LUCKY JACOB AKPAN v. THE STATE (2014)

LUCKY JACOB AKPAN v. THE STATE

(2014)LCN/6969(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of March, 2014

CA/C/159C/2009

RATIO

JUDICIAL NOTICE: WHETHER A COURT MAY BE ENTITLED TO INVOKE AND APPLY ALL EXTANT LAWS IN A STATE

This court, like all other courts, is entitled to invoke and apply all extant laws in a State. It can do that by, judicially, noticing such laws. This must be so for jura novit curia: the court knows the law, a maxim that found statutory expression in section 74 of the Evidence Act [then applicable to the proceedings at the lower court].
True, indeed, the concept of judicial notice codified in the above section derives from the Victorian maxim, lex in gremio iudicis sedere- the law grows in the bosom of the Judge, Amata v Omofuna (1997) 7 NWLR (Pt 485) 93, 111. Thus, a court is entitled to apply any extant law which it is called upon to apply or any law of its acquaintance: acquaintance gained from its general knowledge of laws or from enquiries from proper sources it may resort to in the circumstance, Commonwealth Shipping Rep v P70 Branch Services (1923) AC 191, 212; Ado Ibrahim and Co Ltd v Bendel Cement Co Ltd (2007) LPELR -188 (SC) 21, F-G.

Properly speaking, where a court elides a consideration of an existing law in its judgment, such a judgment may be set aside for having been rendered per incuriam. That is, in ignorance of the relevant law, Tanko v State (2009) LPELR -3136 (SC) 37, AB; Buhari v INEC [2008] 19 NWLR (Pt 1120) 246, 372; Rossek v ACB Ltd [1993] 8 NWLR (Pt 312) 382; African Newspapers v FRN [1985] 2 NWLR (Pt 6) 137; Cross on Precedent in English Law 139. The simple answer to the question in issue one, therefore, is that the arguments of counsel for the appellant, though very tendentious, are, actually, sophistic. PER CHIMA CENTUS NWEZE, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

LUCKY JACOB AKPAN Appellant(s)

AND

THE STATE Respondent(s)

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): The appellant in this appeal, Lucky Jacob Akpan, was arraigned before the High court of Akwa Ibom state, holden at Uyo, on March 10, 2009 [exactly, five years ago]. In the one count charge before the court [hereafter referred to as the lower court], the Honourable Attorney General of Akwa Ibom State, on behalf of the State, informed the lower court that the appellant, on March 19, 2008, at Ikot Okoro in Oruk Anam Local Government Area in the Ukanafun Judicial Division, raped one Nseobong Emmanuel Udo (f). In the said State, the offence of rape is punishable under Section 367 of the Criminal Code, Cap 38, Volume 2, Laws of Akwa Ibom State, 2000, page 184 of the record.

At page 184 of the record, the lower court indicated that the appellant pleaded “not county” (sic) to the charge. Following his not-guilty plea, the matter went on trial. The Prosecution marshalled four witnesses and tendered twelve documents, exhibits 1 – 12. On his part, the appellant [accused person, as he then was] testified as DW1. DW2; DW3; DW4 and DW5 testified in support of the spirited defence he put up at the trial. He [the appellant] equally tendered exhibits 12A; 13 and 14. There was yet one other document, simply, identified as “IDIA.”

In its judgment, delivered on April 17, 2013, the lower court, satisfied that the Prosecution had proved the commission of the offence of rape beyond reasonable doubt against the appellant, found him guilty as charged. It convicted him, accordingly, and sentenced him to seven years imprisonment with hard labour. It, however, granted him reprieve from whipping.

Understandably, the appellant was aggrieved by his conviction and sentence. He approached this court through his Notice of Appeal containing one ground. With leave of court, he filed six additional ground of appeal against the said judgment. Five issues were formulated from those grounds. They were framed thus:
1. Whether the information before the trial court ought to be quashed for failure of the prosecution to obtain the consent of the trial Judge before preferring same?
2. Whether the trial court was not wrong when it convicted the accused appellant upon the uncorroborated evidence of the prosecutrix?
3. Whether the prosecution had disproved the defence of alibi put up by the appellant?
4. Whether the prosecution proved the guilt of the appellant beyond reasonable doubt?
5. Whether the accused/appellant was given a fair hearing before the trial court?

The respondent condensed the questions into four issues, viz,
1. Whether the information filed against the appellant was defective?
2. Whether the defence of alibi put forward by the appellant availed him in the circumstances of the case?
3. Whether the prosecution has proved the guilt of the appellant beyond reasonable doubt?
4. Whether the appellant was given a fair trial by the trial court?

Unarguably, the four issues of the respondent are preferable for the allure of their concision. The phraseology is, truly, a masterpiece of brevity. Above all, though concise, the third issue is, sufficiently, commodious to embrace the appellant’s second issue. In the circumstance, we shall adopt the respondent’s four issues. For the avoidance of doubt therefore, the issues for the determination of this appeal are:
1. Whether the information filed against the appellant was defective?
2. Whether the defence of alibi put forward by the appellant availed him in the circumstances of the case?
3. Whether the prosecution has proved the guilt of the appellant beyond reasonable doubt?
4. Whether the appellant was given a fair trial by the trial court?

ARGUMENTS ON THE ISSUES

ISSUE ONE

Whether the information filed against the appellant was defective?

APPELLANT’S CONTENTION
When this appeal came up for hearing on January 23, 2004, Iniabasi Udobong, for the appellant, adopted the brief filed on July 19, 2013, although deemed, properly, filed and served on November 6, 2013. In the said brief, Counsel cited section 314(3) (a) and (b) of the Criminal Procedure Law of Akwa Ibom State.

