DAGOGO HARRY IPALIBO v. THE STATE (2014)

DAGOGO HARRY IPALIBO v. THE STATE

(2014)LCN/6806(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of January, 2014

CA/PH/8CR/2013

RATIO

WHETHER THE COURT CAN CHOOSE WHICH GO BELIEVE WHEN WHEN WITNESSES OR EVIDENCE CONTRADICT EACH OTHER.

It is trite law that when witnesses or evidence called by the prosecution contradict one another on a material point, the court can not pick and choose which one to believe and which one to disbelieve: BOY MUKA v. THE STATE (supra). Once there are inconsistencies in the prosecution’s case on material facts, it is not the duty of the court, but of the prosecution, to offer explanations for the inconsistencies. In a situation where prosecution witnesses contradict one another on a material point, without explanation, the prosecution can not be said to have discharged the onus of proving the guilt of the accused beyond reasonable doubt. See ONUBOGU v. THE STATE (1974) SC 1. The consequence of this is that the prosecution has failed to discharge the basic onus of proving the guilt of the accused beyond reasonable doubt. The accused in that situation is entitled to be discharged and acquitted. See NANGI DOKUBO v. THE STATE (2011) LPELR 4574 (CA/PH/157/2007 of 18th July, 2011). Per EJEMBI EKO, J.C.A.

WHETHER IT IS ESSENTIAL IN LAW THAT THE EVIDENCE OF THE PROSECUTRIX IN A RAPE CASE IS CORROBORATED.

It is an established practice in criminal law that though corroboration of the evidence of the prosecutrix in a rape case is not essential in law, it is, in practice, always looked for and it is also the practice to warn the jury against the danger of acting upon her uncorroborated testimony.

See also OKOYOMON v. THE STATE (supra) where the Supreme Court applied this principle. Per EJEMBI EKO, J.C.A.

JUSTICES

EJEMBI EKO Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

Between

DAGOGO HARRY IPALIBO Appellant(s)

AND

THE STATE Respondent(s)

EJEMBI EKO, J.C.A.:(Delivering the Leading Judgment): On 28th January, 2013 the High Court of Rivers state holden at Bori convicted the appellant and one Yorkpara Augustine for the offence of rape contrary to Section 358 of the Criminal Code Cap 37, Vol. 2, Laws of Rivers state of Nigeria, 1999. Mr. Yorkpara Augustine was separately charged and convicted for assault occasioning harm contrary to Section 355 of the said Criminal Code of Rivers State. The rape was allegedly committed on 11th March, 2008 at 20 Kogam Bori that has several apartments or flats. The charge does not state the material time the rape was allegedly committed.

The statement and the particulars of the offence of rape for which the appellant and Yorkpara Augustine were charged, convicted and sentenced read thus –

STATEMENT OF OFFENCE: COUNT 1
RAPE-contrary to Section 358 of the Criminal Code (Cap. 37 Vol.2, Laws of Rivers State of Nigeria, 1999)

PARTICULARS OF OFFENCE
DAGOGO HARRY IPALIBO and YORKPARA AUGUSTINE on the 11th day March, 2008 at No. 20 Kogam Street, Bori in the Bori Judicial Division did had unlawful carnal knowledge of one Mercy I. Nwahiri (sic).

This charge, seriously bereft of all material particulars to sustain a charge of rape, suggests that the offence of rape to wit: having “unlawful carnal knowledge of one Mercy I. Nwahiri” was jointly committed by the two named accused persons at the same time. The court below did not raise any eye brow about the practical or human impossibility of two men having carnal knowledge of one woman at the same time. In criminal proceedings the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. This, the prosecution can only achieve by ensuring that all the necessary and vital ingredients of the charge are proved by evidence. See YOUNG v. COMMISSIONER OF POLICE (1992) 4 SCNJ 113. It is a different matter altogether when the prosecution, themselves, make things difficult and impossible even at the commencement of the proceedings. Volenti non fit injuria should then be the rule.

