MOHAMMED v. KANO STATE (2018)

In The Supreme Court of Nigeria

On Friday, the 9th day of March, 2018

SC.801/2015

Before Their Lordships

OLABODE RHODES-VIVOUR  Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN  Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO  Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE  Justice of The Supreme Court of Nigeria
EJEMBI EKO  Justice of The Supreme Court of Nigeria


Between

INSPECTOR DANTALLE MOHAMMED –Appellant

AND

KANO STATE- Respondent

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CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The appellant herein, and five other persons, three of whom were reportedly at large, were charged with the offences of Conspiracy, Abduction and Rape, punishable under Sections 97 (1); 273 and 283 of the Penal Code, respectively.Sequel to the not-guilty plea of the appellant, the matter went to trial. The respondent’s case was anchored on the testimonies of five witnesses, including the prosecutrix, Hindatu Sani, who testified as the PW5. The appellant’s attempt to scuttle his trial, through his no case Submission, having failed, he put up his defence. He was DW4.
Dissatisfied with the judgement of the lower Court, which affirmed the trial Court’s conviction of, and sentence on him, he has approached this Court entreating it to determine the narrow question “whether the testimony of PW5 is sufficiently corroborated by the testimony of other witnesses?” The respondent adopted the said lone issue. Hence, the lone issue for the determination of this appeal is the question:
Whether the testimony of PW5 is sufficiently corroborated by the testimony of other witnesses?
ARGUMENTS ON THE ISSUE
APPELLANT’S SUBMISSIONS

At the hearing of this appeal on December 14, 2017, Henry Akunebu, learned counsel for the appellant, adopted and relied on the appellants brief of argument filed on November 6, 2015. In the said brief, an outline of the case was presented, starting with an overview of the testimony of PW5.
PW5, it was pointed out, testified that she was coming on a motorcycle from Unguwa Uku at 9pm. At Kofar Nassarawa roundabout, they saw the first and second accused persons beside their police vehicle. The second accused person was the appellant. At the instance of the motorcyclist, the PW5 alighted from the motorcycle and went off. The first accused person took the motorcycle and asked the PW5 to join the police vehicle to take her home.
Despite all protests, the first accused person took the PW5 in their vehicle to the Kwali Police Station housing Kwali Police Barracks. At the room, the first accused person asked her to sit down. As she sat down, he (the first accused person) locked her in the room. He later entreated her to eat the indomie which he bought. Her refusal to eat the said food prompted the first accused person’s threat to her.
Fully armed with a gun, he [the first accused person] slapped her, removed her veil, tearing her blouse in the process, and ravished her while she struggled with him. The ravishment resulted in her bleeding and stains on her body. The following morning, the first accused person called the third accused person who joined them in the room.
Both accused persons mocked her, locked her up in the room and, equally, locked up the main entrance and left. In the evening, the first accused person returned with one Aisha who gave her cloth to the PW5 whose cloth was stained. She (PW5) bathed with water which Aisha supplied to her. After her bath at Aishas room, the first accused person brought her back to their initial room, locked the room up and ravished her [PW5] again while she bled.
Both accused persons [first and second] took her away in a vehicle to Glo Service Station. They left her with one Shehu who, equally, ravished her. In the morning, the first accused person came and took her away to the initial room where he, once more, ravished her while she bled and stained the cloth which Aisha gave her.
After multiple forcible sexual engagements with the accused persons and one Pele at different places, they took her in a Police vehicle to a political party office behind Jifatu stores. The accused persons later took the PW5 to Kwali Police Station. Later, fire service men took her to the hospital. The parents, subsequently, reported the matter to the Kwali Police Station.
Counsel, citing Iko v. State [2005] Vol 1 NCC 499, 501, submitted that the evidence of PW5 was suspect, incredible and improbable and so cannot be corroborated, Iko v. State (supra). He maintained that the said testimony was replete with improbabilities, Amodu v. State (2012) 2 NWLR (Pt 1177) 47, 57.

