Proof of Penetration in a Rape Charge 

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 14th day of June, 2024

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Ibrahim Mohammed Musa Saulawa

Chioma Egondu Nwosu-Iheme

Haruna Simon Tsammani

Jamilu Yammama Tukur

Justices, Supreme Court

SC/1071C/2018

Between

ALI HAFIZU                   APPELLANT

               And

THE STATE                               RESPONDENT

(Lead Judgement delivered by Honourable Justice Jamilu Yammama Tukur, JSC)

Facts

The Appellant was arraigned before the High Court of Jigawa State on a one-count charge of rape contrary to Section 283 of the Penal Code Laws of Jigawa State 1998 (as amended). The case of the Respondent was that, the Appellant forcefully had sexual intercourse with one Hauwa Magaji (PW1), an 11-year-old girl at Fargoyawa Village/Quarters, Birnin Kudu Local Government Area.

During the trial, the Respondent called three witnesses. PW1 who was the victim testified that when she went to the Appellant’s house to recover the container that she used to sell gruel to the Appellant, the Appellant forcefully grabbed her and forcibly had sexual intercourse with her. 

PW2 – the medical doctor who conducted a medical examination on PW1 after the incident, testified that the medical examination revealed that the hymen was absent, and although there was no evidence of bleeding and smear of the phenomena semen, there were bruises around PW1’s vagina. Under cross-examination, PW2 maintained he could not find any trace of semen in PW1’s vagina, owing to the fact that he examined PW1 9 days after the incident occurred, and even though the absence of a hymen generally may be caused by strenuous exercise and falling from a tree could cause tenderness, his finding in PW1’s case was suggestive of rape. 

The Appellant, in his testimony, as the only witness for the defence, denied knowing PW1. He testified that the allegations against him were false. At the end of trial, and after considering the evidence before it, the trial court convicted the Appellant for the offence of rape and sentenced him to five years imprisonment without an option of fine.

Dissatisfied, the Appellant appealed to the Court of Appeal; however, his appeal was unsuccessful. Consequently, he filed a further appeal at the Supreme Court

Issues for Determination

The Supreme Court adopted the two issues distilled by the Respondent, for the determination of the appeal as follows:

1. Whether the Appellant’s right to fair hearing was breached by the trial court.

2. Whether the Respondent proved the guilt of the Appellant for the offence of rape, beyond reasonable doubt.

Arguments

On the 1st issue, Counsel for the Appellant argued that the trial court had granted the Appellant’s application for PW2 to be recalled for further cross-examination pursuant to Section 162(1) and (2) of Criminal Procedure Code Law of Jigawa State, having been previously discharged, and that the failure of the PW2 to show up for the further cross- examination should have warranted the trial court expunging his evidence from the trial court’s record. Counsel submitted that the evidence of PW2 should be discountenanced, and if this is done, what would be left was the evidence of PW1 which could not be sustained without corroboration. He argued further that the failure of PW2 to appear for further cross-examination amounted to the violation of Appellant’s right to fair hearing under Section 36(5)(d) of the 1999 Constitution, and convicting the Appellant without the further cross-examination meant that the Appellant had been presumed guilty and not innocent contrary to Section 36(5) of the Constitution. He urged the Apex Court to declare the whole trial a nullity, and discharge and acquit the Appellant on account of miscarriage of justice. 

In response, Counsel for the Respondent submitted that the Appellant was afforded ample opportunity to further cross-examine PW2, but having voluntarily closed his case without any compulsion when he concluded the presentation of his defence, he must be bound by such election. He argued that the Appellant cannot rely on the principle of right to fair hearing for the first time just to salvage his appeal, citing NWORA v NWABUEZE (2019) 7 NWLR (pt. 1670) 1@38-39 paras. G – C. Counsel for the Respondent argued further that, by the provisions of Sections 46 and 39(d) of the Evidence Act, the Court has a discretion to admit evidence already given by a witness and make use of his statement where his evidence cannot be procured after delay, as long as the proceedings is between the same parties, the adverse party had the right and opportunity to cross-examine in the first instance as in the instant case, and the question of the rape of the PW1 is the same. He cited SALAU v STATE (2019) LPELR-48114(SC). 

Counsel submitted that assuming without conceding that Appellant was not granted opportunity to further cross-examine PW2, it is not capable to cause breach of his fair hearing and even if the Apex Court found that the Appellant’s right to fair hearing was breached, the proper order in the circumstance would be an order of re-trial,mrather than a discharge of the Appellant.

On the 2nd issue, Counsel for the Appellant argued that the offence of rape was not proved against the Appellant beyond reasonable doubt, to sustain his conviction on the same. He submitted that the prosecution failed to establish that there was penetration, going by the pronouncement of the trial court that PW1’s evidence did not establish rape, but that it was the evidence of PW2 that established rape. He argued that having found in one breath that PW1’s evidence did not establish rape, the trial court cannot in another breath hold that PW2’s evidence corroborated the evidence of PW1. He submitted that the evidence of PW2 cannot rightly corroborate the evidence of PW1, that was weakened by the trial court’s pronouncement. 