In every criminal proceeding the first duty of the prosecution is to lay or draw up the charge or allegation constituting a criminal offence with sufficient particulars of the elements or ingredients of the offence. Since the prosecution have the bounden duty to establish the ingredients of the offence with which the accused stands charged, in order to sustain a conviction; all the ingredients constituting the alleged offence must be stated in the charge. By stating in detail the ingredients of the offence in the particulars of the offence the basic duty imposed on the prosecution by Section 36 (6) (a) and (b) of the Constitution would have been discharged. The accused can not be convicted for an offence outside the contents of the charge.All I am laboring to say, my Lords, is that the duty or burden on the prosecution to prove the charge or ingredients of the offence beyond reasonable doubt means also that the ingredients of the offence must be stated in the charge and supported by the proofs of evidence, and the evidence eventually. This is a non-negotiable right of the accused person by dint of Section 36 (6) (a) and (b) of the 1999 Constitution that state:

36. (6) Every person who is charged with a criminal offence shall be entitled to

– (a) to be informed promptly in the language that he understands and in detail the nature of the offence,

(b) to be given adequate time and facilities for the preparation of his defence.

The rape, the subject of this appeal, appears to be a non-statutory rape.

In a charge of rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove that:

a. The accused had sexual intercourse with the prosecutrix

b. The act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.

c. The prosecutrix was not the wife of the accused; and

d. The accused had mens rea, 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.

See NDEWENU POSU & ANOR v THE STATE (2011) 3 NWLR [pt.1234] 393 citing with approval OGUNBAYO v. THE STATE (2007) 1 NWLR [pt.1035] 157; UPAHAR v. THE STATE (2003) NWLR [pt.816] 290, etc.

The necessity for stating in the charge the ingredients of the offence alleged is, in my view, lucidly summarized by Olatawura JSC in N.O. AMADI & ORS v. THE STATE (1993) NWLR [pt.314] 644: before a trial court could come to the conclusion that an offence has been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that the acts of the accused come within the confines of the particulars of the offence charged. The prosecution is enjoined to prove the particulars of the offence charged viz-a-viz the ingredients of the offence in the statute. Now, in the instant case the particulars of the offence of rape charged do not include vital ingredients of the offence like sexual intercourse with the prosecutrix without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or intimidation. It was also not stated therein that the prosecutrix was not the wife of either or both accused. The mens rea of the offence, the intention of the two accused persons to have sexual intercourse with the prosecutrix without consent, was also absent in the charge framed in the most laissez faire manner. The charge is grossly deficient. It in turn, will suffocate the prosecution and impair them in the onerous task of proving the ingredients of the offence charged beyond reasonable doubt. In this case, the prosecution themselves were entrapped in the mines field they created themselves.

Since the particulars of the offence of rape charged do not contain all the ingredients of the offence of rape charged; and the prosecution are enjoined to establish all necessary and vital ingredients of the charge (POSU v. THE STATE supra) constituting the alleged offence; I will agree with Mr. Irerhime of counsel to the appellant that the trial court erred in law to have sustained the conviction of the appellant for rape. The clear duty of the prosecution to prove the charge beyond reasonable doubt includes the duty to establish the ingredients of the offence charged by credible evidence: see EME ORJI v. THE STATE (2008) 10 NWLR [pt.1094] 31 SC; AMADI v. THE STATE (supra).

I have read the record of appeal, the ten grounds of appeal and the briefs exchanged. In substance the only issue in this appeal is whether the alleged offence of rape allegedly committed jointly by the two accused persons on 11th March, 2008 was proved beyond reasonable doubt. Closely associated with this is the use the learned trial Judge made of the totality of the evidence adduced.

Before the trial court comes to the conclusion that the prosecution have proved their case against the accused beyond reasonable doubt it must evaluate the totality of the evidence called by the prosecution. See MOY MUKA v. THE STATE (1976) 10-11 SC 305 at 325-326. Thereafter the defence evidence must be considered against the background of the prosecutions case to see if reasonable doubts exist. If no reasonable doubts exist, the trial court may convict. If however reasonable doubts exist the accused is entitled to be discharged and acquitted. The accused is, at all times, entitled to the benefit of doubt, if any exists in the case.

It appears from the records that not less than 5 persons were accused of raping the same woman, PW.1, in the night of 11th March, 2008. The DW.1’s evidence at page 147 of the record is that “a total of 5 persons were accused of raping the PW.1. They include Mr. Wokoma, Mr. Egbe and Mr. Emeka” and the two accused persons.
This evidence showing the uncertainty of the PW.1 in her allegation, as to who actually raped her, seriously indicts or discredits the case of the prosecution; just as it casts reasonable doubts on the prosecution’s case.

