ASIRUWA v. STATE
(2020)LCN/14501(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, July 24, 2020
CA/B/276C/2016
Before Our Lordships:
Samuel Chukwudumebi Oseji Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
BRIGHT ASIRUWA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT WHERE A CHARGE IS AMENDED, A NOTE OF THE ORDER OR AMENDMENT SHALL BE ENDORSED ON THE CHARGE
Now, the law is well settled that amendment of a process relates back to the date the original document was filed. An amendment applies retrospectively. It is like the scriptural saying of old things have passed away, behold all things have become new. That much is put beyond doubt by Section 164 (4) of the Criminal Procedure Law of Bendel Stating that:
Where a charge is amended, a note of the order for amendment shall be endorsed on the charge and the charge shall be treated for purposes of all proceedings in connection therewith as having been filed in the amended form.
See also Gava Corp. Ltd v. F.R.N. (2019) 10 NWLR (PT 1679) 139 @ 164, Attah v. State (1993) 7 NWLR (PT 303) 257 and Jones v. Police (1960) 5 F.S.C. 38). PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Edo State convicting appellant of rape and indecent assault of a girl of less than eleven years of age. The said charges were introduced by way of amendment of the original charges of defilement and indecent assault of the same girl who testified in the trial as P.W.4. Appellant was his victim’s teacher in Primary School, Class 3, at the time of the offence. His two grounds of appeal here encapsulate his sole grouse with the judgment so I here proceed to reproduce them without their particulars:
Ground 1: The learned trial Court erred in law in assuming jurisdiction on the charge filed on the 28th day of February 2008 to try the appellant on the allegation of indecent assault and defilement of a girl under the charge of rape under Section 222 and Section 358 of the Criminal Code after a period of two months.
Ground 2: The trial and conviction of the appellant by the trial Court on a charge of raping PW4, a girl child under 11 years on a charge filed on the 28th day of February, 2008 for an offence which was allegedly
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committed on 26th day of November 2007 was a nullity.
In his very short brief of argument, appellant correctly identifies one single issue for determination arising from these two grounds of appeal as follows:
Whether the trial judge was right in assuming jurisdiction to try a statute barred case.
In argument, appellant first pointed out that he was originally charged by the prosecution with defilement and indecent assault of P.W.4, a girl less than 11-year old, contrary to Sections 218 and 222 respectively of the Criminal Code Laws of Bendel State 1976 as applicable to Edo State, but that the prosecution amended the said charges by substituting the defilement charge with rape contrary to Section 358 of the same Criminal Code Law. He complains that that amendment was made to confer jurisdiction on the Court over him, the prosecution according to him having realized that Section 218 of the Criminal Code that creates the offence of defilement requires it to commence prosecution within two months of the commission of the offence, which it failed to do and same statute barred.
He says the offence of rape under Section 358 of the Criminal Code Laws of Bendel State 1976
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with which he was charged and convicted is a wrong section for his crime as a person cannot be charged for raping a girl who is less than eleven years of age; that at best only a charge of defilement can be brought in that circumstance. The description of a woman or a girl under Section 357 of the Criminal Code, he argues, does not include a girl under 11 years old but only an adult and a grown up girl; that the same Criminal Code provides for defilement under Section 218 for a child less than 11 years. He referred us to page 81 of the records where P.W.4 herself said she was born on 10th of December 1996. Having been alleged to have raped a girl of less than 11 years of age, which offence can only be defilement under Section 218 of the Criminal Code, he contends that he ought to have been tried within two months of the offence as stated under that section and his prosecution over three months after the offence means it was already statute barred and bringing up a new charge of rape under Section 358 of the Criminal Code is incapable of creating a new offence.
For the foregoing reason and given the fact that he was originally
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charged on 28/2/2008 for defilement of the said girl, which charge shows that the offence occurred three months and two days earlier on 26/11/2007, he contends that the charge was statute barred.
To determine whether an action is statue barred, he said, all the Court need do is to compare the date the offence was alleged committed and when the action to seek redress for it was commenced. An action that is statute barred, he submitted, not only removes the right of enforcement but also denies the Court of jurisdiction, leaving the claimant with a bare unenforceable cause of action. The lower Court he thus argued was without jurisdiction and his trial also a nullity so we should so declare, allow the appeal and discharge and acquit him.