In his view, section 314 (5) is authority for the proposition that non-compliance with the consent requirement leads, inevitably, to the quashing of the information, citing Attorney General of the Federation v Isong [1986] 1 QLRN 75; Okafor v State [1976] 1All NLR (Pt.1) 385.

He canvassed the view that section 340 of the Edict referred to in Okafor v State (supra) is in pari materia with section 314 of the extant Criminal Procedure Law of Akwa Ibom State. He explained that, in the instant case, there was nothing on the record to indicate that the consent of the lower court was ever sought for or obtained before the information was preferred.

He observed that what appears at page 1 of the record is a letter from the prosecution addressed to the Registrar of the lower court at Ukanafun. He maintained that the above letter did not qualify as an application for consent. He pointed out that, nowhere on the face of the information or in the record, did the lower court grant the prosecution leave to file the information. He urged the court to quash the information filed on March 2, 2009 in charge No. HUK/2c/2009 and set aside the entire proceedings emanating there-from for being a nullity.

RESPONDENT’S SUBMISSIONS
Counsel for the respondent, Eno Jacob (Mrs), Senior State Counsel, MOJ, AKS, Uyo, first applied to withdraw the respondent’s brief filed on October 31, 2013. In the absence of any objection from the appellant’s counsel, order was made as prayed. The said brief was struck out. Learned Senior State Counsel, then, adopted the respondent’s brief filed on November 11, 2013, but deemed, properly filed and served on January 23, 2014.

In the said brief, settled by Ekpenyong Ntekim, Hon. Attorney General and Commissioner for Justice, AKS, it was pointed out that section 314(3) (a)-(b) (supra) had become stale and spent as at the date of his arraignment, having been repealed and/or amended by the Criminal Procedure (Amendment) Law 2006.

In his view, given the circumstances of the said amendment, removing the requirement of consent prior to the preferment of information, the appellant’s argument on the basis of the old state of the law was without foundation, Olafisoye v FRN [2004] 4 NWLR (Pt.864) 580; 2004 LPELR 2553 (SC).

He contended that, even without an amendment of the above section of the CPL, the appellant’s argument would still have been unavailing at this stage of the proceedings since he did not raise the issue at the lower court when the charge was read to him and before his plea thereon, citing section 165 of the CPL, Cap 39 Laws of Akwa Ibom State; section 167 of CPA; Magaji v Nigerian Army (2008) LPEER- 1814 (SC); (2008) 8 NWLR (Pt.1089) 338.

He drew attention to the fact that the appellant was represented by counsel from his arraignment to his conviction and sentence. All along, he never raised any objection as to the consent of the lower court prior to the preferment of the information. He maintained that it was inappropriate for the appellant to raise that objection now, for the first time on appeal after his conviction. He urged the court to discountenance the appellant’s arguments on this issue.

RESOLUTION OF THE ISSUE
Unarguably, prior to 2006, any information filed in Akwa Ibom State otherwise than in accordance with the provisions of section 314(3) (a) and (b) of the Criminal Procedure Law (supra) was liable to be quashed pursuant to section 314(5) of that law. Other States in the Federation had similar enactments, see, for example, section 18 (11) of the Criminal Procedure Edict, 1974 [which replaced section 340 (2) of the Criminal Procedure Law, Cap 31, Laws of Eastern Nigeria, 1963], considered in Okafor v State (supra); section 340 (2) (b) of the Criminal Procedure Law, Cap 49, Volume 11, Laws of Bendel State, 1976, considered in Corporal Livinus Ugwu v State [2013] 2-3 MJSC (Pt 11) 143, 161 and many others.

Emboldened by the above authorities, Counsel for the appellant invited this court to quash the information filed at the lower court in Charge No: HUK/2c/2009 on the ground that the prosecution did not comply with the consent requirement (supra). With utmost respect, this submission betrayed his misconception of the extant law in the said State.

Consistent with the above maxim and section, we have taken judicial notice of an extant enactment titled, Criminal Procedure (Amendment) Law, 2006. It is contained in Akwa Ibom State of Nigeria Gazette, No 25, Vol 24 of June 24, 2010 [published by the Government Printer, Ministry of Information, Uyo, on June 25, 2010]. The said Amendment law, with a commencement date of July 6, 2006, provides in section 1:

Section 314 of the Criminal Procedure Law, Cap 391, Laws of Akwa Ibom State, 2000, is hereby amended as follows:
(a) By deleting the expression verified on oath before magistrate’ appearing in paragraph (a) of subsection 3 of the section; and
(b) By deleting the whole of paragraph (b) of subsection (3) of the section.

It was against this background that counsel for the respondent invited the court to discountenance the arguments of the appellant’s counsel. We, entirely, accept this invitation. The import of the above statutory coup de grace evident in the said Amendment Law has long been settled by superior authorities.

The cases are many. Only one or two of them will be cited here, Adesanoye v Adewole [2006] 14 NWLR (Pt 1000] 242; Abubakar v Bebeji Oil and Allied Products Ltd [2007] 18 NWLR (Pt 1066) 319; Goldmark (Nig) Ltd v Ibafon Co Ltd [2012] 10 NWLR (Pt 1308) 291. We find no merit in the appellant’s complaint in this issue. We resolve it against him.