The DW.3 (2nd Accused) at pages 152 of the Record testified, unscathed, that the PW.2 told him that
Emeka and Egbe were the people who raped (PW.1). She told me to make a statement. I made a statement; and we were told to go. The next day, being 13.3.2009, PW.2 sent for me again. When I got there, she told me that the lady (PW.1) had made another statement and said it was 1st Accused and I who raped her, and not longer Emaka and Egbe. She (PW.2) told me to make another statement.

This evidence which the prosecution made no effort to challenge, dispute or contradict was believed by the trial court without any effort at proper evaluation. The PW.1 is the prosecutrix, a vital witness. The PW.2, Saale Patience, was at the material time, the acting Chief Security Officer of the Rivers State Polytechnic, where the PW.1 was a student and the two accused persons staff respectively. She handled the preliminary investigations of the case.
The PW.2 was a very vital or material witness in this case. This evidence of DW.3 (2nd Accused) portrays the PW.1 as a duplicitous and double-tongued character. It also portrays her intent to implicate the accused persons on some after thought. It also shows the PW.2 to be as untruthful as the PW.1. These pictures of PW.1 and PW.2, as self-serving witnesses with no interest to advance the cause of truth and honesty were further boosted by the DW.4, Ajede Egbefumere (aka Egbe). He testified, uncontradicted, at page 155 of the Record that –

I was invited to the Security Department where I was informed by Mrs. Saale (PW.2) that the PW.1 alleged that she was raped by the occupants of room where she slept, that is, myself and Emeka, my room mate. We were required to give statement at the security department, which we did. Two days later we were called back to the security department. We were questioned and told to go back. After then we were called again. We were told that PW.1 had changed her story, that it was not the two occupants of the room who raped her but two lecturers. We were invited again and informed that it was no longer two lecturers but a lecturer and a staff.

This evidence remains resolute and unscathed. The prosecution made no effort, albeit feeble, to challenge or dislodge it when the DW.4 was cross-examined. The trite law is: facts not disputed are taken as established. The DW.4 was therefore entitled to be believed. The learned trial judge, in my view, erred in law to have disbelieved him. His evidence has cast reasonable doubt on the prosecution’s case.

Without proper evaluation of the defence evidence against the prosecution evidence the findings at page 179 of the Record by the learned trial judge, to wit:

From the totality of evidence adduced by the defence, I find that the accused persons and their witnesses are not witnesses of truth. The witnesses called by the accused persons are tainted and suborned

are unsustainable. I can not find, from the printed evidence, any iota of evidence suggesting that the defence witnesses were suborned. In making findings of fact a judge is not permitted to take into consideration extraneous matters. In discharge of his hallowed office the judge is enjoined, always, to exercise his discretion judiciously and judicially. This means that it is only by empirical evidence rationally considered, and not by instinctive intuition or emotions, that the office of the judge shall be discharged in adjudication.

I had observed earlier that from the defence evidence, which were not challenged, or discredited by cross-examination, that PW.1 and PW.2 appear to be untruthful, dishonest and duplicitous. Yet, they were believed and relied upon for the conviction of the two accused persons. At page 177 of the Record the learned trial judge held that –

In this case, the evidence of the PW.1 is corroborated by the evidence of PW.2, PW.5 and Exhibit G.

The unchallenged and undisputed evidence of DW.3 and DW3.4 had splashed some slur on the credibility of the evidence of PW.1 and PW.2.

Mr. Irerhime’s attack on the credibility of Exhibit G is well grounded. On the face of the medical laboratory report, under the column: material; two samples were collected from the prosecutrix for forensic investigation. They were: High Vaginal Swab (HVS), and blood (VDRL). No urine sample or specimen was taken from the PW.1 for urinalysis. However, Dr. P.C. Amadi who signed the report, Exhibit G, found from the “urinalysis” the “presence of protein blood cells and dead sperm cells which are all suggestive of trauma and bleeding and evidence of carnal knowledge with ejaculation of sperm”. As admitted by PW.5 at page 140 of the Record:

It is urine that is used for urinalysis

Now, with no urine samples taken from PW.1, on whose urine, then was the urinalysis done? There is a lacuna Exhibit G looks dubious.

Dr. P.C. Amadi who authored Exhibit G did not testify. Clearly, Exhibit G signed by Dr. P.C. Amadi is a distorted and concocted piece of evidence. Exhibit L and DW.6 strongly suggest that. With Exhibit L and DW.6 the trial court should have been more cautious and insisted on corroboration of the prosecution’s case as a matter of practice.

