JOHN JULIUS v. THE STATE (2019)

JOHN JULIUS v. THE STATE

(2019)LCN/13775(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of September, 2019

CA/EK/11C/2018

JUSTICES

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

JOHN JULIUS Appellant(s)

AND

THE STATE Respondent(s)

RATIO

INGREDIENTS TO ESTABLISH THE OFFENCE OF RAPE

For Sexual Intercourse to be termed as Rape, there must be a lack of consent by the Victim. See MUSA V THE STATE (2013) LPELR 19932, OGUNBAYO VS STATE (2007) AND LPELR 2323, IDI VS STATE (2017).
The prosecution did not prove that there was penetration of any sort no matter how slight. The Respondent only stated that the Appellant had Sexual Intercourse with her. She never alluded to the fact that the Appellant Penetrated her. There was no evidence direct or indirect of the penetration of the male organ of the Appellant into the organ of the Respondent. SUNDAY JEGEDE VS THE STATE (2001) LPELR 1603 where Belgore JSC held:
?The offence of Rape is the unlawful carnal Knowledge of a woman or Girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation or any kind or by fear of harm or by means of false and fraudulent misrepresentation as to the nature of the act or in the case of a married woman, by personating her husband. The Rape is only committed in circumstances set only above with clear evidence of penetration and who was Responsible for it.”
It therefore, means that apart from the prosecutrix proving lack of consent, the fact of penetration must also be proved.
In the present case, the Respondent never said that there was penetration of any sort. The essential and most important ingredient of the offence of Rape is penetration and if penetration is not proved, the prosecution cannot be said to have proved its case beyond reasonable doubt. Penetration however, slight is sufficient and it is not necessary to prove an injury or the rupture of the hymen to constitute the crime of Rape.” See IKO VS STATE (2001) 7 SCWJ PG 391, OKOYOMON VS STATE (1973) 1 SC PAGE 21. SEE ALSO THE STATE VS MASIGA (2017) LPELR 43474.
It is not enough that the prosecution/Respondent said that the Appellant had Sexual Intercourse with her without her consent but the fact of penetrations must be proved beyond reasonable doubt.
?These are the issues that plagued the prosecution in proof of Rape. This offence cannot be proved without the basic ingredient. I must say that the prosecution failed to prove penetration from the testimony of the Respondent. The prosecution therefore failed to prove its case against the Appellant beyond Reasonable doubt. PER NDUKWE-ANYANWU, J.C.A.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ekiti State High Court delivered by Hon. Justice J. O. Adeleye on 30th day of June, 2017 wherein the Appellant was found guilty of rape and sentenced to Life imprisonment.
The brief summary of the facts are as follows:
The Appellant was arraigned before the trial Court on a two count charge of rape and assault contrary to Section 358 and 352 of the Criminal Code Law, Cap C16 Laws of Ekiti State of Nigeria, 2012 respectively.
On arraignment the Appellant pleaded ?Not Guilty? to all the charges and the case proceeded to trial.
At the trial the Respondent called three (3) witnesses and tendered some exhibits while the Appellant testified on his behalf and called an additional witness.
It was the case of the Respondent that the Appellant raped and assaulted one Alice Ozar, a 40 years old woman at Oke-Imesin Road, Efon Alaaye Ekiti on 16th July, 2016.
The Appellant in his defence denied committing the said offences and alleged that he was set up by the Alice Ozar. He contended that at the time of

the alleged crime the Appellant was 17 years old boy in search of a job to enable him raise money for school fees. That in his search, he got engaged by one, Alice Ozar (Pw1), to work in her farm. That after the closed of work, Pw1 refused to pay him for his labour and instead accused him of raping and assaulting her. The case was reported to the Urhobo Progressive Union at Efon Alaaye. The Appellant denied the allegation and called for the Urhobo deity (Ayelala) to be used to swear but PW 1 prosecutrix declined. After few days PW1 reported to the police at Efon Alaaye ? Ekiti where the Appellant was subsequently arrested.
After the close of the parties? case, written addresses were filed and exchanged. At the end of addresses for Prosecution/Respondent and Defence/Appellant, the trial Court in its judgment convicted and sentenced the Appellant to life imprisonment on the offence of rape while discharging and acquitting the Appellant on the offence of assault.
Dissatisfied with the decision of the trial Court the Appellant filed a Notice of Appeal on the 31st August, 2017 containing two grounds of appeal.
In accordance with the rules

of the Court, the parties have filed their respective briefs. The Appellant brief was filed on 17th October, 2018, while the Respondent?s brief was filed 5th February, 2019 and deemed as properly filed and served on 14th May, 2019. The Appellant further filed a reply on the 22nd May, 2019.
The Appellant in his brief formulated two issues for the determination as follows:
4.1 Whether the trial Court was right in convicting and sentencing the Defendant/Appellant to life imprisonment when the element of penetration was not proved.
4.2 Whether the Trial Court was right in convicting and sentencing the Defendant/Appellant to life imprisonment without an option of a fine where the evidence placed before the Court were not properly evaluated which made the judgment of the Court to be perverse.
The Respondent on its own part formulated a sole issue for determination as follows:
?Whether the Trial Court was not right when it held that the Respondent proved the ingredients of Rape beyond reasonable doubt against the Appellant.”

