AHMED v. THE NIGERIAN ARMY (2016)

In The Supreme Court of Nigeria

On Friday, the 1st day of July, 2016

SC.223/2013

Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria


Between

CORPORAL ISAH AHMED- Appellant

AND

THE NIGERIAN ARMY- Respondent

…………………….A…………………….

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.:(Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Abuja Division delivered on 18th March 2010 affirming the decision of the General Court Marshal sitting at Officers Mess Mogadishu Cantonment, Abuja delivered on 29th August 2005, which found the appellant guilty on a one count charge of defilement contrary to Section 78 of the Armed Forces Act Cap.
A20 Laws of the Federation of Nigeria (LFN) 2004 and sentenced him to a term of four years imprisonment.
The charge against the appellant is as follows:
“The accused 91NA/32/4119 Cpl Isah Ahmed AHQ Gar being a person subject to service Law is charged with:
Statement of offence: DEFILEMENT CONTRARY TO SECTION 78 OF THE ARMED FORCES CAP A20 LAWS OF THE FEDERATION OF NIGERIA, 2004, Particulars of offence: In that he at Abuja between Jan 04 and March 05 had carnal knowledge of Miss Ruth Waziri, a girl under the age of 16.”
He pleaded not guilty. In proof of the charge, the prosecution called 5 witnesses and tendered 6 exhibits marked Exhibits P1, P2, P3, P4, P5 and P6 respectively. The appellant called 2 witnesses and testified in his own defence as DW1. At the conclusion of the trial, the General Court Martial found him guilty as charged. Dissatisfied with the decision he appealed to the Lower Court, which on 18/3/2010 affirmed the decision.
Still dissatisfied he has further appealed to this court vide his notice of appeal filed on 22/4/2010 containing two grounds of appeal.
In compliance with the rules of this Court, the parties duly filed and exchanged their respective briefs of argument.
At the hearing of the appeal on 14/4/2016, ABDULLAHI HARUNA ESQ. leading Messrs A.V. Olubiyo and C.N. Uwalaka adopted and relied on the appellant’s brief filed on 10/6/2013 and his Reply brief filed on 24/9/2013. He urged the court to allow the appeal.
J.C. OKPOKO ESQ. Assistant Director, Federal Ministry of Justice leading Mallam J.A. Adamu Esq, (Assistant Director) and Habiba U. Chime (Mrs.) (Assistant Chief State Counsel), adopted and relied on the Respondents brief filed on 28/8/2013 and urged the court to dismiss the appeal.
The appellant distilled a single issue for determination as follows:
“Whether the Lower Court was right in holding that penetration of the virgina (sic) of the prosecutrix by me accused had been established beyond reasonable doubt to sustain the conviction of the appellant.
The respondent also formulated a single issue thus:
“Whether the learned justices of the Court of Appeal were right to have dismissed the appellants appeal and affirmed the decision of the General Court Martial?
I am of the view that the sole issue for determination in this appeal is whether the prosecution proved its case against the appellant beyond reasonable doubt. I shall proceed to determine the issue accordingly.
Arguing the appeal, learned counsel for the appellant referred to the appellant’s written statements, Exhibits P1 and P2 and his oral testimony in court where he denied having carnal knowledge of the prosecutrix (PW2) and submitted that where the accused person denies committing the offence of rape, the type of corroboration to be considered is medical evidence and not evidence showing injury to other parts of the victim or seminal stains on her clothes or those of the accused person. He referred to Ukershima V. State (2003) FWLR (Pt.137) 1117. He contended that the crux of this appeal is whether, from the evidence before the trial court, there was strong evidence of corroboration of penetration, an essential element in proving intercourse in a charge of rape or defilement under Section 78 of the Armed Forces Act. He observed that PW5, the medical doctor who carried out a medical examination on PW1 and tendered Exhibit P6 (the medical report), examined PW2 two days after the alleged sexual intercourse. He noted that PW2s statement, Exhibit 5, was made on 10/3/2005, the same day the medical examination took place and two days after the last sexual intercourse was alleged to have occurred (as per Exhibit P6).
He observed that notwithstanding the fact that in her statement made on 10/3/05, PW2 stated that she had “been seeing blood stains and feeling pain in her vagina”, PW5 who examined her the same day, stated that she found no bruise, laceration or bleeding on the vulva to suggest forceful intercourse. He submitted that the evidence of PW2 was flawed, doubtful and discredited and ought not to have been relied upon by the General Court Martial.
He contended that there are material conflicts regarding the date on which PW5, the medical doctor, examined PW2.
He referred to PW5’s evidence in chief at page 144 of the record where she stated that PW2 was brought to her for examination on 8/3/2005. He submitted that since the alleged sexual intercourse was said to have taken place two days before the medical examination, it means it must have taken place on 6/3/05, yet Exhibit P6 puts the date of the medical examination at 10/3/05. He argued that this suggests that the sexual Intercourse took place on 8/3/05. He also argued that there were material contradictions in the testimony of PW2 as to last date on which sexual intercourse occurred between her and the appellant. He contended that the said contradictions create a doubt in the prosecutions case as to whether or not sexual intercourse actually took place between the parties.
Learned counsel argued further that there is no nexus between the offence for which the appellant was charged, which was said to have occurred between 4th and 5th March and PW5’s medical report said to be predicated on an offence that occurred on 8/3/2005.
Learned counsel submitted further that sexual intercourse, in a case of rape or defilement, is established upon proof of penile penetration of the vagina, and that such penile penetration must be unequivocally proved to be by the accused person. He submitted that the medical report did not establish this fact. He contended that there was no medical proof that the appellant had sexual intercourse with PW2. He also referred to Exhibit P3, the statement of one Japhet Almuru who claimed that he had sexual intercourse with PW2 at her request and argued that an 11-year-old girl who demands sexual intercourse could not be said to be entirely honest or innocent and that her evidence could not be regarded as credible. He noted that PW2 had testified that she did not report the several instances of intercourse with the appellant because he had