The PW.5, also at page 140 of Record, testified that Exhibit G does not carry the result of urinalysis. But Dr. Amadi’s Exhibit G had inferences or conclusions drawn from this bogus urinalysis. Between Exhibit G and the PW.5 there are, therefore, material contradictions.
These apart, there is a major lacuna in the prosecution’s case. No effort was made to take blood or DNA samples from the accused persons and duly analysed to enable the court come to the conclusion that the alleged dead sperm cells or blood cells recovered from the urinalysis of the PW.1 matched those of the accused persons. The accused, in criminal proceedings, is entitled to the benefit of doubt whenever there exists a doubt in the case brought against him. The question which the prosecution’s evidence offered no answer is: whose protein blood cells and dead sperm cells, found upon urinalysis (from the PW.1’s urine specimen, if at all), were found in the vagina of the PW.1?

There are more questions, than answers, thrown up by Exhibit G. Dr. Amadi who signed Exhibit G found, upon examination of PW.1, that there was “no genital laceration”. In otherwords, as the PW.5 testified: there was no cut or tear in the genital tract. In Exhibit G it was found from urinalysis that there were presence of protein blood cells and dead sperm, which are all suggestive of trauma and bleeding and evidence of carnal knowledge. From where and who, therefore, did the protein blood cells found in the PW.1’s vagina come? The prosecution offered no answer. They led no evidence to unravel the question. On facts similar the Supreme Court in OKOYOMON v. THE STATE (1973) 1 SC 18 held:

It was not enough that the prosecutrix alleged the insertion of the accused’s penis into her vagina or that he lay on her: see JOS N.A. POLICE v. ALLAH NA GANI (1968) NMLR 8. The doctor should have examined the accused, not as to whether he was capable of having sexual intercourse but as to whether he had a veneral disease of a kind at least similar to that found in the prosecutrix’s vagina.

The explanation offered in Exhibit L by the DW.6 that the dead protein blood cells found in the PW.1’s vagina may be “the residual menstrual blood that normally occurs when the menstrual period is about to dry up” is reasonable and very probable in view of the evidence of the PW.1 that the alleged rape took place just at the end of her menstrual period. This should have not have been whimsically glossed over or dismissed, as the learned trial Judge did, without proper evaluation. In so doing the learned trial Judge, no doubt, has not judiciously and judicially exercised his discretion here.

The PW.1, at page 126 of the Record, had admitted that at the time:

The doctors examined me I had removed the clothes I wore during the incident before I went to the doctor.

The doctors, according to the PW.1, never asked “for (her) clothes for examination”. The statement in Exhibit G that:
Vaginal examination (inspection only) revealed bleeding from the intriotus and blood soaked under clothes”

must therefore be reference to what they saw, including the “blood soaked under-clothes,” after the PW.1 had cleaned up. She never submitted the clothes she wore immediately before and after the alleged rape for forensic examination. The prosecution never asked for these pieces of evidence that the PW.1 herself had tampered with.

The PW.1 did not testify that after the rape or the alleged sexual intercourse she bled and her pants or under-clothes were blood soaked or stained. However, at page 139 of the Record the PW.5 testified that the examination of the PW.1 “eventually revealed – her pants was wet and blood stained”. The PW.5 and Exhibit G seem more exuberant on this issue than the PW.1 herself. The veracity or credibility of Exhibit G was not tested by the cross-examination of its author, Dr. P.C. Amadi, and yet the court below, gratuitously, made Exhibit G sacrosanct.

The evidence of PW.1 suggests that she was first raped by the appellant in his room and again raped by the 2nd accused later on his “cushion in his room”. At page 127 of the Records she testified that she later slept in the same room with Emeka and his room mate. She admitted that immediately after the two major incidents of rape she did not tell Emeka or his room mate that she was raped by anybody, and that she “did not discuss the incident of rape with anybody, apart from the police and the school authority.” And that was some days or several hours after. And even at that she was most ambivalent or duplicitous as to who raped her. She named 5 persons to the PW.2 as those who raped her, including Emeka and his room mate.

The DW.5, wife of the 2nd accused (DW.3) seemed to have offered alibi on behalf of the 2nd accused (DW.3) for this alleged rape that was not debunked. Her evidence is at pages 157 and 158 of the Record; and it is to the effect that she was at home and in the sitting room, particularly, throughout. She did not witness the rape of PW.1 by the DW.3 (2nd Accused) that was done on his “cushion in his room”. DW.5’s evidence which corroborates DW.3’s evidence is a direct affront to PW.1’s evidence. The prosecution left DW.5’s evidence unscathed.