ISSUE 1
Learned counsel for the Appellant submitted that the Respondent having failed to prove

the essential ingredient of the offence of rape, the trial judge was wrong in convicting and sentencing the Appellant to life imprisonment on the said offence.

It is the contention of counsel for the Prosecution to secure a conviction for the offence of rape, the prosecution must prove beyond reasonable doubt all the following ingredients of the offence: –
i. That the accused person had sexual intercourse with the prosecutrix.
ii. That the act of sexual intercourse was done without her consent or was obtained by fraud, force, threat, intimidation, deceit or impersonation.
iii. That the prosecutrix was not the wife of the accused.
iv. That the accused had the mens rea, the intention to have intercourse with the prosecutrix without her consent or that the accused acted reckless not caring whether the prosecutrix consented or not.
v. That there was penetration.
He referred to the case of ADONIKE V THE STATE (2015) ALL FWLR (Pt 772) 1631.

In the instant case, counsel submitted that the Respondent failed to prove penetration. He submitted that in proving the offence of rape against the Appellant, the Respondent through PW1

gave evidence as follows: –
?As I was going, the Defendant gripped me from behind and pushed me on the ground, I started to struggle with him. The Defendant tore my pant and had sexual intercourse with me.”

Counsel referred to the evidence of Pw1 at page 15 to 17 of the record. He submitted that, that piece of evidence without more was insufficient to establish an essential ingredient of the offence of rape. According to counsel, the Respondent ought to have proved penetration. He contended that the statement above does not sufficiently prove penetration. He further submitted that the decision of the trial Court at page 59 of the record supports the fact that penetration was not proved as the trial judge tried to impute same in its judgment.

Furthermore, counsel contended that the fact that the Respondent did not tender any medical evidence or stained clothes with semen was fatal to its case. He submitted that the failure of the Respondent to call the doctor or tender the medical report even after PW1 and PW2 gave evidence that PW1 was taken to the hospital and attended to by one Dr. Ojo raises the presumption of withholding of

evidence. He referred to Section 167(d) of the Evidence Act. He also submitted that the Medical doctor was a vital witness and the failure of the Respondent to call the Dr. Ojo was fatal to its case.
He thus urged this Court to so hold.

Learned counsel for the Respondent on the other hand submitted that the trial Court was right in convicting the Appellant for the offence of rape as the Respondent did prove beyond reasonable doubt the offence of rape against the Appellant. He referred to the evidence of PW1 which was corroborated by the evidence of PW2 and PW3, Exhibit A.

On the issue of penetration, counsel submitted that penetration was proved by the Respondent through the evidence of PW1 when she stated in her evidence at page 16 line 10 -12 as follows:
?The Defendant tore my pant and had sexual intercourse with me

He submitted that the above statement was sufficient to establish penetration.

With regards to the failure of the Respondent to provide medical evidence, counsel submitted that it is not in all cases that medical evidence is required. He further submitted that in cases where rape is not denied

like in the instance case medical evidence is not required. He referred to the case of POPOOLA V THE STATE (2012) ALL FWLR (Pt 617) 763. Counsel also referred to the evidence of Pw1 which according to counsel was not contradicted. He also cited the case of OLUDAMILOLA V STATE (2010) 15 WRN 1.
He thus urged this Court to resolve this issue against the Appellant.

Learned counsel for the Appellant in his reply submitted that the Appellant never admitted that he had intercourse with PW1. Thus, the Respondent?s argument that non calling of a medical doctor is not fatal is misconceived. He also submitted that the case of POPOOLA V THE STATE (SUPRA) cited by the Respondent supports his argument that medical evidence is needed to establish intercourse.

He thus submitted that the failure of the Respondent to produce medical evidence was fatal to the case of the Respondent as the ingredient of penetration was not proved.

He submitted that the reliance of the Respondent on Exhibit A to prove rape would not fly as Exhibit A was tendered in an attempt to prove Count 2 which the Appellant was discharged and acquitted of.
?

ISSUE 2
Learned counsel for the Appellant submitted that the trial Court was wrong in convicting the Appellant to life imprisonment without an option of fine.