…………………….B…………………….

threatened that she would die if she told anyone and queried why she did not report the sexual intercourse she had with Japhet, who did not make such a threat.
He submitted that the Lower Court erred in affirming the finding of the General Court Martial that a birthmark identified by PW2 on the appellant’s thigh was conclusive proof of the offence of defilement. Relying on the case of: Edet Okon Iko V. The State (2001) 7 SCNJ 391, he submitted that the identification of a scar on the appellant’s thigh by PW2 did not constitute corroborative evidence of sexual intercourse.
Learned counsel contended that reliance on evidence of a birthmark on the appellant’s thigh amounted to misplacement of the burden of proof. He argued that the corroborative evidence relied upon by the trial court and affirmed by the court below has a faulty and weak foundation. He contended that varying references to “2 birth marks” in Exhibit P6 and “some marks”, “the marks” and “the mark” in PW5’s evidence in chief were inconsistent with the evidence of PW2 who in her written statement and in her oral evidence in court mentioned only one birthmark. He argued that the prosecution failed to prove penetration of PW2 by the appellant beyond reasonable doubt, which is required to sustain a conviction for rape or defilement.
He urged the court to hold that the finding of the General Court Martial affirmed by the Lower Court is perverse and has occasioned a miscarriage of justice. On what constitutes a perverse decision, he relied on: Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360; Nwosu V. Board of Customs & Excise (1988) 5 NWLR (Pt.93) 225. He maintained that the General Court Martial closed its eyes to obvious material contradictions that had a direct bearing on the reliability and credibility of the medical report and also ignored the inconsistency in PW2’s evidence as to when the offence allegedly occurred. He urged the court to resolve the sole issue in favour of the appellant.
In response to the submissions of learned counsel for the appellant, learned counsel for the respondent in paragraph 3.2 at pages 4 – 5 of his brief set out the salient aspects of the written statement and oral evidence of PW2 as follows:
a. She lives with her parents in the same block with the appellant and she knows him.
b. The appellant, between January 2004 and March 2005, had sexual intercourse with her more than three times.
c. The appellant sent her to buy coke for him and when she came with the coke he closed the door and had sex with her.
d. That after the sexual intercourse she had with the appellant she saw blood in her vagina.
e. The appellant was the first person to have sexual intercourse with her.
f. That nobody was in the appellant’s house at the time he had sexual intercourse with her.
He submitted that PW2 maintained her testimony under cross-examination. He submitted that PW5 who carried out a medical examination on both PW2 and the appellant found that PW2 is not a virgin and that the appellant had marks on his thigh, identified by PW2 that could only be seen when he is undressed. He noted that the appellant on the other hand denied having sexual intercourse with PW2 although he admitted that he knew her and was a very close friend of her father’s but that it was his wife who used to send PW2 on errands. He noted further that the appellant admitted that he had marks on his thighs.
Relying on the case of Onafowokan V. The State (1987) 3 NWLR (Pt.61) 538 @ 551 – 552, he submitted that the Lower Court was right in affirming the conviction and sentence of the appellant based on the credible evidence given by PW2. He noted that the offence for which the appellant is charged is one that is usually committed in secret and that PW2 did testify that when the sexual intercourse occurred there was no one at home. He submitted further that the offence charged under Section 78 of the Armed Forces Act does not require corroboration of the evidence of the prosecutrix as a condition precedent to securing a conviction thereon. He submitted that the test is the credibility of the witness and not corroboration of her evidence. He submitted further that the appellant was charged for defiling PW2 and not for raping her, which is an offence provided for under Section 79 of the Act. He submitted that the argument of learned counsel for the appellant in paragraphs 2.2 – 2.16 of his brief to the effect that corroboration is required to secure a conviction under Section 78 of the Act, is misconceived. He submitted that where the words used in a statute are clear an unambiguous they must be given their natural and ordinary meaning. He referred to: A.G. Federation V. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt.681) 187 @ 264 G – H.
He submitted that the two Lower Courts found PW2’s evidence to be credible, clear and unequivocal and that the appellant has failed to show that the concurrent findings are perverse or have occasioned a miscarriage of justice. He submitted that in the circumstances this court should not interfere with the findings, He relied on: Ibeme V. The State (2013) 10 NWLR (Pt.1362) 333 @ 365 C – D. He contended that the General Court Martial, being the court of first instance was in a better position to evaluate PW2s credibility. He referred to: Ndulue V. Ojiako (2013) 8 NWLR (Pt.1356) 311 @ 339 C – F.
Learned counsel submitted that there were no contradictions in the evidence of PW2, PW5 and the medical report Exhibit 6, as the examination carried out by PW5 was not done to determine whether the appellant had sex with the appellant on the stated date but was to determine whether PW2 was a virgin and whether the appellant had any marks on his thigh, which PW2 said she saw when he took off his clothes to have sex with her. He submitted that the alleged contradictions are not material enough to warrant the judgment being set aside. He referred to the case of:
Nwokoro V. Onuma (1999) 12 NWLR (Pt.631) 342 @ 355 where it was held that witnesses my not necessarily testify to the same facts with equal and regimented accuracy, particularly where they testify from failed memory or from slightly different perspectives. He noted that PW2, at the time she testified was 11 years old and not much lettered in English Language. He submitted that Exhibit P6 shows that she was not a virgin and that the appellant had marks on his thigh that could only be seen if he were naked. He posited that this evidence confirms the evidence of PW2 that she saw the marks when the appellant took off his clothes to have sexual intercourse with her and also confirms that she was not a virgin.
He contended that the evidence, though circumstantial, was reinforced by PW2’s credibility and was sufficient to ground the conviction. He cited the following cases: Mbang V. State (2013) 7 NWLR (Pt.1352) 48 @ 77 B – C:
Omotayo V. The State (2013) 2 NWLR (Pt.1338) 235 @ 252 – 255, He noted that the appellant was charged for having defiled PW2, a girl of 11 years of age between January 2004 and March 2005 and not for the last sexual intercourse he had with