When all the evidence on the strange conduct of the PW.1, not telling anybody (including those she slept in the room with) immediately after the alleged rape and the defence evidence are put together against the PW.1’s evidence on the alleged rape the need for corroboration, as a matter of practice, is of necessity very strong in this case. The entire circumstances of this case warrant the trial court calling for corroboration as a matter of practice before convicting the appellant and the co-accused for the unparticularised rape charge. In IKO v. THE STATE (2001) FWLR [pt.68] 1161 at 1180 E-G Kalgo JSC stated that though corroboration, as a matter of law, is not required; it is in practice necessary as part of caution.

He stated

It is my respectful view, and having regard to the authorities – that although corroboration of evidence of the complainant in a rape case is not essential in law, it is always looked for in practice. In the case of IBEAKANMA v. QUEEN (1963) 2 SCNLR 191 at 194-195 this Court said:

See also OKOYOMON v. THE STATE (supra) where the Supreme Court applied this principle.

At page 177 of the Records the court below held that “in this case, the evidence of the PW.1 is corroborated by the evidence of PW.2, PW.5 and Exhibit G”. The tattered and incredible evidence of the PW.2, PW.5 and Exhibit G (the author of which did not testify on the contentious issues therein) could not offer the necessary corroboration. The piece of evidence that is offered as corroboration of another evidence requiring corroboration as a matter of law or practice must itself be a credible and reliable evidence to act on. In my view, the learned trial Judge was in error when he held that the evidence of the PW.2, PW.5 and Exhibit G were corroborative of the evidence of the PW.1.

The evidence of PW.5 and Exhibit G are contradictory in some material respects. While PW.5 found a cut in the genital tract, apparently to suggest the cause of the blood stain on and wetness of PW.1’s pants; Dr. P.C. Amadi, who authored Exhibit G, found in Exhibit G that there was no genital laceration upon examination of the PW.1. These contradictory findings were for the purpose of the essential corroboration of the evidence of PW.1. The prosecution offered no explanation for these contradictions in their case. Dr. P.C. Amadi who authored Exhibit G did not testify. He was not cross-examined to test the veracity of Exhibit G.

It was submitted correctly by Mr. Ekeh, Senior State Counsel in the Ministry of Justice Rivers State, for the respondent that it is the duty of the trial court to determine which evidence is believable and reliable to ground conviction. The trial court does this by properly evaluating the totality of the evidence before it. The locus classicus on evaluation of evidence in civil cases, which principle can be extended to criminal cases, is MOGAJI v. ODOFIN (1978) 4 SC (Reprint) 53 at 65 wherein the Supreme Court stated, among others, that before the judge comes to the conclusion as to which evidence to believe and which one to disbelieve he should first of all put the totality of the evidence on the point on an imaginary scale and weigh them in order to determine which one has more qualitative or probative value than the other. In determining their relative probative value the judge will naturally have regard to the following factors:
(a) which evidence is admissible;
(b) whether the evidence is relevant;
(c) whether it is credible;
(d) whether it is conclusive; and
(e) whether it is more probable than that given by the other.

In our system, believing or disbelieving a witness or a number of witnesses by mere intuition is not part of the jurisprudence. There must be a rational basis, demonstrated by comparing one empirical set of evidence or facts against the other, for believing or disbelieving any evidence. It is not enough for the judge to state simply, in very omnibus manner, that I believe, or I do not believe, this and that evidence without graphically, verifiably or scientifically demonstrating how he comes to that conclusion or finding.

For the respondent it was submitted by Mr. Ekeh that Exhibit G being documentary; its contents can not be contradicted by oral evidence. This rule does not make sacrosanct the contents of every document. The rule on contradiction states that a piece of evidence contradicts another when it asserts or affirms the opposite of the other. The comparison of one piece of evidence to the other in order to determine whether one contradicts the other is a process of assessment and/or evaluation to determine the credibility of the evidence. There lies the distinction that oral evidence can not contradict the contents of a document. In assessment or evaluation of evidence, the issue is not whether the contents of a documentary evidence were correctly stated therein as intended. The issue is whether even if the contents of that piece of evidence were correct, as intended; they are credible when put side by side with another piece of evidence admitted in the proceedings. In evaluation, what the court does is merely to find out if one piece of evidence, considered in the light of another evidence, is credible and reliable to be acted upon.