ISSUE TWO

Whether the defence of alibi put forward by the appellant availed him in the circumstances of the case?
[Appellant’s Issue Three]

APPELLANT’S SUBMISSIONS

Counsel contended that alibi, which means ‘elsewhere” is a defence that, at the time of the alleged commission of the alleged offence, the accused was elsewhere other than at the scene of the crime, citing Nwaturuocha v The State (2011) 9 LRCNCC 1, 16A; Ozaki v The State (1900) All NLR 94; Njovens v The State [1973] 5 SC 17.

He canvassed the view that a successful plea of alibi was enough to sustain an acquittal. He noted that, in the instant case, the prosecution alleged that the appellant committed the alleged offence on March 19, 2008. However, in his defence, the appellant stated that he left home on March 17, 2008 and did not return until March 24, 2008, citing page 147 of the record. He took the view that the result of the police investigation was insufficient to disprove the plea of alibi.

Citing page 204 of the record, he argued that the lower court erred in placing the onus of proving his alibi on the appellant. He contended that once he had introduced evidence of the alibi, it became the duty of the prosecution to disprove it, Aiguoreghaian v The State [2004] 3 NWLR (Pt. 860) 367, 481. He submitted that, from the above statement of the lower court at page 206 of the record, the reasonable doubt thus created ought to have been resolved in his favour, Oghor v The State [1999] 2 LRCNSC 117, 143; Kalu v State [1988] 4 NWLR (Pt. 90) 503, 510.

He surmised that the lower court was, highly, influenced by its perception that the appellant told lies when he said that he went to the church programme with DW3 and returned with him. He submitted that, on the state of the evidence on alibi, it was unreasonable to make a conclusive finding that the appellant was at the scene on March 3, 2013. In his view, there was no independent evidence fixing the appellant at the scene at the material time.

He contended that the lower court’s finding that the prosecution had disproved the plea of alibi [due largely to the evidence of DW3] was speculative. He maintained that the guilt of a person charged with an offence must be proved beyond reasonable doubt. Thus, no person ought to be convicted of, and punished for, a crime based on a mere speculation, Onofowokan v The State [1987] 3 NWLR (Pt.61) 538, 541.

Counsel canvassed the view that, even if the accused person lied when he said that he went to and return from the church programme with DW3, that falsehood would not relieve the prosecution of the burden of proof beyond reasonable doubt, Udom Sampson Udo Ikpe v The State [unreported decision of this court in CA/C/207C/2010 of November 8, 2012.

He urged the court to hold that the lower court was in grave error in neglecting the plea of alibi put up by the appellant when the prosecution did not disprove same. He invited the court to resolve this issue in favour of the appellant.

RESPONDENT’S RESPONSE
On this issue, learned counsel for the respondent, first, invited the court to consider the implication of the accused person’s invocation of the plea of alibi, citing, Ibrahim v State [1991] 4 NWLR (Pt.186) 399; [1991] 5 SCNJ 129; (1991) LPELR – 140 (SC), OBAKPOLOR vs. STATE (1991) 1 NWLR (Pt.165) 113; (1991) LPELR-2148 (SC); Attah v State (2010) LPELR-597(SC); [2010] 10 NWLR (Pt. 1201) 190.

He pointed out that, in the instant appeal, the evidence of PW1 and PW2, which the lower court believed and acted upon, completely, fixed the appellant at the scene of crime at Ikot Okoro on the material date of March 19, 2008. Worse still, all efforts which the appellant made to tie himself to other persons and the church event at Utu Etim Ekpo from March 17, 2008 – March 23, 2008, crumbled.

Counsel pointed out that, in proof of his alibi, the appellant called one Effiong Jack Okoro, DW2, who in paragraph 3, at page 164 of the record, testified that “something happened on the accused person on the night of 24th March, 2008.’This witness deposed in paragraph 3, at page 168 of the record, that he saw when the appellant left for the said programme on March 17, 2008 despite his earlier testimony under cross-examination in paragraph 4, at page 165 of the record.

Counsel remarked that this witness was on morning duty at Community Secondary school, Mbiakot, throughout 2008 starting from 6.am yet he claimed he saw the appellant in Ikot Okoro going to the Church event at Utu Etim Ekpo on March 17, 2008 at 8.am. He observed that the witness did not even disclose if he lived in Mbiakot, where he claimed he worked in 2008 or Ikot Okoro, where he claimed that he saw the appellant on March 17, 2008 leaving Ikot Okoro for Utu Etim Ekpo.

He drew attention to the next witness for the appellant, DW3. This witness, Pastor Michael A. Udotong, testified to the effect that, at a certain period, the appellant was his Deputy Chairman at Christ Faith Church Inc., Nung Ikot Asanga District. Counsel pointed out that it was important, for the credibility of the appellant’s alleged alibi, to meticulously, compare the testimony of DW3 with that of the appellant in respect of the events of March 17, 2008 to March 23, 2008, concerning the celebration at Christ Faith Church, Utu Etim Ekpo.

Counsel observed that, of all the evidence which the appellant called in proof of his alibi, he kept away a star witness to the fact of his leaving his house on March 17, 2008 till March 23, 2008. The appellant had, in paragraph 6, page 149 of the record, stated that Mekdo Lucky Jacob (Mrs) was one of his wives who went with him to the Jubilee celebration at Utu Ekpo on March 17, 2008.

He cited Odu v State [2000] 7 NWLR (Pt.664) 283; Ebri v State [2004] 11 NWLR (Pt.885) 589 on the evidential status of a plea of alibi where the prosecution adduced sufficient evidence fixing the accused person to the scene of crime at the material time.