…………………….C…………………….

her on the 6th of March 2005. He submitted that the submissions of learned counsel for the appellant on alleged contradictions in the evidence of PW2 regarding the last date on which the appellant had sexual intercourse with her are, in the circumstances, not tenable. He submitted that even assuming, without conceding, that there were such contradictions, it would not justify setting aside the decision of the court below on grounds of being perverse. On the meaning of “perverse” he referred to the case of Atolagbe v. Shorun (1985) 4 SC (Pt. I) 250 @ 289 and urged the court to hold that the appellant has not been able to show that the judgment is perverse. He urged the court to dismiss the appeal.
In reply on points of law to the submission that an offence under Section 78 of the Armed Forces Act does not require corroboration, learned counsel for the appellant submitted that sexual offences or sex related offences require corroboration even where the statute creating the offence does not specifically provide for it. He referred to: Iko V. State (2001) 7 SCNJ 391; (2001) 14 NWLR (PT. 732) 195; Ibeakanma V. Queen (1963) 2 SCNLR 191 @ 194 – 195. He submitted that the offence of defilement or rape requires corroboration. He relied on: Okoyomon v. The State (1973) 1 SC 21. With regard to the submission that the appellant was not charged with rape, learned counsel referred to the judgment of the Lower Court where it held that Section 78 of the Armed Forces Act is in part materia with Section 282 (1) of the Penal Code and on that basis predicated its judgment on the ingredients of the offence of rape under Section 282 (2) of the Penal Code. He submitted that by the finding that Section 78 of the Act is in pari materia with the offence of rape under Section 282 (1) of the Penal Code, the offence of defilement under Section 78 requires corroboration to ground a conviction.
Apart from the above submissions, other arguments in the appellant’s reply brief are a re-argument of the appeal, which is not the purpose of a reply brief.
Section 78 of the Armed Forces Act Cap. A20 LFN 2004, under which the appellant was charged before the General Court Martial, provides as follows:
“A person subject to service law under this Act, who has carnal knowledge of a girl, being under the age of sixteen years, is guilty of an offence under this section and liable on conviction by a court-martial to imprisonment for a term not exceeding fourteen years or any less punishment provided by this Act.
In order to secure a conviction under this provision the prosecution must establish the following beyond reasonable doubt:
1. That the accused is a person subject to service law under the Act.
2. That the victim is a girl under the age of 16 and
3. That the accused had carnal knowledge of her.
The First two ingredients are not in dispute. With regard to the third ingredient, the Armed Forces Act does not define “carnal knowledge”. In Black’s Law Dictionary 8th edition at page 226, “carnal knowledge” is defined as follows:
“Carnal knowledge: Sexual intercourse esp. with an underage female” ”intercourse” is defined at page 827 as:
“2. Physical sexual contact. esp. involving the penetration of the vagina by the penis.€
In Magaji V. Nigerian Army (2008) 8 NWLR (Pt.1089) 338 @ 373 E, the appellant, a commissioned officer of the Nigerian Army was charged before the General Court Martial on a charge of sodomy contrary to Section 81 (1) (a) of the Armed Forces Decree No. 105 of 1993. It was alleged that the appellant had carnal knowledge of four boys.