He pointed out that, at page 22 of the record, PW4 stated that the PW5 made a voluntary statement which was withheld never tendered, Goubada v. State [2005] Vol 1 NCC 255, 258. He therefore submitted that the testimony of PW5 was incredible, weak and unreliable and could not be corroborated, Iko v. State (supra). He maintained that neither the PW1’s testimony nor the PW2’s additional evidence, Exhibit D2 could have corroborated the evidence of the PW5.

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Placing reliance on the Court of Appeal decision in Tsoho v. State (1986) 4 NWLR (sic) 710, he submitted that the totality of the evidence of the accused person must be considered for what it is worth; however, in his submission, this was not done in the instant case. He canvassed the view that where there is an iota of doubt as to whether an offence was committed, the doubt should be resolved in favour of the accused person, Isah v. State [2008] 3 NCC 636; Onubogu and Anor v. State [(1974) 1 All NLR 5.

In his submission, the facts contained in the appellant’s additional statement do not lead conclusively to his guilt and do not eliminate other possibilities, Shehu v. State (2010) 3 MJSC (pt. 11) 74, 78 and therefore could not amount to circumstantial evidence, Shehu v. State (supra).

Learned counsel maintained that where rape is denied, it is only medical evidence that could corroborate, Posu v. State [2011] 3 NWLR (pt. 1234) 393, 398. He maintained that the medical evidence, Exhibit A, was wrongly admitted without the maker being called in evidence and without proper foundation laid in the absence of the maker, Section 50, Evidence Act, 2011.
Accordingly, he insisted that, since the maker of Exhibit A did not appear in Court, his absence ought to have been satisfactorily explained by a letter from his head of department, or telegram or a Gazette. In the absence of these, Exhibit A was in his submission, admitted without foundation and should be expunged, Dada v. Bankole [2008] 3 MJSC 1, 6. Above all, he pointed out that since, Exhibit A was an expert report, the expert ought to have appeared in Court for cross-examination, Idundun V. Okumagba SC/309/74 (SC).

He canvassed the view that a medical report simpliciter cannot be cross examined, Idundun v. Okumagba(supra). He urged the Court to expunge Exhibit A. He further contended that, having been made about eight weeks after the incident, the said Exhibit A was exposed to other possibilities, for instance, the chance of PW5 having sexual intercourse with other men other than the accused person.
He pointed out that the Prosecution’s case was devoid of any corroborative evidence. He explained that Aisha was not called in evidence; the cloth she gave to the PW5 neither had any blood stain nor sperm stain and the cloth the PW5 wore at first instance was never tendered, Goubadia v. State (supra). He invited the Court to hold that the case of the Prosecution was not corroborated, Oden v. FRN (2005) 1 NCC 303, 308; Okeke v. State [1995] 4 NWLR (pt. 392) 676; Akinyemi v. State (1999) 6 NWLR (pt. 607) 449. He urged the Court to allow the appeal.
RESPONDENT’S ARGUMENTS
On his part, learned counsel for the respondent, Mukhtar Sani Daneji, adopted his brief filed on January 29, 2016, although, deemed properly filed on January 11, 2017. He submitted that the evidence of PW5 was sufficiently corroborated. He contended that, in respect of rape cases, corroboration is evidence which tends to show that the victim’s story is true that the accused person committed the crime.
He further pointed out that corroboration need not consist of direct evidence that the accused person committed the crime. He pointed out that the victim, PW5 testified at a time when she was sixteen years old and on oath; hence, her evidence needed no corroboration, Dagayya v. State [2006] 7 NWLR (pt. 980) 637. Worse still, corroboration is neither even needed nor is a requirement of the law in rape cases but only a matter of practice, Habibu Musa v. State (2013) LPELR – 19932 (SC).

On the contention that the Prosecution’s testimonies were riddled with contradictions, he referred to Akpan v. State (1991) 3 NWLR (pt. 5) (sic); Ogoala v. State [1991] 3 NWLR (pt. 5) 175; citing page 380 of the record for the views of the lower Court on this question of contradictions. He referred to pages 57 -58 of the record and contended that the Prosecution had no duty to call all the witnesses.
Citing page 411 of the record, he pointed out that PW5 said she was threatened by the first accused person, drawing attention to the finding at page 251 – 252 of the record that the testimony of the PW5 was not discredited under cross examination and to the finding of the lower Court at page 375 of the record that the evidence adduced which establishes the ingredients of rape was relied upon by the learned trial Judge. He distinguished Amodu v. State (supra) an

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armed robbery case and Goubadia v. State (supra).