He pointed out that, in the circumstances of this case, where DW3, the appellant’s only relevant witness to the fact of his being at the jubilee, denied the appellant in crucial areas, the appellant’s claim of being at Utu Etim Ekpo with either or both his wife, Mrs. Mekdo Lucky Jacob and the DW3, Rev. Michael Udotong, was incredible.

He noted that, while the appellant was hiding away Mrs. Mekdo Jacob, the wife with whom he allegedly went to Utu Etim Ekpo, Rev. Udotong (his DW3), vehemently, denied going to and/or returning from the event in Utu Etim Ekpo with him or staying in the same building with him as falsely claimed by him, the appellant.

He pointed out that, while admitting seeing the appellant only once on March 3, 2008, during service at the Cathedral at an unstated time, DW3, who denied the appellant’s assertion of impossibility of his being away from the venue of the celebration at Utu Etim Ekpo, admittedly, just thirty minutes away from the scene of crime at Ikot Okoro, testified that “it was not possible” for Ministers like him to leave the venue of the event “to anywhere and come back,” but that for non-Ministers, [like the appellant], “that was very possible,” citing Ani v State (2003) 11 NWLR (Pt.830) 142, 167 paragraphs H-P; 168 paragraph D.

He noted that it was from the con of these pieces of evidence before the lower court that its rejection of the appellant’s of the plea of alibi would be better appreciated. He contended that, with the above combination of the positive testimonies of PW1, PW2, DW1 and DW3, the appellant’s plea of alibi was destroyed and there was no obligation on the part of the respondent to lead further evidence in rebuttal thereof.

RESOLUTION OF THE ISSUE
As shown above, placing reliance on Nwaturuocha v The State (supra); Ozaki v The State (supra); Njovens v The State (supra), Counsel for the appellant contended that a successful plea of alibi was enough to sustain an acquittal. We agree with that statement of the law which has, almost, ripened into a juridical legal truism.

Indeed, the raison d’etre of alibi as a defence is that it seeks to establish that, at all times material to the commission of the offence, the accused person was nowhere near the locus criminis. He could not, ordinarily therefore, be expected to be involved in the physical execution of the alleged offence, Ebre v State [2001] 12 NWLR (Pt.729) 617, 635.

Counsel cited page 206 of the record. There, the lower court disclaimed the appellant’s story that he did not leave the venue of the event which he claimed to have attended from March 17 – March 24, 2008. Learned counsel contended that the lower court should have resolved the doubt created in the circumstance in favour of the appellant [as accused person]. With respect, this submission would appear to gloss over the unanswerable caveat evident in the eloquent and alluring reasoning of the erudite and urbane Jurist, Fabiyi JSC in Aliyu v State [2003] 6-7 MJSC (Pt 111) 64. In the formidable logic of His Lordship’s reasoning:
There is nothing esoteric or extra-ordinary in a plea of alibi which postulates that the accused [person] could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and acceptable evidence to fix the accused person at the scene of the crime at the material time, his alibi is, thereby logically and physically demolished. [page 81, italics supplied]

His Lordship, approvingly, cited Njovens and Ors v State (supra); Ochemaje v State [2008] 15 NWLR (Pt 109) 57, 78; The State v Ezekiel Adekunle [1989] 1 CLRN 348.

Now, on the question of alibi, the lower court proceeded thus:
The only defence of the accused person is that he was at the Christ Faith Church Inc/International Headquarters at Utu Etim Ekpo on the date in question. According to the accused person, he went to the said church for the Golden Jubilee of the said Church which he said held from 17/3/2009 to 23/3/2008. The accused person told the court that he left his village, Ikot Okoro on 17/3/2008 and did not come back to the village until 23/3/2008. He tendered the programme/brochure for the said Church programme…exhibit 12A. [The] accused person who testified as DW1 told the court that he went to the said church programme with one of his three wives. He called [ ] the Area Overseer of the said church as his witness and he testified as DW3. His name is Pastor Michael A. Udotong. DW1 said he went to the said function with DW3. The accused person also called Effiong Jack Okoro; his son, Samuel Lucky Jacob and one of his wives, Mrs Theresa Lucky Jacob, all of whom testified as DW2, DW4 and DW5, respectively. In the main, all the said witnesses for the defence were in court to give evidence of the alleged fact that the accused person left Ikot Okoro on 17/03/2008 and did not return thereto until 24/03/2008. [page 203 of the record]

The lower court was not satisfied that the testimonies of these witnesses established the defence of alibi which the appellant pleaded. Quite apart from the un-contradicted testimonies of PW1 and PW2, which pinned down “the identity of the person who committed the said offence” to the accused person, page 204 of the record, the lower court, equally, relied on the evidence of DW3. The accused person [as DW1] had claimed that “he left for the programme on 17/3/2008 with DW3 and also returned with him on 24/3/2008.”

DW3, however, did not endorse the story of the accused person. Under cross examination, he deposed that:
I went to Utu Etim Ekpo for the Golden Jubilee of my said church on my own and alone. I did not go with the accused person, I did not also come back with the accused person after the celebration. At the headquarters of the church, I did not stay with the accused person during the Jubilee celebration. We stayed separately. [page 205 of the record, italics supplied].

That was not all. At page 205 of the record, the lower court observed that “the accused person who said he went to the said church Jubilee with one of his wives, did not call his said wife who would have been in a better position to say whether the accused person left the venue of the event at all and in particular on 19/3/2008.” In the circumstance, the court invoked section 167(d) of the Evidence Act, 2011, against the accused person, page 205 of the record.