On the meaning of “carnal knowledge”, this court per Tobi, JSC said:
“The Armed Forces Act does not define “carnal knowledge”. Section 6 of the Criminal Code Act defines carnal knowledge or the term carnal connection. The term implies that the offence, so far as regards that element of it, is complete upon penetration.
The court reiterated the settled position of the law that a court or tribunal can convict on strong circumstantial evidence, which leads to the commission of the offence. Several authorities were cited, including: Chewmoh V. The State (1986) 2 NWLR (PT. 22) 331; Adio v. The State (1986) 2 NWLR (Pt. 24) 581: Ikomi V. The State (1986) 3 NWLR (Pt. 28) 340; Iyaro V. The State (1988) 1 NWLR (Pt.69) 256. His Lordship, Niki Tobi, JSC also noted that the offence of sodomy, like the offence of unlawful carnal knowledge of a girl under sixteen years of age, is not an offence where corroboration is statutorily required. In that case he held that even if corroboration were required, the appellant’s pre-trial statement would have gone a long way in proving the charge.
In Ezigbo V. The State (2012) 16 NWLR (Pt. 1326) 318, a mother (PW1) saw her two young daughters, aged 8 and 6 years respectively, in the company of the appellant with ice cream in their hands. When she called to them, the appellant changed direction and continued to walk away. The girls did not heed their mother’s call. The mother ran after them, at which point the appellant abandoned the girls and ran away.
Upon inquiry it was discovered that the appellant used to lure the girls to his shop where he would have sexual intercourse with them and occasionally give them money. PW1 reported the matter to her husband who reported the matter to the Police. The appellant was charged and convicted for the offence of rape. One of the issues in contention in that case was whether there was sufficient corroboration of the unsworn testimony of PW2 having regard to the evidence of the medical doctor, PW5, who in her medical report, Exhibit P2, found that the hymen of the two girls had been ruptured but did not testify that it was penetration of the appellants penis into their vaginas that caused the hymens to disappear. This court, per Onnoghen, JSC at page 329 C – D of the report held as follows:
”Corroboration in respect of the offence of rape is evidence which tends to show that the story of the prosecutrix that the accused committed the crime is true – see Sambo V. State (1993) 6 NWLR (pt.300) 399; Upahar V. State (2003) 6 NWLR (pt.816) 230.
Corroboration need not consist of direct evidence that the accused committed the offence charged, nor need it amount to confirmation of the whole account given by the prosecutrix. It must, however, corroborate the said evidence in some respects material to the charge in question. It is also settled that corroborative evidence must itself be a completely credible evidence.”
In that case, the evidence accepted by the trial court and affirmed by the court of appeal and this court, was the testimony of PW2 that the accused had sexual intercourse with her by putting his penis in her private part and that blood and white liquid came out of her body, which evidence was corroborated by the testimony of the medical doctor, PW4 who

…………………….D…………………….

