THE NIGERIAN ARMY (2017) ALL FEDERAL WEEKLY LAW REPORT (Pt. 869) 813

FACTS OF THE CASE

 The Appellant, a corporal in the Nigeria army was arraigned before the general court martial under Section 78 of the Armed Forces Act on a charge for defilement of an 11year old girl. The court found him guilty and sentenced him to four years imprisonment. Aggrieved, he appealed to the Court of Appeal where his appeal was dismissed. Subsequently he appealed to the Supreme Court contending that the lower courts erred in law by upholding his conviction.

ISSUES RAISED

The Supreme court distilled a sole issue of determination;

• 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.

ARGUMENT OF THE PARTIES 

Arguments of the Appellant’s Counsel:

• Counsel submitted that the accused person denied committing rape, and that the type of corroboration to be considered is medical evidence and not merely evidence showing injury to other parts of the victim or presence seminal stains on her clothes or those of the accused person. He cited the case of Ukershima V State (2003) NWLR (Pt. 137) 1117.
• He contended that the crux of the appeal is whether, the evidence before the 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. 
•  Counsel further submitted that the evidence of PW2 (the Victim) was flawed, doubtful and discredited and as such ought not to have been relied upon by the General Court Martial. 
• He argued that there were material contradictions in the testimony of PW2 (Victim), which further created a doubt in the prosecution’s case. 
• Counsel argued there’s no nexus between the offence for which the Appellant was charged and the medical report.
• He submitted that sexual intercourse, in a case of rape or defilement, is established upon proof of penetration and such proof must be unequivocally proved by the accused person. 
• He contended that there was absence of medical report to proof that the appellant had sexual intercourse with PW2. 
• He submitted that the lower court erred in law by affirming the finding of the General Court Martial that the birth mark identified on the appellant’s thigh by PW2 was a conclusive proof of the offence of defilement which amounts to misplacement of the burden of proof. He cited the case of Edet Okon V the State (2001) 7 SCNJ 391. 
• He urged the Court to hold the findings of the lower court as perverse and has occasioned miscarriage of justice. He placed reliance on Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360 and Nwosu V. Board of Customs and Excise (1988) 5 NWLR (Pt. 93) 22.

Argument of the Respondent’s Counsel:

• He submitted that the lower court was right in affirming the conviction and sentence of the appellant.
• He submitted that the offence charged under Section 78 of the Armed Forces Act does not require corroboration of evidence as a condition precedent to secure conviction. He relied on the case of Onafowokan V. The State (1987) 3 NWLR (Pt. 61) 538
• 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 submitted that the appellant was charged for defiling PW2 and not for raping her, which is an offence provided under Section 79 of the Armed Forces Act 2004.
• He submitted there was no contradictions in the evidence of PW2, PW5 and the medical report was done to determine whether PW2 was a virgin and whether the appellant had marks in his thighs.
• He submitted that the alleged contradictions are not material enough to warrant the judgment being set aside. He cited Nwokoro V Onuma (1999) 12 NWLR (Pt. 631) 342
• He contended that the Evidence, though circumstantial was sufficient to ground conviction. Mbang V State (2013) 7 NWLR (Pt. 1352) 48 
• He urge the Court to hold that the appellant has not shown that the judgement is perverse.

JUDGMENT/FINAL DECISION 

The Supreme Court unanimously dismissed the appeal filed by Corporal Isah Ahmed and upheld the conviction and four-year imprisonment sentence imposed on Corporal Isah Ahmed by the General Court Martial. The Court held that the prosecution had proven its case beyond a reasonable doubt emphasizing that the victim’s testimony was credible and corroborated medical evidence. The Court also underscored the principle that a minor cannot consent to sexual activity, rendering any sexual relations with an underage is a strict liability offence under the Nigeran Law.  

RATIO DECIDENDI 

The affirmed the following findings of the lower court; 

• Corroborative Medical Evidence confirmed that the victim was not a virgin:

“Corroboration in respect to the offence of rape is evidence which tends to show that the story of the prosecutrix that the accused committed a crime is true. 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 charge in question. It is also settled that corroborative evidence must itself be completely be credible evidence.” The case of Sambo V State (1993) 6 NWLR (Pt.300) 399, Upahar V State (2003) 6 NWLR (Pt. 816) 230

The evidence accepted by the trial court and affirmed by the Court of Appeal and this court, was the testimony of PW2 (victim) that the accused had sexual intercourse with her, which the evidence was corroborated by the testimony of the medical doctor. 

Court held in agreement with the findings of the lower court that the evidence of PW5 (medical doctor) and her medical report, constitutes sufficient corroboration of the evidence of the Victim. 

• Carnal Knowledge and Intercourse: 

Carnal knowledge is the sexual intercourse with an underage female and intercourse means physical sexual contact, especially involving the penetration of the Virgina by the penis ( Black’s Law Dictionary, 8th Edition, Page 2236 referred to), Magaji V Nigeria Army (2008) All FWLR (Pt. 420) 603, (2008) 8 NWLR (Pt. 1089) 338 at 373

• Contradiction in Evidence of the Prosecution Case is fatal:

It is not every contradiction in the Prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favor of the accused. For a contradiction to be material, it must relate to the material fact, it must in addition lead to miscarriage of justice. The Court held that the contradiction alleged by the appellant was not material and irrelevant.  Dibie V State (2004) 14 NWLR (Pt. 893) 257, Ikemson V State (1989) 2 NSCC (Vol. 20) 471, Okonji V State (1987) 1 NWLR (Pt. 52) 659

• Effect of Circumstantial Evidence that has two possible interpretations:

In dealing with circumstantial evidence, where the circumstances are susceptible of two equally possible inferences, the court should accept that inference which goes in favor of the accused rather than inference which favors the prosecution. Das V State of Maharashtora AIR (1977) SC 1164. 

CONCLUSION 

The Supreme Court decisively dismiss the appeal of the Appellant by upholding the conviction of the four years sentence imposed by the General Court Martial and the Court of Appeal. The Court emphasize that any sexual relation with a minor, with consent or without consent amounts to rigorous offence. 

SIGNIFICANCE

The Case highlights the Nigerian Judiciary’s actions in upholding Child rights and ensuring accountability in the Military justice system. It serves as precedent in the legal system for the strict adherence for the protection of Children against any sexual relation. It also showcases the principle of fair hearing and constitutional rights. It recognizes that the Court martial are constitutional sanctioned tribunals with authority in the military personnel.