On the whole, the court disbelieved the said defence of alibi. It rather believed “the PW1 and PW2 that it was the accused person who had intercourse with the PW2 in the process and without her consent…,” page 206.

We have no justification for disturbing the findings and conclusion of the lower court on the said defence of alibi. As that court, rightly, found, the testimonies of PW1 and PW2 fixed the appellant to the scene of the crime at the material time. As shown above, evidence fixing the accused person at the scene of crime at the material time has the effect of, logically and physically, demolishing the defence of alibi, Osuagwu v State [2013] 1 MJSC (Pt 11) 130, 149; Aliyu v State (supra); Njovens and Ors v State (supra); Ochemaje v State (supra); The State v Ezekiel Adekunle (supra); also, Obakpolo v State [1991] 1 SCNJ 91, 107 – 108.

Worse still, the DW3’s disclamation or renunciation of the appellant’s story [as shown above] exposed the vacuity of that sole defence. Indeed, as the lower court found at page 205 of the record:
…the accused person…did not call his …wife who would have been in a better position to say whether the accused person left the venue of the event at all and in particular on 19/3/2008. Rather [he] has carefully withheld the evidence of that wife of his and hid her from the court…The law is that a party is not under a duty to call any witness or number of witnesses. But that will be fatal to the case of such party if a material witness or evidence is withheld…the accused person knew that if he had called his wife, Mrs Mekdo Lucky Akpan, who went with him to Utu Etim Ekpo for the Golden Jubilee of Christ Faith Church Inc held at its world headquarters from 17/3/2008 to 23/3/2008, her evidence in court would have been unfavourable to [him]

As noted above, the appellant’s story was that he went to the said Jubilee event with his said wife, Mrs Mekdo Lucky Jacob, page 149 of the record. We, entirely, agree with the lower court that, in the circumstance, the said Mrs Mekdo Lucky Jacob, was a material witness, State v Azeez [2008] 14 NWLR (Pt 1108) 439, 475. If she, indeed, went with the appellant to the event, she must have seen it all. Her testimony was, thus, material. We find no merit in the appellant’s complaint against the lower court’s invocation of the presumption of withholding evidence against him.

In all, we endorse the findings and conclusion of the lower court that, having regard to the testimonies of PW1 [pages 109 -111 of the record] and PW2 [pages 120 – 121 of the record], fixing the appellant at the scene of the said offence of rape, Osuagwu v State (supra); Almu v State [2009] 10 NWLR (Pt 1148) 31; Afolalu v State [2010] 16 NWLR (Pt 1220) 584; Olaiya v State [2010] 3 NWLR (Pt 1181) 423, as charged, his defence of alibi, was unavailing, Aliyu v State (supra); Njovens and Ors v State (supra); Ochemaje v State (supra); The State v Ezekiel Adekunle (supra); also, Obakpolo v State (supra); as the testimonies of PW1 and PW2 had demolished it, Osuagwu v State (supra).

We endorse the position that these pieces of evidence had the effect of rebutting the said defence of alibi and establishing the identity of the appellant as the ravisher of the prosecutrix, Omotola v State [2009] 7 NWLR (Pt 1139) 148. We, therefore, resolve this issue against him.

ISSUE THREE

Whether the Prosecution has proved the guilt of the appellant beyond reasonable doubt?

APPELLANT’S SUBMISSIONS
First, on the question of corroboration [which was the appellant’s second issue], counsel submitted that there was no rule of law requiring corroboration of the evidence of the prosecution before an accused could be convicted of the offence of rape. He noted, however, that as a matter of practice, the courts, always, demand that the evidence of the prosecutrix must be corroborated in some material particular, citing Ibeakanma v Queen [1963] 2 SCNLR 191, 194; IGP v Sumonu (1957) WRLR 23.

He recited the ingredients of the offence of rape on the authority of Okoyomon v State [1973] 1 SC 18, 26; Upahar v State (2003) 6 NWLR (Pt.816) 252-253; Posu v State (2012) 10 LRCNCC 60, 76 – 77; Iko v State [2001] 90 LRCN 2896, 2919. He maintained that there must be corroboration of any of the above ingredients in some material particular before an accused person could be convicted of rape, Upahar v State: (supra) at 256.

Armed with these principles, he submitted that there was no evidence to show that the present appellant raped the prosecutrix other than her ipse dixit. In his view, the evidence of PW1, the prosecutrix’s brother, was insufficient to corroborate her evidence on any of the material elements of rape, citing page 117 of the record. Next, he turned to the evidence of PW3, the Medical Practitioner, who examined her, page 134 of the record. He contended that, on the face of the record, the lower court did not, expressly, seek any corroboration of her evidence. He, equally, maintained that the court did not warn itself of the danger of convicting on the uncorroborated evidence of the prosecutrix.

He canvassed the view that even if the court, unconsciously, regarded the evidence of PW1 and PW3 as corroborative of the evidence of PW2, those pieces of evidence [PW1 and PW3] did not, in fact, corroborate the evidence of PW2 on any of the material ingredients of the offence of rape. In his submission, the evidence of PW3 did not corroborate the evidence of PW2. He maintained the said witness did not hazard any guess as to the possible cause of the scratches on the thighs of PW2 or the reddishness and bruises at the entrance to her vagina, citing Jegede v State [2001] 89 LRCN 2518, 2522.

He urged the court to hold that the evidence of PW2 was not corroborated as regards the most essential ingredient of rape i.e penetration, Iko v The State (supra) at 2913. He opined that, in the absence of corroboration of the evidence of the prosecutrix in any material respect, the lower court ought to have warned itself that it was unsafe to convict the appellant. He invited the court to hold that, on the strength of Iko v State (supra), the absence of corroboration of the evidence of PW2 in a material particular was fatal to the case of the prosecution.