stated in his medical report that he found that the hymens of the two girls were not intact and that in his opinion the disappearance of the hymen might have been caused by penetration into the vagina and that the penetration must have occurred several times. This evidence corroborated the testimony of PW2, though unsworn, that the accused had sexual intercourse with her on more than one occasion.
In other words, as rightly pointed out by learned counsel for the respondent, an offence such as the one under consideration is usually carried out in secret with the only witnesses being the victim and the perpetrator. Therefore, in determining whether the prosecution has proved its case beyond reasonable doubt, the court will take all the surrounding circumstances into account. See: Magaji v. Nigerian Army (supra) at 375 B-C.
I deem it appropriate at this stage to give a brief summary of the facts as gleaned from the record that led to the charge in order to put the submissions of learned counsel in perspective. The appellant, a corporal in the Nigerian Army who works as a computer operator and teacher at NAOWA Model Nursery and Primary School and the family of the prosecutrix (PW2) all reside in the same block at Mogadishu Cantonment in Abuja. Helen Waziri, the mother of PW2, who testified as PW4, testified that on 9/3/2005 she saw PW2 outside her school around 12 pm when she ought to have been in her classroom. She sent her back inside. Later the same day, her friend informed her that she had seen her daughter around the church premises during school hours.
PW2 was questioned and eventually admitted that one Japhet Almuru had called her to the church and had sexual intercourse with her. At that stage PW4 raised an alarm and attracted other neighbours. PW2 repeated her story and stated further that Japhet Almuru was not the only one who had had sexual intercourse with her. She then informed those gathered that the appellant had also had sexual intercourse with her.
PW4, a housewife, who sells soft drinks, recalled that she was pregnant and on bed rest at the time and that the appellant would send PW2 to buy him soft drinks from her. She also testified that the appellant was a good family friend who had been of great assistance to her and her family while her husband was away on duty in Sierra Leone. She also stated that the appellant’s wife was her good friend. It was this interrogation of PW2 and the revelations that followed that led to the matter being reported to the Military Police and the appellants subsequent prosecution.
The prosecutrix, Ruth Waziri (PW2) testified inter alia as follows at pages 73 – 74 of the record:
There is one day Oga Isah called me that I should bring coke for h1m then I now bring coke for him, he now say I should sit down when I sit down he now touched my breast and he said if I tell anybody that I am going to die, so he gave me (N20.00) Twenty Naira that I should 90 the next day he now called me that I should come and I now come and he now touched my breast then the next day again he called me that I should sit down in three seater he now went and locked the door. When he locked the door he now said I should lay down so when I lay down he now pull off my skirt and sleep with me….He lay on top of me… He put his penis in me … in my yansh … the one I use to piss.
… Then the following day he now said I should come and when I come he still do the same thing. Before he go Sudan that is what he used to do then the last day on Tuesday on 8.€
She continued at page 76 of the record:
“Before he went to the office by (sic) on Tuesday 8th he call me and I refused to go, my mummy now said I should go that someone wants to send me and that I don’t want to go. I now said okay and I now 90 there and he said I should go and buy him akamu. When I come back he now touched my breast and gave me N20.00 Twenty Naira that if I tell anybody I am going to die.”
She stated that on the 8th of March no sexual intercourse took place. In the course of her testimony she described the appellant’s penis and stated that she also saw a mark on his thigh. She stated further that when Japhet tried to have sexual intercourse with her he was unable to consummate the act. That there was no penetration. She also stated that the appellant was the first person to have sexual intercourse with her and that after he had intercourse with her she saw blood. She testified that he had sexual intercourse with her more than three times.
PW5 the medical doctor who examined PW2 found that she is not a virgin although no bruising or bleeding was found in her vagina. She also examined the appellant and found that he had a birthmark on his thigh as stated by PW2. The appellant in his defence denied the charge. His two witnesses, DW2 (a neighbour) and DW3 (the appellant’s wife) did not add anything of value to his defence as they had no knowledge of the alleged offence. DW2 was one of those invited by the mother of PW2 to hear what she had said regarding the appellant. DW3 was informed of what transpired by her friend, the mother of PW2.
The court below, in its judgment, held that the offence of defilement under Section 78 of the Armed Forces Act is in pari materia with Section 282 (1) of the Penal Code, which provides thus:
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) with her consent when her consent has been obtained by putting her in fear of death or of hurt;
(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.€
In Ogunbayo V. The State (2007) 8 NWLR (Pt.10351 157 @ 176 F-G. 177- 178 H-A and 178-179 H – C, it was observed that there is no statutory requirement that the prosecution must provide evidence of corroboration before an accused person can be convicted of the offence of rape. However, the court noted that over time it has become the practice for court’s to require some evidence of corroboration. Thus while it is acknowledged that it is desirable that the evidence of the prosecutrix should be strengthened by other evidence implicating the accused person in the commission of the offence, it is not the law that an accused person cannot be convicted on the uncorroborated evidence of the prosecutrix. The cases