Relying on Criminal procedure (Application for leave to prefer a charge in the High Court) Rules, 1979, the Prosecution was under no obligation to give the appellant the victim’s statement.
Above all, the said victim testified and was cross examined. He pointed out that the lower Courts merely treated the additional statement of the appellant as corroborative evidence and not confessional statement, pages 258 – 259 of the record. Referring to pages 375 – 376 of the record, he pointed out neither of the lower Courts neglected the oral testimony of the appellant.
He maintained that the medical report, Exhibit A, was admissible evidence. He, the appellant, did not request for the appearance of the medical doctor who issued it, Nwachukwu v. State (2007) 17 NWLR (pt. 1062). He disclaimed the submission on the existence of contradictions in the testimonies of the Prosecution, page 381 of the record; Dibie v. State (2007) LPELR (sic) (SC). He finally submitted that concurrent findings are not lightly toyed with if they are not perverse; the appellant failed to adduce evidence of the perversity of the testimonies.
RESOLUTION OF THE ISSUE
At page 375 of the record, the lower Court responded thus to the submission that there was no Corroboration of the evidence of PW5 and thus the evidence cannot ground conviction:
The learned trial Judge considered the necessity for corroboration, and on pages 258 – 260, reviewed and evaluated the evidence of the witnesses and found that the evidence of the PW5 has been sufficiently corroborated by the evidence of the PW1, the PW2 and the medical report tendered as Exhibit A and pieces of admission by the appellant himself. It has been held that the corroborative evidence need not consist of direct evidence that the accused person committed the offence nor does it amount to a confirmation of the whole evidence of the witness, provided that it corroborates the evidence in some respect material to the charge in issue, Edet Okon Iko v. State (2001) 7 SCNJ 391. I am in agreement with the learned trial Judge that the evidence of PW5 was sufficiently corroborated.
Dealing with the question of corroboration, the learned trial Judge had proceeded thus:
The evidence of PW1 corroborated the evidence of PW5, the victim when she told the Court that the first and the second accused persons took her to an office near Jifatu stores where the second accused person forcefully had sexual intercourse with her. When he finished, they left her with Haruna (PW1) to buy her drugs which they later brought and took her back to Kwali Police Barrack where she was left in a room under lock by the first accused person. The second accused person who testified as Dw4 also admitted he collected the key from Haruna (PW1). He admitted her food he left with the Tea seller. He denied having sexual intercourse with her. In his statement, Exhibit D2, the second accused said ‘that it was true I took Hindatu Sani, the complainant in this case, to political party office behind Jifatu store, Zaria Road, Kano, I took her in our patrol vehicle and on arrival I told the man in charge of the place, one Haruna, to open the office for us. Then I enter (sic) into the house together with Hindatu and sat on the chair. The first accused (person) also in his confessional statement, Exhibit C2, stated ‘Our Inspector, one Talle Mohammad (second accused) took her to Jifatu side to a quarters located within the area.
All these facts have shown a corroboration of the victims (PW5) (sic) evidence by evidence of PW1, the first accused and the second accused
The evidence of PW2 also corroborating the evidence of PW5 when she said the first accused person kept her in Kwalli Police Barracks for about two weeks having sexual intercourse with her uncountable times without her consent
Counsel for the first accused person also submitted that in an allegation of rape there must be corroboration, that is lacking in this case. Even if as the counsel wants the Court to believe that there is no corroboration, which I hold there is, however, in Ogunbayo v. State (supra) it was held that it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. There is no statute foisting on the Prosecution a duty to provide evidence of corroboration before an accused person can be convicted for the offence of rape.
[pages 258 – 261; italics supplied for emphasis] Learned counsel for the appellant stridently sought to impugn the above finding of the lower Court, which affirmed the finding and conclusion of the trial Court. The question is whether there is any merit in his submissions. As shown