Conversely, Counsel for the Respondent submitted that the standard of proof in criminal cases is proof beyond reasonable doubt, and not proof beyond all shadow of doubt. He argued that the evidence of PW2 corroborated the evidence of PW1 to establish the Appellant’s commission of the offence of rape, and that there was indeed, penetration. Counsel further argued that failure of the Appellant to contradict the evidence of PW1, amounts to admission of the material point.

Court’s Judgement and Rationale

Resolving the 1st issue, the Apex Court held that the jurisprudence of the court about fair hearing is on the analysis of what transpired, could it be said that the complainant was denied a reasonable fair trial, and this requires an objective rather than a subjective assessment of the whole situation that led to the complaints in issue. The Supreme Court held that to determine whether or not there was a breach of fair hearing, the peculiar facts of each case will be considered, because fair hearing is primarily a matter of facts and it is the facts as disclosed on the record of proceedings that the court will consider to determine whether or not such facts constitute a breach of fair hearing. The Court relied on its earlier decision in CHIEF J. L. E. DUKE v GOVERNOR OF CROSS RIVER STATE & ORS (2013) LPELR – 19887 (SC). The Court also referred to its decision in MOHAMMED v KANO N. A. (1968) ALL NLR 424 at 426 in which it held that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing; and the true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. 

The Supreme Court held that in the instant case, PW2 testified and was duly cross-examined by the counsel for the Appellant. The Court held that from the records before it, it was clear that thereafter, when the Appellant’s Counsel applied that PW2 be recalled for further cross-examination, it was not opposed; and when PW2 did not appear for the further cross-examination, Counsel for the Appellant did not insist on his recall, but, instead, applied to close the defence and further informed the trial court that the defence had waived its right to address. His Lordships held that it was thus, evident that the Appellant abandoned his quest to further cross-examine PW2, particularly as the trial court had at every adjournment renewed its order that PW2 be recalled, including ordering that a witness summons be issued on PW2. The Supreme Court found that the trial court afforded the Appellant ample opportunity to be heard, but the Appellant waived his right to recall PW2 when he voluntarily closed his case without saying a word regarding PW2, it was thus, incorrect that his right to fair hearing was breached. 

Resolving the second issue, the Apex Court referred to its decision in MUHAMMADU v THE STATE (2020) 17 NWLR (PT. 1753) 252 AT 267 – 258 in which it construed the provision of Section 285(1) of the Penal Code, Laws of Jigawa State on the offence of rape and held that the essential ingredients of the offence of rape which the prosecution must prove in order to secure a conviction include (i) That the accused had sexual intercourse with the prosecutrix; (ii) That the act of sexual intercourse was done without consent, or that the consent (if any) was obtained by fraud, force, threat, intimidation, deceit or impersonation; (iii) That the prosecutrix was not the wife of the accused; (iv) That the accused has the means via, the intention to have sexual intercourse with the prosecutrix without her consent, or that the accused acted recklessly not caring whether the prosecutrix consented or not; and (iv) That there was penetration, no matter how slight. 

The Apex Court held that the above ingredients must be proved to the satisfaction of the court with compelling and conclusive evidence, and though the burden of proof is proof beyond reasonable doubt, it does not mean proof beyond all doubt or all shadow of doubt. Relying on its decision in SHUAIBU ISA v KANO STATE (2016) LPELR – 40011 (SC), the Court further held that “in proof of rape therefore, the most essential ingredient is penetration, the extent, no matter how slight will be sufficient proof. It is well accepted that penetration, with or without emission, is sufficient even where the hymen is not ruptured and the slightest penetration is sufficient evidence of the act of sexual intercourse”.

The Apex Court, in agreement with the Court of Appeal, held that PW1 was clear in her description of what transpired when she unequivocally testified that the Appellant “removed her pant and inserted his penis into her vagina”. The Court held that the Appellant failed to cross-examine PW1 on this essential part of her testimony, hence, it is deemed admitted, bearing in mind the settled position of the law that what is admitted needs no further proof. The Court held further that the courts below rightly found corroboration of the evidence of PW1 in the evidence of PW2 who examined PW1, and testified that he saw tenderness and laceration of PW1’s hymen, indicative that PW1 had been sexually violated. The Supreme Court found that PW1’s testimony and the medical evidence on record proved beyond reasonable doubt that the Appellant unlawfully penetrated PW1’s vagina amounting to rape, and established the guilt of the Appellant as charged. 

Appeal Dismissed.

Representation 

Oluwole Afolabi with Y. Oaikhena and A. O. Daniel for the Appellant.

Abdulfatai Oyedele for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)