With regard to the question of proof beyond reasonable doubt [the appellant’s fourth issue], he submitted that for the prosecution to succeed in a charge of rape, all the material elements of the offence must be proved, Posu v State (2012) 108 LRCNCC 60, 77. He contended that, in this case, the prosecution had failed to prove penetration of PW2’s vagina by the appellant beyond reasonable doubt. In his view, if the prosecutrix was actually raped until blood came out from her vagina, and she did not take her bath until the doctor examined her, it was curious that the doctor, who examined her, did not mention seeing any blood or even dried or caked blood on her.

He submitted that if PW2 was raped and her hymen was broken by the appellant, the PW3 would have recorded the evidence of vaginal bleeding as the PW2 claimed.

He, further, noted that, in her evidence under cross-examination, PW2 was emphatic that the incident took place at 2pm on the material date. He pointed out that the attention of the PW2 was drawn to her extra-judicial statement to the police at page 125 of the record. She had no explanation for the inconsistency of the evidence in court viz-a-vis exhibit 7 as regards the time of commission of the offence, Nwokearu v State (2010) 15 NWLR (Pt.1215) 1, 27. He noted that if the time of commission of the offence was in doubt, it followed logically that the lower court was wrong to have dismissed the plea of alibi in the manner that it did.

He, further, submitted that the evidence of PW4, the police officer that investigated the case, was totally against the verdict of guilt entered by the lower court. In his view, it was the duty of the prosecution to explain the contradictions between the evidence of PW1 and PW2, on the one hand and the evidence of PW4 on the other hand. He observed that if the offence was actually committed on 19th June , 2008, and reported to the police same day, there was no reason for the delay of three months or more before recording statements from the suspect and witnesses, Akpan v State (2009) 7 LRCNCC 159, 168.

In his view, the PW4 was on solid ground in expressing scepticism about the veracity of the PW2’s claim that the appellant raped her. He accused the lower court of delving into the realm of fantasy in making some of the findings he did in this case. He was emphatic that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt.

RESPONDENT’S ARGUMENTS
On her part, counsel for the respondent conceded that the appellant’s counsel, correctly, stated the ingredients of the said offence of rape, citing section 366 of the Criminal Code; Ekpo v State (1976) LPELR-1095 (SC); (1976) All NLR 312; Posu v State (2011) LPELR-1969 (SC). Counsel, also, agreed that corroboration was required in support of the evidence of PW2, the victim of the rape in this case. Counsel observed that the character of corroborative evidence has been extensively considered in several judicial authorities, Mbele v The State [1990] 4 NWLR (Pt.145) 484, 500; Posu v The State (supra).

She submitted that, in the instant case, there was before the lower court medical evidence showing injury, both to the private part and other parts of PW2’s body, consistent with force or struggle. She noted that the testimony of PW3 on the material points was not contradicted as the witness was not cross examined, meaning that the appellant did not dispute those facts, citing Cameroon Airlines v Otutuizu (2011) LPELR- 827 (SC); [2011] 4 NWLR 512.

She drew attention to the testimony of PW1 who, on the other hand, stated at p.110 that from a distance of 40 meters where he was hiding, he saw when the appellant “grabbed” “PW2” by the wet wrappers on her and removed the said wrapper leaving her only in her “pants.” That was not all. The appellant next grabbed PW2’s pant and wanted to remove it followed by a struggle pursuant to which the appellant succeeded in tearing the said pant and he [the appellant] dragged PW2 into the house. While still in the bush, PW1 further stated that he heard PW2 “screaming and shouting ‘please do not rape me, please do not rape me:” many times.

Counsel pointed out that on the issue of sexual intercourse, the evidence of PW1 and the prosecutrix, PW2, were germane. She contended that, from the testimonies of these three witnesses, there was no factual basis for contesting the fact that the appellant had carnal knowledge of PW2, the prosecutrix. She maintained that it was immaterial whether that act is described as “carnal knowledge” “sex” or “sexual intercourse,” Posu v The State (supra).

RESOLUTION OF THE ISSUE
Prior to the amendment of Nigeria’s Evidence Act in 2011, scholars and other writers had greeted, with forceful disapprobation, the practice which required corroboration of the evidence of a rape victim, Y. Osinbajo , Cases and Materials on Nigerian Law of Evidence (Lagos: Macmillan Nigeria Publishers Ltd, 1992); 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 reservation, 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.

Now, in its judgment [page 13, page 196 of the record], the lower court disclosed that:
At the close of cross examination of PW2, the medical doctor who said he examined and treated the PW2 as aforesaid and issued the medical report took the stand, He testified as PW3. His name is Dr Patrick Aniete Essiet. PW3 said PW2 was his patient and that it was on 20/3/2008 he saw her at the outpatient department of the General Hospital, Ikot Okoro with the history of being attacked by a known person on 19/3/2008. On examination of PW2, PW3 said he saw an incised wound on her left shoulder and on the back at the left area of the left scapular bone. PW3 further said he also found abrasions or bruises on her thighs. PW3, who said he also carried out a vaginal examination of PW2, informed the court that he found out that PW2’s hymen was broken and the introitus was reddish and bruised. PW3 further identified the said medical report and the same was tendered in evidence through him, admitted without objection and marked exhibit 1…

All these notwithstanding, learned counsel for the appellant, still, impugned the conviction of the appellant on the ground, inter alia, that the evidence of PW3 did not corroborate the evidence of PW2. On her part, counsel for the respondent canvassed the view that there was medical evidence showing injury, both to the private part and other parts of PW2’s body, consistent with force or struggle. She noted that the testimony of PW3 on the material points was not contradicted as the witness was not cross examined, meaning that the appellant did not dispute those facts.