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earlier in this judgement, the sole issue is woven around this issue of corroboration.
The simple answer is that there is no merit therein.
My noble Lords, in Isa v. The State (2016) LPELR 40011 (SC), I dealt with this issue of corroboration in rape cases. Permit me therefore to refer to and adopt my views thereon, as part of my leading judgement in this case. In the said case, I observed that:
Now, prior to the amendment of Nigeria’s Evidence Act in 2011, scholars and other text writers had greeted, with forceful disapprobation, the practice which required corroboration of the evidence of a rape victim, see, for example, Justice Ngozi Oji, “Proof of Sexual Offences in Nigeria,” in UNIZIK Law Journal, Vol 7, No 1, 2010, 302 326; Y. Osinbajo, Cases and Materials on Nigerian Law of Evidence (Lagos Macmillan Nigeria Publishers Ltd, 1992) 326; T. A. Aguda, Criminal Law and Procedure of the Six Southern States of Nigeria, 756-757; O. S. Oyelede, “Corroboration”, in Akintola and Adedeji (eds), Nigerian Law of Evidence: A Book of Readings (Ibadan: University of Ibadan Press, 2006) 116 etc.
Their well-taken reservations notwithstanding Courts still clung to the practice of requiring corroboration of the evidence of such a prosecutrix, Okpanefe v. State [1969] ANLR 411; Igbine v. State (1997) 9 NWLR (pt. 519) 101; Iko v. State (2001) 14 NWLR (pt. 732) 221; Afolalu v. State [2010] 16 NWLR (pt. 1220) 584; Ndidi v. State (2005) 17 NWLR (pt. 953) 17.In passing, we acknowledge the beneficial provision of Section 204 of the Evidence Act, 2011 which has effectively bowdlerised sexual offences from the corroboration requirement.
Interestingly, in Habibu Musa v. State (2013) LPELR -19932 (SC), this Court noted, most perspicaciously, that:
“it has to be restated that in offences of a sexual nature, it is very desirable that the evidence of the prosecutrix or complaint (sic, complainant) is buttressed by other pieces of evidence implicating the accused in a substantial way. This does not detract from the fact that the Court is not hindered from convicting an accused on the uncoroborated evidence of the complainant.
In the use of corroborative evidence however little or slight it may be there is no rule as to what a corroborative piece of evidence is and how it can be applied. This is because the trial judge is best suited to make use of the evidence being well situated and having the opportunity and singular privilege of hearing first hand the witnesses, considering their demeanour including that of the appellant. Also, where there was enough on ground from which the trial judge can reach a decision then there is no need to warn itself of the danger of acting on the uncorroborated evidence of the prosecutrix. That in this case any way it is not necessary since there was corroborative evidence in the confessional statement, the medical report and even the other prosecution witnesses’ testimonies which had a flow showing the credibility and veracity in those testimonies. Therefore, in terms of corroboration, there were many to solidify the evidence of prosecutrix.
(italics supplied)
The Court cited, with approval, the decision in Ogunbayo v. The State (2007) 8 NWLR (pt. 1035) 157. In that case (Ogunbayo v. State), Tobi JSC, painstakingly, surveyed the chequered trajectory of rape jurisprudence. His Lordship espoused the beneficial view in Iko v. The State (2001) 14 NWLR (pt. 732) 221 that it was not the law that an accused person in a charge of rape could not be convicted on the uncorroborated evidence of the prosecuting.
In His Lordship’s esteemed view, the proper direction was that it was unsafe to convict on the uncorroborated evidence of the prosecuting. He, first, observed that:
There are two dimensions to the issue of corroboration as decided by the Courts. First, the Courts hold that rape is not an offence in which corroboration is required by law and procedure. But the Court should warn itself of the danger of convicting an accused on rape in uncorroborated evidence. Second, an accused person cannot be convicted unless the evidence of the prosecutrix is corroborated.
I take the case law in that order. In The State v. Ogwudiegwu (1968) NMLR 117, it was held that the offence of rape, in order to secure a conviction, corroboration of the evidence of the complainant implicating the accused is not essential, but a Judge must warn himself of the risk of convicting on the uncorroborated evidence of the complainant.
In Okpanefe v. The State (1969) 1 All NLR 420, it was held that by Section 178 (5) of the Evidence Act, the Court cannot convict an accused on a charge of rape without corroboration, and in this regard an early report of the

