Whether the Witness through Whom a Confessional Statement Was Tendered During Trial within Trial Must Be Made Available for Cross-Examination in the Substantive Case

CASE TITLE: AYUBA v. STATE (2021) LPELR-56550(CA)

JUDGMENT DATE: 8TH OCTOBER, 2021

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: ABUBAKAR MUAZU LAMIDO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

The core of this appeal/cross-appeal is the offence of rape.

FACTS

The appeal is against the judgment of Jigawa State High Court, Dutse Judicial Division (trial Court) delivered on 24th September 2019.

The Appellant was jointly charged with 3 others for the offence of rape contrary to Section 282 of the Penal Code. The Appellant was the 2nd accused person at the trial Court. The Appellant allegedly had unlawful carnal knowledge of a twelve-year-old girl sometime in the month of June 2008 at Kila Town in Gwara, Local Government Area of Jigawa State.

​The Appellant pleaded not guilty to the charge and the trial commenced. The prosecution called 6 witnesses and tendered in evidence, 7 Exhibits. The Appellant testified in his defence and called one other witness. After the adoption of written addresses, the trial Court in a considered judgment found the Appellant guilty as charged and sentenced him to 7 years in prison without an option of a fine and 10 strokes of the cane on 10 market days.

Dissatisfied with his conviction and sentence, the Appellant appealed to the Court of Appeal. The Respondent also, cross-appealed against the sentence imposed on the Appellant by the trial Court.

ISSUES FOR DETERMINATION

The issue for determination considered in the appeal is as follows:

“Whether the prosecution has proved the case of rape against the Appellant beyond a reasonable doubt.”

The cross-appeal on the other hand was determined on:

“Whether the trial Court has the power to alter a mandatory sentence as provided in Section 283 of the Penal Code (Miscellaneous Amendment) Law No. 9 of Jigawa State 2014.”

DECISION/HELD

The Appellant’s appeal was dismissed and his conviction was affirmed. The cross-appeal was allowed. The sentence imposed by the trial Court was thereby set aside and in its stead, the Appellant was sentenced to life.

RATIOS:

• CRIMINAL LAW AND PROCEDURE – CHARGE(S): Appropriate time to object to the mode of preferring a charge or in the presentation of a charge; the consequence of failure to do so
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF RAPE: Ingredients the prosecution must prove to succeed in a charge of rape
• CRIMINAL LAW AND PROCEDURE – CHARGE(S): Effect of error in stating the offences or the particulars required to be stated in the charge
• EVIDENCE – COMPETENCE OF A CHILD: Principles guiding the admissibility of evidence of a child
• EVIDENCE – CROSS-EXAMINATION: Whether the witness through whom a confessional statement was tendered during trial within a trial must be made available for cross-examination in the substantive case