…………………….E…………………….

of: Iko V. The State (2001) 14 NWLR (pt. 732) 221; Ibeakanma V. Queen (1963) 2 SCNLR 191; Reekie V. Queen (1954) 14 WACA 501; Sunmonu V. I.G.P. (1957) WRNLR 23 were referred to.
It is worthy of note that the offence of defilement under section 78 of the Armed Forces Act is complete once it is proved that the accused person had carnal knowledge of a girl under the age of 16 years. In other words, while in the offence of rape, lack of consent is material, in a case of defilement, the consent of the prosecutrix is immaterial. I must state here that PW2, although 11 years old, was rigorously examined as to her capacity to understand the importance of speaking the truth and the General Court Martial was satisfied of her competence to testify under oath. The said court, which had the opportunity of seeing and hearing PW2 and observing her demeanour, found her evidence credible and unshaken under cross-examination.
Learned counsel for the appellant has argued strenuously that the absence of bruising or bleeding in PW2s vagina, as found by PW5 when she examined her on 10/3/2005 despite the fact that PW2 in her statement of the same date stated that she had been seeing blood stain and feeling pain in her vagina, showed that the medical evidence was flawed and should not have been relied upon in convicting the appellant, I think that the argument of learned counsel for the appellant, with respect, is misconceived. This is because the appellant is alleged to have had sexual intercourse with her on several occasions over a period of time – between January 2004 and March 2005 and not between 4th and 5th March 2005, as contended by learned counsel for the appellant. The report to the Military Police was the outcome of the interrogation of PW2 after a report by her mothers friend that she had been seen in the church premises during school hours and the fact that she confessed to having had sexual intercourse with one Japhet as well as the appellant, when questioned. The whole scenario was precipitated by the fact that PW4 found her daughter outside school when she ought to have been in the classroom, which led to the further revelation by her friend.
Thus, as rightly observed by learned counsel for the respondent, since the offence was allegedly committed on several occasions, the purpose of the medical examination carried out by PW5 was to ascertain whether or not PW2 was a virgin and whether the appellant had a birthmark on his thigh in an area that could only be seen if he were naked, which would corroborate the assertions of PW2. Both facts were confirmed by PW5 in Exhibit P6.
On this issue, the Lower Court held at page 375 of the record:
“A trial court is bound to consider, however stupid, the defence of an accused person more so in a case as serious as the one before the court. The court is enjoined to consider all available legal defences whether raised directly or remotely by the accused person, in the interest of justice before the trial court finds for or against the accused. In this regard is the fact that PW2 not being a virgin at the time of the medical examination and in the view of the defence should knock out the offence of rape is a clear shut (sic: shot) in the dark without hitting a target. With the other points, especially of the several acts of violation of the PW2 ranging between 2004 and 2005, talking of virginity would not avail the accused as it became irrelevant in the circumstance… In the case in hand, the appellant as accused in the Court Martial did not help himself when he set out for an outright denial, then made serious admission under cross-examination of the birth marks referred to by the prosecutrix, which was confirmed by the PW5 and her Medical Report.
This is a case in which there was strong circumstantial evidence that pointed to the commission of the offence by the appellant. PW2 was quite unequivocal in her evidence in chief and under cross-examination that she had had sexual intercourse with the appellant on several occasions. For a young girl of 11 years, the cross-examination was rigorous and lengthy but she stuck to her story. She was able to describe his private part including her observation of a birthmark on his thigh. I agree with the finding of the court below that the evidence of PW5 and her medical report, Exhibit P6 constituted sufficient corroboration of the evidence of PW2.
On the contention of learned counsel for the appellant that there were serious contradictions in the evidence led by the prosecution, the law is settled that it is not every contradiction in the prosecutions case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. See: Dibie V. The State (2004) 14 NWLR (893) 257 at 280 A – D: Ikemson Vs The State (1989) 2 NSCC (Vol. 20) 471; Onubogu Vs The State (1974) 1 All NLR (part II) 5: Okonji Vs The State (1987) 1 NWLR (52) 659.
On the issue of the location of the birthmark on the appellant’s thigh, the court below held at pages 376 – 377 of the record:
The fact that the prosecutrix said the birthmarks were on the left side thigh of the accused/appellant and the PW5 sad it was on the fight side was Insufficient as an inaccuracy as to discredit either the witnesses or the piece of evidence as what was material was that such marks existed and in the very secret and private part of the appellant which could only be seen when he is undressed. Therefore that he had undressed himself before the PW2 is no longer in doubt and the PW5, medical doctor only saw it when appellant was undressed before her during the medical examination.”
I agree entirely with the above finding, which has not been shown to be perverse. I also agree with learned counsel for the respondent that the slight discrepancy regarding the date on which PW5 examined PW2, whether it was on the 8th or 10th of March, is immaterial to the finding of PW5, which confirmed that PW2 had had sexual intercourse on several occasions prior to the examination and that the appellant had a mark on his thigh that could only be seen by someone who had seen him naked. PW5 stated that PW2 gave her a description of the appellant’s penis, including its colouration.
In her evidence-in-chief at page 156 of the record, she described the location of the mark thus:
”It is found on the inner part of the thigh, about 5cm from where the hair is growing from the pubic region.”
I am of the view that the issue of the number of scars seen on the appellant’s thigh, whether one, two or several, is immaterial in so far as PW2 gave credible evidence confirmed by PW5 of at least one scar in a part of the appellants body that could only be seen when naked.
I agree with the court below that the evidence of PW5 and the medical report, Exhibit P6 constitute independent, credible evidence that corroborates the evidence of PW2.
Beyond this, it is also clear from the evidence before the General Court Martial that the appellant shamelessly abused his