The State while conceding that he was originally charged for defilement and indecent assault pointed out that the prosecution in exercise of its right under Sections 162 and 163 of the Criminal Procedure Law of Bendel State 1976 amended the said charges with the new charges, including rape, and appellant pleaded to them without any objection, even as he was represented by counsel; that having not objected to the
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amended charge, as he was obliged to do under Section 167 of the same Criminal Procedure Law, appellant waived his right to complain of any defect in the charge and cannot be heard to now say that the old defilement charge still applied or was effective and any defect in it applies to the new charge of rape on which he was convicted.
It also argued that in any case the operative age in Section 357 of the Criminal Code Law of Bendel State creating the offence of defilement relates to a girl of less than 11 years and not a girl that is already eleven years at the time of the act, as it contends P.W.4 was at the date of the said act.
It argued too, that Section 357 of the Criminal Code Law of Bendel State which defines the offence of rape does not provide for exclusion of any woman or girl on grounds of her age; that the only defence to rape under that section is proof of the consent of the girl or woman alleged raped.
On these grounds, it submitted that the amended charges of rape and indecent assault on which appellant was convicted were neither wrong nor statute barred so the judgment of the lower Court should be affirmed.
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Let me say, first, that it is not correct as asserted by the State that the prosecutrix, P.W.4, was up to eleven years as at 26th November 2007 when appellant was said to have violated her. P.W.4 herself, led by the same prosecution, told the trial Court, in her evidence-in-chief, that she was born on 10/12/1996. She even went on to add that “In 2007, I was nine years old.” (See page 81 of the Records.) She was not challenged on this assertion by the prosecution so it is not open to it to argue the contrary here.
Having said that, I note (and it is common ground) that the original charge of defilement upon which the prosecution arraigned appellant was amended and the count of defilement was substituted with a new charge of rape for which he was convicted and sentenced to life imprisonment. He pleaded to this new rape charge and trial proceeded on it. On the 18/2/2014 when the charge was amended and he pleaded to the new rape count, he was represented by counsel, who did not also raise any objection to the amended charge and the trial. Now, the law is well settled that amendment of a process relates back to the date the original document was filed. An
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amendment applies retrospectively. It is like the scriptural saying of old things have passed away, behold all things have become new. That much is put beyond doubt by Section 164 (4) of the Criminal Procedure Law of Bendel Stating that:
Where a charge is amended, a note of the order for amendment shall be endorsed on the charge and the charge shall be treated for purposes of all proceedings in connection therewith as having been filed in the amended form.
See also Gava Corp. Ltd v. F.R.N. (2019) 10 NWLR (PT 1679) 139 @ 164, Attah v. State (1993) 7 NWLR (PT 303) 257 and Jones v. Police (1960) 5 F.S.C. 38).
It is therefore wrong for appellant to build his arguments of statute-bar on the old charge of defilement that was amended by the lower Court before his conviction.
And coming to his argument that the offence of rape cannot apply to a girl of less than eleven years that P.W.4 was, Section 357 of the Criminal Code Law, Cap. C19 of Bendel State 1976 does not state any cut-off date regarding who is a girl for purposes of rape. That section simply says:
Any person who has unlawful carnal knowledge of a woman or girl, without her
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consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of them, or by means of false and fraudulent representation as to the nature of the act, or, in the case of married woman, by personating her husband is guilty of an offence called rape.
Section 358 of the same Law goes on to state that anyone who commits the offence of rape is liable to life imprisonment, with or without caning.
The Lawmaker having not stated in the statute when a girl child becomes a ‘girl’ to be capable of being raped, it is not the province of the Court to interpret it otherwise as suggested by appellant.
Furthermore, the offence of rape, for which appellant was convicted, unlike that of defilement, does not have a limitation date for its commencement, so the argument of statute bar and its effect on the jurisdiction of the trial Court put forward by appellant is of no moment.
For all the foregoing reasons, I find the sole issue argued by appellant lacking in merit; accordingly, I hereby resolve it against him and also dismiss the appeal.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I
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had a preview of the judgment of my learned brother, B.M. UGO, JCA, just delivered.
I agree with his reasoning and conclusion to the effect that this appeal lacks merit and should be dismissed. I also dismiss the appeal and abide by the consequential orders made in the leading judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned Brother, BOLOUKOROMO MOSES UGO, JCA and I am in agreement with the reasoning and conclusions reached in resolving the Appeal against the Appellant. The Appeal is hereby dismissed for lacking in merit.
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Appearances:
Mrs Q.O. Etinosa For Appellant(s)
I.O. Kadiri, Esq., Senior State Counsel with him, E.S. Okuonghae, Esq., also Senior State Counsel both of Edo State Ministry of Justice For Respondent(s)