It is the contention of counsel that the said decision of the trial Court was based on improper evaluation of evidence before it and thus same ought to be reviewed and set aside. According to counsel the trial Court relied on inconsistent evidence of PW1 as regards penetration, hearsay evidence of Pw2 and Pw3 with respect to the scene of the crime and failed to consider the oral and documentary evidence of the Appellant (Exhibit B). He referred to the cases of OLUKADE V ALADE (1976) 1 ALL LLR (Pt. 1) 67; KIM V STATE (1992) 4 NWLR (Pt. 233) 17; OGUNYE V THE STATE (1999) 4 SCNJ 33; ONOCHIE V ODOGWU (2006) ALL FWLR (Pt.317) 544; JAMES IKHANE V COP (1977) 6 SC 119; KINGSLEY OGHOR V THE STATE (1990) 30 NWLR (Pt 139) 484; AHMED V THE STATE (1999) 5 SCNJ 223.

He submitted that had the trial Court properly considered the evidence before it, it would have come to a different conclusion. He thus urged this Court to exercised its power under Section 15 of the Court of Appeal Act and review the entire evidence and set

aside the judgment of the trial Court.

In the alternative, Counsel submitted that where the Appellant is found guilty of the offence charged, counsel submits that the trial Court was still wrong in not giving an option of fine to the Appellant. According to counsel even though the offence under which the Appellant was charged does not provide for an option of fine, counsel submits that the trial Court under Section 316(1) of the Ekiti State Administration of Criminal Justice Law has the discretionary power to impose fine in lieu of imprisonment. He referred to Section 357 and 358 of the Criminal Code Law, Cap C16, Laws of Ekiti State of Nigeria, 2012. He thus urged this court to review the judgment of the trial court and give an option of fine. He also urged this Court to be lenient when awarding fine to the Appellant giving his special circumstances.

Learned counsel for the Respondent on the other hand submitted that the punishment prescribed under of Section 358 of the Criminal Code Law is mandatory upon conviction of the offence of rape. He also submitted that the trial Court has no discretion to convert the mandatory life imprisonment into an

option of fine. He contended that the trial court only has the discretion to decide whether to add canning or not into the life imprisonment sentence. He relied on the case of LUCKY V THE STATE (2016) LPELR ? 40541 (SC).

He submitted that Section 316(1) of the Administration of Criminal Justice Law (ACJL) cited by the Appellant in support of his argument will not apply in this case. First, the Criminal Code Law of Ekiti State under which the Appellant was tried and convicted is a substantive law while the ACJL is purely procedural.

Secondly, the punishment prescribed under Section 358 of the Criminal Code Law is specific and definite and therefore by virtue of Section 316(5) of the ACJL, the ACJL will not apply.

Counsel further submitted that the evidence of Pw2 and Pw3 are not hearsay evidence. It is the contention of counsel that Pw2 and Pw3 (who are IPO at Police Headquarters and Divisional Police Headquarters Efon Alaaye respectively) gave evidence as to what they personally saw or discovered in the course of their investigation and is therefore admissible. AJIBOYE V THE STATE (1994) 8 NWLR (Pt 364) 587.

He thus urged this Court

not to interfere with the finding of the trial Court and resolve this issue in favour of the Respondent.
The essential ingredient which the prosecution must prove in rape cases is as follows:
1) That the accused had sexual intercourse with the prosecutrix.
2) That the act of sexual intercourse was done without consent or that the consent (if any) was obtained by fraud, force, threat intimidation, deceit or impersonation.
3) That the prosecutrix was not the wife of the accused.
4) That the accused had the 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.
5) That there was penetration. AFOR LUCKY VS THE STATE (2016) LPELR 40541, DAWA VS THE STATE (1980) LPELR 932, AFOLABI VS COP (1961) LPELR 25028, MUSA VS STATE (2018) LPELR 43846, EZIGBO VS STATE (2012) LPELR 7855.

Having set out the ingredients of the offence of Rape I will therefore, look at the evidence led in the trial Court. I will determine whether these ingredients were in fact proved by the prosecution. First and foremost, the learned trial

Judge rejected the so called confessional statement of the Appellant. He held that the Respondent failed to prove the voluntariness of his statement made extra judicial. We are therefore left with the evidence of the witnesses in proof of the case. The prosecutrix accused the Appellant of raping her on the road between the farm and camp. Also that she reported the incident to her brother?s wife. It would be recalled from the testimony of the prosecutrix that she asked the Appellant to take care of her child for her whilst she goes in search of her Room key. She also testified that she left and the Appellant followed her and raped her. The prosecutrix did not say where her child was at the time of the Rape. Did she go with the child or the child was left in the farm unattended?