…………………….F…………………….

position as a trusted friend of the family to take undue advantage of the prosecutrix.
Before concluding this judgment, I deem it necessary to comment briefly on the submission of learned counsel for the appellant to the effect that from the statement made by Japhet, which was tendered as Exhibit P3, the prosecutrix went to the church premises to meet him voluntarily, and therefore she could not be considered to be an honest or innocent young girl whose evidence could be relied upon.
Firstly, the said Japhet did not testify before the General Court Martial and was therefore not subjected to cross-examination as per the contents of Exhibit P3, Furthermore, so long as a person has carnal knowledge of a girl under the age of 16, whether it is with her consent or not, an offence is committed.
It is a demonstration of a lack of understanding of the nature of the offence for learned counsel to ascribe any culpability to the prosecutrix.
In light of all that I have said above, I am of the view that the Lower Court was right when it affirmed the decision of the General Court Martial that the prosecution had proved its case against the appellant beyond reasonable doubt. No special grounds have been shown by the appellant to warrant interference by this court with the concurrent findings of fact by the two Lower Courts. I therefore hold that the appeal lacks merit. It is accordingly dismissed. The judgment of the Court of Appeal, Abuja Division delivered on 18/3/2010 affirming the conviction and sentence of the appellant to a term of four years imprisonment by the General Court Martial is hereby affirmed.
Appeal dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: 
I have had the benefit of reading in draft the leading judgment of my learned brother, Kekere-Ekun, JSC. I agree that there is no merit in this appeal. I intend to comment on the position of the law on the sole issue formulated by learned counsel for the appellant. The issue reads:
Whether the Lower Court was right in holding that penetration of the virgina of the prosecutrix by the accused had been established beyond reasonable doubt to sustain the conviction of the appellant.
The appellant was charged under section 78 of the Armed Force Act Cap A 20 Laws of the Federation of Nigeria, 2004. He is accused of having carnal knowledge of Miss Ruth Waziri, a girl under the age of 16.
Section 78 supra states that:
78. Defilement
A person subject to service law under this Act who has carnal knowledge of a girl, being under the age of sixteen years is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding fourteen years or any less punishment provided by this Act.
For the court to be satisfied that the prosecution has proved its case beyond reasonable doubt, the prosecution must establish:
1. that the accused person is a person subject to service Law
2. that the accused person had carnal knowledge of the prosecutrix
3. that the prosecutrix was not 16 years old when the offence was committed.
A person subject to service law is a person in the Armed Forces of Nigeria, i.e. the Army, Navy, Airforce. The appellant is a Corporal in the Nigeria Army with Number 91NA/32/4119. He is subject to service law.
Though carnal knowledge is not defined in section 78 of the Armed Forces Act, once a mans penis penetrates the virgina of a female, no matter how slight the penetration the offence is complete. He is said to have had carnal knowledge of the prosecutrix. See Section 6 of the Criminal code. The appellant had carnal knowledge of the prosecutrix on several occasions.
It is not in doubt and it was not an issue that at the time the appellant had repeated sex with the prosecutrix she was eleven years old.
It is long settled that in sexual offences that corroboration of the prosecutrix evidence is desirable. That is to say the evidence of the prosecutrix should be strengthened by other evidence implicating the accused person in some material particular. See Sunmonu v. IGP (1957) WRNLR p. 23
Whether evidence is regarded as corroboration is a matter of law and it is the duty of the Judge to decide.
The prosecutrix testified that the appellant had sex with her several times and gave a description of his penis and the fact that he had a mark on his thigh, facts found to be true by PW5, the medical doctor, after examining both of them. In the circumstance of this case the testimony of the medical evidence is good corroboration of the evidence of the prosecutrix.
Finally the law does not recognize consent to sex by a girl under the age of 16 years. It is no defence to say a girl under 16 years consented to sex. I am satisfied that the prosecution proved the charge of defilement under section 78 of the Armed forces Act beyond reasonable doubt against the appellant.
For this, and the detailed reasoning in the leading judgment, concurrent findings of both courts below are correct. The appeal is dismissed.
NWALI SYLVESTER NGWUTA, J.S.C.:
I read in draft the lead judgment just delivered by my learned brother, Kekere-Ekun, JSC, and I entirely agree with the reasoning leading to the dismissal of the appeal as devoid of merit.
One of the issues canvassed for the appellant is the absence of bruises on the prosecutrix private part. This line of argument would be to the point on the issue of consent and showing that the prosecutrix offer no resistance. See Queen v. Kuti (1960) WNLR; DPP v. Morgan (1975) All ER 147; Ogunbayo v. State (2007) All FWLR (pt.365) 408 a 425-426 SC.
But consent is not an issue in this appeal. The prosecutrix was eleven years at the time the offence was committed. She