We entirely agree with the submissions of counsel for the respondent. We entertain no doubt that PW3’s unchallenged evidence, sufficiently, corroborated the evidence of the prosecutrix on the essential ingredients of the offence of rape. What is more, only recently, the apex court in Habibu Musa v State (2013) LPELR -19932 (SC) 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 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 firsthand 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 apex court cited, with approval, the decision in Ogunbayo v The State [2007] 8 NWLR (Pt. 1035) 157. Indeed, in the said Ogunbayo v State (supra) which the apex court, approvingly, endorsed in Habibu Musa v State (supra), Tobi JSC, painstakingly, surveyed the chequered trajectory of rape jurisprudence.

The accomplished Jurist 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.
The distinguished jurist, 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 prosecuting 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 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 august Justice of the Supreme Court pointed out most insightfully that:
ln 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 prosecuting. The proper direction is that it is not safe to convict on the uncorroborated evidence of the prosecuting. 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.

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 prosecuting 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]

As shown above, counsel for the appellant stood by the appellant’s denial of the allegation of the commission of the offence against him. He would appear to have underrated the probative value of the unchallenged medical report of PW3. The lower court [page 200 of the record] noted that “PW3 said when he examined the PW’s introicus (sic), (ie entrance to the vagina) he observed that the same was reddish and bruised. There were also bruises on the PW2’s tights (sic). All these to my mind are evidence of struggle and unapproved tampering with the PW’s vagina.”

In our view, this finding is unexceptionable for in Popoola v State [2013] 7 MJSC (Pt 11) 191, 210 – 211, the apex court, citing Iko v State (supra), held that “what is required is that, once denial is at play, the court is encouraged to look for a medical report showing injury to the private part of the prosecutrix or any other part of her body.” The lower court was, therefore, in the cherished company of the highest court in the land on this point.

Even then, the lower court was not done yet. At page 200 of the report, it continued:
In addition, although corroboration is not a requirement of the law, the PW1 was also a witness to what happened. At least he saw when the accused person gripped the PW2 and removed the wrapper she had on. Indeed, PW1 said he also saw when PW2’s pant was torn by the accused person. Above all, though PW1 was not in the room to see what transpired, he heard PW2 shouting and raising the alarm calling for rescue but none was forthcoming to her. The evidence of PW2 has thus been largely corroborated by the PW1.

Against this background, we make concurrent findings on the question of the corroboration of the evidence of the prosecutrix that the appellant ravished her. That is, if, indeed, corroboration was necessary, in the first place, Ogunbayo v State (supra); Habibu Musa v State (supra); Iko v state (supra); The State v. Ogwudiegwu (supra) cited with approval in Ogunbayo v state (supra). In all, we find no merit in the appellant’s complaint here. We resolve it against him.

With regard to the contention on the proof of the said offence against the appellant beyond reasonable doubt, [fourth issue in the appellant’s brief], we find, with due respect to counsel, that there is, equally, no justification for disturbing the conclusion of the lower court. According to the court:
In this case, PW2 painted a graphic picture of what happened. The date was 19/3/2008…The sun was shining and that is why the PW2 was spreading her cloth in the sun to dry at that time. First, the accused person held her hand and told her he wanted to have sex with her. The accused person later threw the wrapper PW2 was tying on away. He struggled to remove the pant which was the only thing PW2 had on her. PW2 resisted the attempt to remove her said pant. She also raised alarm calling for assistance but none was forthcoming. She was dragged into the house by the accused person. The accused person tried to stop the PW2 from raising more alarm and even used his hand to gag her. When PW2 proved too stubborn, the accused person used his machete to inflict a wound on the left shoulder of PW2… The accused person tore the said PW2’s pant, removed his own trousers and brought out his instrument, the penis. [page 199 of the record]

Concerning the specific requirement of penetration, as an ingredient of the offence of rape, the lower court proceeded thus:
What did the accused person do with the penis he removed as aforesaid? He inserted it into the vagina of the PW2. As a result, there was blood which came of the vagina…
The said evidence of the PW2 is very consistent with the evidence of PW2 and exhibit 1. In this case, the evidence is not only that the accused person had sexual intercourse with the PW2 but also that there was actual penetration of the penis into the vagina. The PW2 did not give her consent for the accused person to do so. Rather he took it by force and by violence…As an evidence of penetration, the PW2’s hymen was ruptured and broken. See the evidence of both PW2 and PW3. Furthermore as evidence of the struggle…, PW3 said when he examined the PW2’s introicus (sic), (ie entrance to the vagina) he observed that the same was reddish and bruised. There were also bruises on the PW2’s tights (sic). All these to my mind are evidence of struggle and unapproved tampering with the PW2’s vagina… [page 200 of the record, italics supplied]

In the con of these findings, we find no merit in the submissions of the appellant’s counsel. The settled position of the law, as endorsed in several decisions too numerous to be cited here, is that rape is unlawful carnal knowledge of a girl or woman without her consent. An essential ingredient of that offence is that intercourse must be without the woman’s consent.

Put simply, a man would be said to have committed rape if he has unlawful sexual intercourse with a woman who, at the time of the intercourse, did not consent to it. At the material time, he must have known that she did not consent to the intercourse or he must have been reckless as to whether she consented to it.

