 Pg. 508.
The Court praised the action of the trial Judge for transferring the matter from Ringim to Dutse, where the trial Court was posted to as a vacation Judge, so as to ensure that the matter was heard timeously. The Court clarified that issues of Judicial Divisions, transfer orders and like matters being strictly administrative, do not go to jurisdiction.
The Court disagreed with the attack of Counsel to Muazu on the admissibility of the medical report on grounds that the maker of the report was not called to tender it. The reason for the upholding of the admissibility of the report was the provisions of Section 55(1) of the Evidence Act and Sections 249(3) and 250A of the Criminal Procedure Code Jigawa State, to the effect that an Expert report may be admitted without calling the Expert.
The Court also pointed out that the only instance where the admissibility of the medical report can be challenged is where it is alleged that the report bears the signature of somebody else other than that of a medical practitioner.
The Court dismissed the claim by Counsel to Muazu that penetration was not proven at the trial Court, but upheld the findings of the Court of Appeal that:
“A study of the evidence on record and the applicable law revealed that there is really no contradiction between the evidence of P.W.1 and P.W.2 on the fact of penetration or whether the Appellant had sexual intercourse with the victim. The unambiguous evidence of P.W.1 and P.W.2 earlier reproduced are in unison that the appellant had both sexual and oral intercourse with P.W.1. There is also no contradiction between the evidence of P.W.1 and P.W.2 and the contents of the Exhibits A & B on the fact of penetration as exhibits A and B state that there was visible vaginal orifice smeared with semen which supports at least a slight or partial penetration sufficient to prove sexual intercourse.”
COMMENTS
The Survivor, in this case, was eloquent and able to answer questions clearly, which made the Court confident to rely upon her oral testimony in accordance with Section 209 of the Evidence Act, 2011. Please note that the ability of a child to give oral testimony is largely influenced by the attitude of the first Responders, who must make the child feel safe, ask questions in a calm and supportive manner and always let the child know that the choice to speak up is totally theirs.
There was also clear, cogent and unshakeable oral testimony by an eyewitness.
The medical report also served as a hanger upon which the oral testimonies were tested, which contributed to the conviction.
CONCLUSION
The case once again highlights the high level of desirability of medical evidence in rape and other SGBV cases. Situations, where an eyewitness exists, may be few and far in between, hence the need for medical evidence cannot be overemphasised. This decision however represents a re-statement of the correct and general principle of law applicable to criminal matters, including rape, to the effect that there exist different methods of proof of criminal liability, such as oral testimony and confession. Thus trial Judges must not restrict proof in rape cases to the existence of a rape kit no matter how desirable.