The prosecutrix also gave in evidence that the Appellant tore her pant and had sexual intercourse with her. She also said she was taken to a hospital 4 days after the Rape. She said she did not sustain any physical injuries. She was also issued with a Medical Report which was never tendered.
?
The Appellant in his evidence is denied having intercourse with the prosecutrix,

PW1. However, the Appellant alleged that there was a misunderstanding between the two because the PW1 was owing the Appellant for work done. The prosecution called only two other witnesses apart from the prosecutrix. Both PW2 and PW3 did not corroborate the Story of the Prosecution in any manner whatsoever.

Coming to the ingredients that the prosecution must prove to ground a conviction of Rape.
The prosecutrix must prove there was Sexual intercourse without consent. The Prosecutrix/Respondent only stated that the Appellant had intercourse with her and nothing more. The Appellant denied this assertion. There was nothing to show or to prove that, the Appellant indeed had Sexual Intercourse with the Respondent. Mere saying so is not enough to prove such allegation. Apart from the torn pant which evidence is neither here or there, the Prosecutrix/Respondent only reported to the Police Four days after the incident.
The evidence of the torn pant is not cogent as the incident was only reported to the police 4 days after. The Respondent did not show the torn pant to her brother?s wife she reported to soon after the incident.
?It could be

recalled that the Respondent herself stated that she had no physical injuries from the encounter. There was no medical Report to State the situation of the Rape. There was nowhere in the Respondent?s testimony she stated categorically that the intercourse if any was without her consent. For Sexual Intercourse to be termed as Rape, there must be a lack of consent by the Victim. See MUSA V THE STATE (2013) LPELR 19932, OGUNBAYO VS STATE (2007) AND LPELR 2323, IDI VS STATE (2017).
The prosecution did not prove that there was penetration of any sort no matter how slight. The Respondent only stated that the Appellant had Sexual Intercourse with her. She never alluded to the fact that the Appellant Penetrated her. There was no evidence direct or indirect of the penetration of the male organ of the Appellant into the organ of the Respondent. SUNDAY JEGEDE VS THE STATE (2001) LPELR 1603 where Belgore JSC held:
?The offence of Rape is the unlawful carnal Knowledge of a woman or Girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation or any kind or by fear of harm or by means of

false and fraudulent misrepresentation as to the nature of the act or in the case of a married woman, by personating her husband. The Rape is only committed in circumstances set only above with clear evidence of penetration and who was Responsible for it.”
It therefore, means that apart from the prosecutrix proving lack of consent, the fact of penetration must also be proved.
In the present case, the Respondent never said that there was penetration of any sort. The essential and most important ingredient of the offence of Rape is penetration and if penetration is not proved, the prosecution cannot be said to have proved its case beyond reasonable doubt. Penetration however, slight is sufficient and it is not necessary to prove an injury or the rupture of the hymen to constitute the crime of Rape.” See IKO VS STATE (2001) 7 SCWJ PG 391, OKOYOMON VS STATE (1973) 1 SC PAGE 21. SEE ALSO THE STATE VS MASIGA (2017) LPELR 43474.
It is not enough that the prosecution/Respondent said that the Appellant had Sexual Intercourse with her without her consent but the fact of penetrations must be proved beyond reasonable doubt.
?These are the

issues that plagued the prosecution in proof of Rape. This offence cannot be proved without the basic ingredient. I must say that the prosecution failed to prove penetration from the testimony of the Respondent. The prosecution therefore failed to prove its case against the Appellant beyond Reasonable doubt.
This Appeal is meritorious. It is allowed. The Judgment of the lower Court is hereby set aside. The accused is hereby discharged and acquitted.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance the judgment just delivered by my learned brother UZO I. NDUKWE-ANYANWU, JCA.

He has adequately dealt with all the issues raised this appeal. I agree with his reasoning and conclusions reached therein. I adopt the judgment as mine and I also allow the appeal and set aside the judgment of the lower Court.
I abide by the orders in the lead judgment.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read in draft the lead judgment delivered by my learned brother, Uzo I. Ndkwe-Anyanwu, JCA.
?I agree entirely with the reasoning and conclusions reached

therein. In consequence, I allow the appeal and abide by the orders made therein.

Appearances:

J.O. Olajide, Esq.For Appellant(s)

Olawale Adekola Fapohunda, Esq. (The Hon. Attorney General, Ekiti State) with him, Gbemiga Adaramola, Esq. (DPP, Ekiti State), O.F. Ajumobi, Esq. (Principal Legal Officer), Moshood Abiola, Esq. (Legal Officer)For Respondent(s)

Appearances

J.O. Olajide, Esq.For Appellant

AND