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commission of the offence is not tantamount to corroboration. Similarly, in Sambo v. The State (1993) 6 NWLR (pt. 300) 399, this Court held … that it is the law that before the prosecution can secure conviction for the offence of rape, the evidence of the prosecuting (the victim of the rape) must be corroborated in some material particular that sexual intercourse did take place and that it was without her consent.
It was also held that a piece of evidence offered as corroboration for the offence of rape must be (a) cogent, compelling, and unequivocal as to show without more that the accused committed the offence charged;
(b) an independent evidence which connects the accused with the offence charged; and (c) evidence that implicates the accused in the commission of the offence charged. See also Upahar v. State (2003) 6 NWLR (pt. 816) 230.
The eminent jurist pointed out most insightfully that:

In Iko v. The State (2001) 14 NWLR (pt. 732) 221 in 2001, eight years after the decision in Sambo, it was held that it is not the rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. The proper direction is that it is not safe to convict on the uncorroborated evidence of the prosecutrix. The Court may, after paying due attention to the warning, nevertheless convict the accused person if it is satisfied with the truth of her evidence. This Court also held that the fact that the prosecutrix says that an accused inserted his penis into her vagina is not ipso facto sufficient proof of penetration in the absence of corroboration. Let me take here the ‘warning business’ that the appellate Courts have given to the trial Judge.
[Italics supplied for emphasis]
His Lordship turned to the justification of the English practice on this matter (that was before the amendment of the law in England). He explained that:
In England where the principle emerged and is applicable, the trial by jury is in force. In view of the fact that the jury convicts, the procedure is that the Judge should warn the Jury of the danger of convicting on the uncorroborated evidence of the complainant. Is that really necessary in Nigeria where the Jury System is no more? What is the practical effect of the law expecting the trial Judge to warn himself of the danger of convicting without corroboration? If he does not warn himself in reality and writes down in his judgment that he did, how useful is that in the entire truth searching process? Is our adjectival law not pretentious here? And can law afford to be pretentious?
He advanced reasons why the corroboration requirement was unnecessary. Listen to His Lordship’s incisive reasoning on this matter:
I am not comfortable with the case law that corroboration is necessary to secure conviction of the offence of rape. This is because I see no statute foisting on the prosecution evidence of corroboration before convicting an accused. Section 350 of the Criminal Code Act, Cap. 77 Laws of the Federation of Nigeria, 1990 which is similar to the States Criminal Codes, does not provide that evidence of corroboration is necessary for conviction. And the Criminal Code specifically provides for offences where corroboration is necessary. Rape is not one of such. The above apart, neither the Evidence Act nor the Criminal Procedure Act or Code provides for corroboration in the offence of rape. I therefore ask, where did we get that law?
The eminent Jurist advanced clues as to the materials from which corroboration could be gleaned. In his view:
…If our adjectival law requires corroboration (a point I am not prepared to concede), then corroboration could be deduced from inter alia, the denials of the accused, the last opportunity the accused had to commit the offence, medical evidence of the examination of the prosecutrix confirming the allegation of recent forcible coitus and the existence of recent semen in the vagina of the prosecuting directly traced or traceable to the accused. 
(Italics supplied)
The Court further held that:
…it has to be restated that in offences of a sexual nature, it is very desirable that the evidence of the prosecutrix or complainant is buttressed by other pieces of evidence implicating the accused in a substantial way. This does not detract from the fact that the Court is not hindered from convicting an accused on the uncorroborated evidence of the complainant.
In the use of corroborative evidence however little or slight it may be there is no rule as to what a corroborative piece of evidence is and how it can be applied. This is because the trial judge 
is best suited to make use of the evidence being well situated and having the opportunity and singular privilege of hearing first hand the witnesses, considering their demeanor including that of the appellant. Also, where there was enough on ground from which the trial judge can reach a decision then there is no need to warn itself of the danger of acting on the uncorroborated evidence of the prosecutrix. That in this case any way it is not necessary since there was