…………………….G…………………….

was doli incapox. She was incapable of consenting to the act of the appellant on her.
The prosecutrix (PW2) gave a graphic account of her observation of the genital area of the appellant. She described the appellants male organ and its colouration as well as the birth mark on the appellants thigh.
This is not a direct evidence in proof of the charge as laid.
However, it is evidence of some collateral fact from which the existence or non-existence of some fact in question may be inferred. It is circumstantial evidence.
In dealing with circumstantial evidence in Kam Das v. State of Maharashtora AIR 1977 SC 1164 the Court held that a settled rule of circumstantial evidence is that where the circumstances are susceptible of two equally possible inferences, the Court should accept that inference which goes in favour of the accused rather than inference which favours the prosecution. On the facts of this case, there is only one inference to be drawn from the established fact and that is the guilt of the appellant.
Also it is unthinkable that a girl of the tender age of eleven years will cook up the story the prosecutrix told the Court. It has ring of truth and the trial Court was right to accept her story as the truth and the Court of Appeal rightly endorsed the decision of the trial Court.
In absence of any perversity in the concurrent judgments of the trial Court and the Court of Appeal, this Court cannot disturb the Judgment appealed against.
For the above and the comprehensive reasoning in the lead judgment I also dismiss the appeal and affirm the judgment of the Lower Court.
Appeal dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.:
This is an appeal against the concurrent findings of fact by the two courts below. Appellant has not shown the findings to be perverse. The appeal accordingly fails. I imbibe the detailed reasoning in the lead judgment of my learned brother Kekere-Ekun JSC, which I read in draft before now, to dismiss the appeal. I affirm the judgment of the Lower Court.
AMIRU SANUSI, J.S.C.:
I had the opportunity of reading the draft judgment of my learned brother Kudirat Motonmori Olatokunbo Kekere-Ekin JSC which has just been delivered.
Considering the evidence adduced by the prosecution and those lead by the defence and the surrounding circumstance of the case, I am convinced that the prosecution (now respondent) had duly proved the offence the appellant stood trial on, beyond reasonable doubt.
I am in entire agreement with the reasoning and conclusion arrived at by my noble lord Hon. Justice Kudirat Motornmori Olatokunbo Kekere-Ekun JSC. I adopt them as mine and have nothing useful to add. This appeal fails and is dismissed by me. I affirm the decision of the court below which had earlier affirmed the decision of the General Court Martial.

Appearances

Abdullai Haruna, Esq. with him, A.V. Olubiyo, Esq. and C.N. Uwalaka, Esq.- For Appellant

AND

J.C.I. Okpoko, Esq. (Asst. Dir. Federal Ministry of Justice) with him, Mallam J.A. Adamu, Esq. (A.D.) and Habiba U. Chime (Mrs.) Asst. Chief State Counsel –For RespondentARMED FORCES/MILITARY OFFENCESDEFILEMENT

Leave a Reply

Your email address will not be published. Required fields are marked *