The law is such that even when consent was obtained by force or threat or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, the offence could be said to have been committed, Popoola v State (supra) 217 -218; Jegede v State [2001] 14 NWLR (Pt 733) 264; [2001] 7 SC (Pt 1) 122. The lower court found that the appellant, notwithstanding his denial, penetrated the victim’s vagina. We resolve this issue against the appellant.

ISSUE FOUR

Whether the appellant was given a fair trial by the trial court?

APPELLANT’S SUBMISSION
Arguing this issue [listed as the fifth issue in the appellant’s brief] counsel referred to section 36(4) of the Constitution of the Federation of Nigeria and Okoduwa v The State [1988] 1 NSCC 718. He equally cited Mohammed v Kano Native Authority [1968] SCNLR 558, 561; Ariori v Elemo [1983] SCNLR 1, 28 on the standard employed in determining fair hearing. In particular, he drew attention to page 172 of the record for the warning which the lower court issued to the PW4 before his testimony. It was, also, contended that the lower court did not evaluate his evidence. Counsel, finally, drew attention to letters written by traditional rulers from the appellant’s community informing the court of the appellant’s bad character. He urged the court to resolve this issue in favour of the appellant.

RESPONDENT’S CONTENTION
Expectedly, counsel for the respondent debunked these arguments. counsel cited Orugbo v Una [2002] 16 NWLR (Pt 792) 175, 211 -212; Magaji v Nigerian Army (2008) LPELR -1814 (SC) on the duty of an appellate court where a lower court is accused of bias. He cited section 206 of the Evidence Act, 2011 as authority for the said caution issued to the appellant.

He drew attention to what an appellant who complains of improper evaluation must do to discharge the burden he imposed on himself, citing Igage v State [1999] 14 NWLR (Pt 637) 1. He reiterated the DW3’s disclamation of the story of the appellant that both of them attended the Jubilee mentioned earlier together, page 170 of the record.
Counsel contended that the appellant could not demonstrate the influence of the said letters on the lower court’s findings of fact; reasoning and conclusion.

RESOLUTION OF THE ISSUE
True, indeed, the following entries appear at page 172 of the record:
DW4 Sworn on the Holy Bible and elects to state in Annang language. But before he does so, he has been duly warned as follows;
You, Samuel Lucky Jacob, are hereby cautioned that if you tell a lie in your testimony in this proceeding or wilfully mislead this court, you are liable to be prosecuted and if found guilty you will be seriously dealt with according to law.

That was in the proceedings conducted on June 26, 2012. At page 20 of the appellant’s brief, it was contended that “the above warning is unusual in criminal or even civil proceedings. The intention was apparently to intimidate the witness.” It was against this background that all the cases on fair hearing were cited, pages 19 – 21 of the brief.

We, entirely, agree with counsel for the respondent that there is no merit in this complaint. Section 206 of the Evidence ACT, 2011, provides thus:
Any witness summoned to oral evidence in any proceedings shall before giving such evidence be cautioned by the court, or the registrar upon the court’s discretion, in the following words –
You (Full name)…
Are hereby cautioned that if you tell a lie in your testimony in this proceeding or wilfully mislead this court you are liable to be prosecuted and if found guilty you will be seriously dealt with according to law.

As a learned author has, rightly, pointed out “section 206 [supra] is one of the innovations of the Evidence Act, [2011], although its legal effect is not entirely alien,” see, J. Amadi, Contemporary Law of Evidence in Nigeria (Port Harcourt: Pearl Publishers, 2012) 2040. We resolve this issue against the appellant.

The next complaint was on the improper evaluation of the evidence of PW4 in that the lower court did not factor in his testimony that from 17/3/2009 -24/3/2008 he “did not see the accused person.” There is considerable force in the contention of the respondent’s counsel that, quite apart from the evidence of PW1 and PW2 fixing the appellant at the scene of the crime [as, already, shown above], there was, also, the evidence of DW3 which put paid to the appellant’s claim that both of them [appellant and DW3] attended the Jubilee celebration together. We find no merit in the appellant’s complaint here.

Finally, we find nothing on the record pointing to the admission of the said letters of the traditional rulers in evidence. Indeed, it was not the appellant’s submission that the lower court, wrongly, admitted evidence of his bad character, R v Thomas [1958] 3 FSC 8; Lawal v State [1966] 4 NSCC 111 or that it could be deduced that the lower court relied on the evidence of his bad character in arriving at its decision, Lawal v State (supra) or that the said letters prejudiced the mind of the lower court against him, R v Thomas (supra). In the circumstance, we have no hesitation in resolving this issue in favour of the submission of the respondent’s counsel. The appellant’s complaint on this issue, also, fails.

Having resolved all the issues against him, we find that we have to, and we hereby, dismiss this appeal as being unmeritorious. The appellant’s appeal against the above judgment of the lower court is hereby dismissed. In consequence, we hereby enter an order affirming the lower court’s conviction and sentence on the appellant.

UZO I. NDUKWE-ANYANWU, J.C.A.: I agree with the reasoning and conclusions in the lead judgment. I have nothing more to add.

ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the Judgment just delivered by my learned Brother, Chima Centus Nweze, JCA, dismissing this appeal as being unmeritorious. All issues raised therein for determination have been eloquently resolved. I am in agreement with his reasoning and adopt his conclusions affirming the conviction and sentence of the Appellant.

Appearances

Iniabasi UdobongFor Appellant

AND

Eno Jacob (Mrs), Senior State Counsel, MOJ, AKS, UyoFor Respondent