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corroborative evidence in the confessional statement, the medical report and even the other prosecution witnesses’ testimonies which had a flow showing the credibility and veracity in those testimonies. Therefore, in terms of corroboration, there were many to solidify the evidence of prosecutrix. I rely on Ogunbayo v. The State (2007) 8 NWLR (pt. 1035) 157;
[Italics supplied for emphasis]
From the above excerpts of the judgement of the trial Court duly affirmed by the lower Court. I do not entertain any doubt that the lower Courts were on firm footings in their findings and conclusion. As shown above, even prior to the amendment of the Evidence Act in 2011, the liberal posture of this Court was that it was not the rule of law that an accused person in a charge of rape could not be convicted on the uncorroborated evidence of the prosecutrix, Shuaibu v. State (supra); Iko v. State (supra); Ogunbayo v. State (supra); Habibu v. State (supra) etc.

In the circumstance, I endorse the concurrent findings of the lower Court on the sole issue of corroboration presented for the determination of this appeal. There is no merit in the agitation of the appellant’s counsel. Accordingly, I enter an order dismissing this appeal. I hereby affirm the judgement; conviction of, and sentence on the appellant.
Appeal dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: The full horrid facts and circumstances of this case have already been set out in the leading judgment of my learned brother, Nweze JSC.
Those facts need not be repeated. I intend to comment on the issue:
Whether the testimony of PW5 is sufficiently corroborated by the testimony of other witnesses.
In a case of rape, corroboration is not required but it is considered unsafe to convict on the uncorroborated testimony of the prosecutrix. See State v. Ogwudiegwu & Anor 1968 NMLR p. 113.

What is corroboration? Corroboration is evidence which supports the victims testimony.
When it is said that the evidence of the prosecutrix was corroborated by independent witnesses, it means that the evidence of the witnesses, supports the evidence of the prosecutrix. Then the evidence of the prosecutrix has been sufficiently corroborated.
The testimony of the prosecutrix, PW5 was corroborated by PW1 and PW2. Their testimony supports the testimony of the prosecutrix that she was raped repeatedly by the appellant and his co-accused person.
The testimony of PW5 was in the circumstances sufficiently corroborated by the testimony of other witnesses, PW1 and PW2.
For these brief reason as well as those more fully given by my learned brother, Nweze, JSC I too dismiss the appeal.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The appellant and two others were charged before the High Court of Kano State with conspiracy, abduction, rape and illicit sexual intercourse of one Hindatu Sani (f), 16 years old. The offences are contrary to Sections 97(1), 273, 283 and 275 of the Penal Code respectively. There were 10 counts in all. The appellant was charged in counts 1, 2 and 7 with conspiracy, abduction and rape.
The prosecutrix, PW5, was allegedly abducted by the accused persons, kept by the appellant and passed around several police officers at different places for sexual intercourse without her consent. The appellant and his co-accused were found guilty by the trial Court, convicted and sentenced to various fines and terms of imprisonment. The appellant’s appeal to the Court of Appeal was found to be unmeritorious and was dismissed. The judgment of the trial Court was affirmed. Thus there are concurrent findings of fact by the two lower Courts, which will not be lightly disturbed by this Court unless special circumstances are shown.
The sole issue submitted to this Court by the appellant for the determination of this appeal is “whether the testimony of PW5 is sufficiently corroborated in the testimonies of other witnesses.” The crux of the submissions of learned counsel for the appellant is that in a charge for the offence of rape, it is mandatory that before a conviction can be secured, the evidence

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of the prosecutrix must be corroborated. He also submitted that the evidence to be corroborated must itself be credible. He relied principally on the case of Iko Vs The State (2005) Vol. 1 NCC 499 @ 501, 510 and 511.