From what I have demonstrated above it is clear to me that the conviction of the appellant and one other for the unparticularised rape is a travesty of justice. In the printed evidence the PW.1 alleged two incidents of rape: one in the appellant’s room on 11th March, 2008 and the other on the 2nd accused’s “cushion and in his room” also on 11th March, 2008. The statement of the offence for count 1 and particulars of the offence at page 2 of the Record did not state the particulars of which of the two offences or both that the appellant and the co-accused were convicted of and sentenced for. Referring to only one incident of rape the learned trial judge held at pages 129 and 180 of the Record:
Having carefully reviewed the entire evidence before me, I am satisfied that the incident described by the prosecutrix which occurred on 11.3.2008 truly occurred. I am satisfied, on the evidence before me, that the 1st and 2nd accused persons raped the PW.1 on that date…I reject the denial of the accused persons and I find that the prosecution has proved its case against both accused persons beyond reasonable doubt. I therefore find both accused persons guilty of rape punishable under Section 358 of the Criminal Code Law Cap 37, Laws of Rivers State of Nigeria, 1999.

Now as stated by T.O. Elias, CJN in OKOYOMON v. THE STATE (supra):
It is essential that the offence of which the accused is being convicted should be indicated with sufficient particularity by the trial judge.

The trial judge should have made it clear which of the rapes alleged by the PW.1 against the two accused persons he was convicting them for. The obvious reason for this lies in Section 36 (9) of the 1999 Constitution providing that no person who has established the plea of autrefois acquit or convict “shall again be tried for that offence or for a criminal offence having the same ingredients as that offence”.

The appeal is allowed by me. The appellant has satisfactorily established that his conviction for rape is manifestly a substantial miscarriage of justice. The conviction and sentence of the appellant for rape in the case No BHC/3/2010 on 28th January, 2013 is hereby set aside. In place of the conviction and sentence I hereby enter an order discharging and acquitting the appellant for the offence of rape in the charge no BHC/3/2010.

MODUPE FASANMI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother EJEMBI EKO, J.C.A. just delivered.

The issues raised in the appeal have been comprehensively dealt with. I agree entirely with his reasoning and conclusion that the appeal be allowed. It is also allowed by me. I subscribe to the consequential orders contained in the lead judgment.

STEPHEN JONAH ADAH, J.C.A.: I read in advance the judgment of my lord Ejembi Eko JCA and I agree entirely with the sound reasoning and conclusions therein.

My Lords, in Uche Williams v. The State (1992) NWLR (Pt.261) 515, the Supreme Court while considering the duty of the prosecution to prove the charge against an accused person said:
“There is no doubt whatsoever that under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused proving his innocence before a law Court. For the duration of a trial an accused person may not utter a word, he is not bound to say anything. The duty is on the prosecution to prove the charge against an accused person beyond reasonable doubt.”

This duty is absolute and unilateral on the accusers rather than on the accused. Without mincing words, it is a bad day for a woman to be raped in our community because rape breeds stigma and the stigma is not only on the woman raped but also on the society that has gone animalistic and bankrupt in morals. Sentiments apart, we are a country that believes in and practices the rule of law. The law must always be allowed to take its full course. Under our law, rape is unlawful carnal knowledge of a girl or woman-without her consent, by force, fear or fraud, and it is an essential ingredient of that offence that the intercourse must be without the woman’s consent. In other words, a man will be said to have committed rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and at the time, he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it. Even when consent is 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 can be committed. See; Sunday Jegede vs. The State (2001) 14 NWLR (Pt.733) 264, (2001) 7 SC (Pt.122).

In the instant case, the prosecution has failed woefully in its duty by presenting a badly drafted charge and following it up by putting forward evidence that was badly “tattered”. Exhibit G is the medical report tendered after the examination of the prosecutrix. The Exhibit G instead of acting as corroborative became contradictory. The author of Exhibit G was not called as a witness to clear the contradictions in the report. In the face of this and the well articulated reasons in the lead Judgment, I concur with the findings of my learned brother that the conviction and sentence of the Appellant cannot be sustained. I allow this appeal and I abide with the orders of my learned brother, Ejembi Eko JCA.

Appearances

O. J. Irerhime Esq.For Appellant

AND

C.B. Ekeh, Esq. Senior State Counsel with Mrs. I. Wokocha Senior State Counsel both of
Rivers State Ministry of JusticeFor Respondent