My learned brother, Chima Centus Nweze, JSC in the lead judgment, with which I entirely agree, has painstakingly examined the decided authorities of this Court on the issue and rightly concluded that as the case law on rape has developed, corroboration of the evidence of a complainant or prosecutrix, while desirable, is not required by law. See: Isa Vs. The State (2016) LPELR – 4001 (SC); Habibu Musa vs. The State (2013) LPELR – 19932 (SC); Ogunbayo vs. The State (2007) 8 NWLR (Pt.1035) 157.

In the instant case, PW5 was 16 years old when she testified. The learned trial Judge had the unique opportunity of seeing and hearing her and of watching her demeanour during her testimony. His Lordship found her to be a credible witness. Besides this fact, notwithstanding the fact that her evidence need not be corroborated, there was other evidence before the Court, such as the medical report. Exhibit A and the testimony of DW3 (1st accused) admitting that he took PW5 from Kofar Nassarawa to a room in Kwalli Police Barracks, that made her evidence worthy of belief. Crucial evidence given by PW5 such as the role played by the appellant (2nd accused) in driving them to Kwalli Police Barracks and Glo Office behind Jifatu Stores where different Police officers had sexual intercourse with her was not contradicted under cross-examination.
The Court below thoroughly reviewed and rightly in my view upheld the findings of fact made by the trial Court. It also examined and again rightly rejected the contention that there were material contradictions in the prosecution’s case.
This is a case in which, notwithstanding the trauma she experienced over a period of two weeks at the hands of the appellant and others, PW5 gave cogent and credible evidence, which could not be dislodged under cross-examination. Learned counsel for the appellant has failed to show any special circumstances to warrant interference with the concurrent findings of fact by the two lower Courts.
It is for these and the more detailed reasons ably marshalled in the lead judgment that I also find no merit in this appeal. It is hereby dismissed.
The judgment of the lower Court affirming the appellant’s conviction and sentence is affirmed.
JOHN INYANG OKORO, J.S.C.: I read in advance the judgment of my learned brother, Chima Centus Nweze, JSC just delivered. I agree with his Lordship that there is no merit in this appeal and that the Court below was right to uphold the judgment of the trial Court which had found the appellant guilty of rape.
The main grouse of the learned counsel for the appellant in his sole issue is that there was no corroboration of the evidence of PW5 – the prosecutrix. In a rape case, corroboration means evidence which confirms the evidence of the prosecutrix. It is that evidence which tends to show that the story of the victim, the prosecutrix, is true and that it is the accused person that committed the crime. Such evidence need not be direct as this may not be possible as rape is not committed in the open. It is enough if it corroborates the said evidence in some material particular to the charge in question. However, where the child is a minor of some discernible age, her sworn evidence need no further corroboration.
There is no law or statutory provision that in rape cases, evidence of the prosecutrix must be corroborated. However, it is a rule of prudence and the settled course of practice by the Court to seek for corroboration in rape cases. See Posu v. The State 2011) 3 NWLR (pt. 1234) 393, Okoyomon v. The State (1973) NSCC, Isa v. The State (2016) LPELR – 40011 (SC), Ezigbo v The State (2012) 16 NWLR (pt. 1326) 318 Sambo v. The State (1993) 6 NWLR (pt. 300) 399.

I must state that where the evidence against the appellant is so overwhelming as in this case, there is no law which prevents a trial Judge from convicting the accused person on the Proven facts.
The learned trial Judge clearly stated his findings in his judgment which have been captured in the lead judgment. From the moment the prosecutrix (PW5) was taken in the police van, through the various places she was taken to over a period of time, there are tales of woe of how she was subjected to orgies of sexual abuse by the appellant and his co – rapists. PW1, Haruna gave evidence of the Appellant taking the prosecutrix to an office near Jiftatu Stores where the 2nd accused forcefully had sexual intercourse with her. PW2 also testified that the 1st accused kept the PW5 in Kwalli Police Barracks for about two weeks

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having sexual intercourse with her uncountable times without her consent. Now speaking of corroboration, I agree with the Court below that these pieces of evidence effectively corroborated the evidence of PW5.
On the whole, it is my view that there was enough corroboration of the evidence of the prosecutrix to support the conviction of the appellant even as I agree that evidence of the prosecutrix alone, if it is cogent and reliable, can ground conviction in rape cases.
This appeal is therefore devoid of merit and is hereby dismissed. I affirm the decision of the lower Court which upheld the conviction and sentence on the appellant.
Appeal Dismissed.
EJEMBI EKO, J.S.C.: The Appellant herein was charged with others for conspiracy, abduction and rape. He was convicted by the trial Court. His appeal against the conviction and sentence was dismissed by the Court of Appeal (the lower Court).
His further appeal to this Court on two grounds of appeal is on facts. That is that:
1. The learned Justices of the Court of Appeal erred in law when they held that the evidence of the PW.5 was sufficiently corroborated.
2. The learned Justices of the Court of Appeal erred when they held that the contradictions in the prosecution’s case did not go to the roots of the charges.

The Appellant’s sole issue, adopted by the Respondent, also on facts is –
Whether the PW.5’s testimony was sufficiently corroborated by the testimonies of other witnesses?

The sole issue, like the two grounds of appeal, is firmly fastened on facts. I find no evidence from the Records, establishing whether any leave of Court was first sought and granted before this further appeal was brought. This ordinarily renders the appeal incompetent if in fact no leave was first sought and obtained before the filing of this further appeal.
This Court will not unless under special circumstances, hear arguments seeking to disturb concurrent Judgments of the Court below on pure questions of law: SERBEH v. KARIKARI (1939) 5 WACA 34. The established policy of this Court is that it will not, for a third time, review the evidence unless special circumstances justify a departure from that practice.
It is clear from Order 2 Rule 32, Supreme Court Rules that when the Court of Appeal “has affirmed the findings of fact of the Court of first instance” it is only upon “exceptional circumstances” that this Court will for the third time be called upon to review the evidence at the trial. The presumption, though rebuttable in the circumstance, is that the Courts below were right and that the Respondent is prima facie entitled to a Judgment dismissing the appeal. The Appellant herein has not been able to persuade me that the Courts below were in this appeal wrong in their concurrent Judgments.
Appellant made an issue of the previous statement in writing of PW.5. Section 232 of the Evidence Act, 2011 is very clear. A witness, like the PW.5, may be cross-examined as to the previous statements made by him in writing relative to the matters in dispute in the proceeding. If however, it is intended that the witness would be contradicted by such previous statement it is mandatory that his attention must be drawn to those portions of the statement which are to be used for the purpose of contradicting him. If the accused person and or his counsel do not have the previous statement, and the statement is with the prosecution, the procedure to follow is by way of Notice to produce served on the prosecution for its production. Without following this procedure, it is idle, as the Appellant is positing (albeit wrongly), that it be presumed under Section 167(d), Evidence Act, 2011, that the prosecutor did not produce the said statement because its production would be unfavourable to him. What is enacted in Section 232 of the Evidence Act is nothing but a rule of fair play and fair dealing with witnesses. A witness should not have his credibility impeached without giving him an opportunity to offer explanation about his previous statement in writing. Sections 167(d) and 232 of the Evidence Act presumption cannot be invoked without due process.
My learned brother, CHIMA CENTUS NWEZE, JSC, has in the lead Judgment dealt extensively with the issue whether corroboration in rape cases is as a matter of law or practice. As he demonstrated in the said Judgment, under the extant Evidence Act, 2011, corroboration of the evidence of the prosecution is no longer the rule of law. I hereby adopt the Judgment.
On the whole, I find no substance in this appeal. I hereby dismiss it in its entirety. The Judgments of the two lower Courts are hereby affirmed. Appeal dismissed.

Appearances

Chief Henry Akunebu with him, E. C. Muokwundo, Mrs. Ruth Eze, Charles Iwuchukwu – For Appellant

AND

M.S. Daneju, Esq. (Solicitor General, Kano State) with him, Musa Danbuni Mohammed, Esq. ( Deputy Director of Civil Litigation), Mrs. Aisha Mahmoud (Assistant Director, Kano State Ministry of Justice), Fariza Abba (Principal State Counsel, Kano State, Ministry of Justice)  –For RespondentABDUCTIONCONSPIRACYRAPE

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