JOHN v. STATE
(2020)LCN/14437(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, July 02, 2020
CA/A/752C/2018
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Emmanuel Akomaye Agim Justice of the Court of Appeal
Between
UGBEDE JOHN APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
BURDEN OF PROOF IN CRIMINAL TRIAL
In criminal trial, it is the law that the burden of proof is proof beyond reasonable doubt under Section 135. The onus is on the prosecution who is making the allegation to prove or establish the guilt of the accused beyond reasonable doubt and this is achievable by making sure that all the necessary and essential ingredients of the charge is proved by evidence. The underlying factor is the fact that everyone accused of committing an offence is presumed innocent until he is proved guilty. See State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196, Esangbedo v. State (1989) LPELR – 1163 (SC). Then in the case of Michael v. State (2008) LPELR – 1874 (SC), the Supreme Court per Mukhtar, JSC, (as he then was) held:
“Beyond reasonable doubt has in a plethora of authorities been interpreted to be not beyond all shadow of doubt. In the case of Basil Akalezi v. State (1993) 2 NWLR Part 273 page 1, Ogwuegbu, JSC, described the concept of proof beyond reasonable doubt thus: “Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. In the case of Miller v. Minister of Pensions (1947) 2 All E.R 372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence; “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt.” PER ADAH, J.C.A.
DEFINITION OF THE OFFENCE OF RAPE
The offence of rape for which the appellant was convicted is well defined in our statutes and case laws. In the case of Isa v. Kano State (2016) LPELR-40011 (SC), the Supreme Court per Ogunbiyi, JSC, held as follows:
“The act of rape is by nature unlawful because the concept involves an aggressive carnal knowledge of a female without her consent. Consent in this context must be devoid of any form of external influence. A child who is under age is not however capable of giving consent. Rape is by nature grave, devastating, traumatic; it also reduces the totality of the victim’s personality. Several definitions of consent as a common feature. A number of such definitions include those arrived at by this Court in the case of Posu v. State (supra) at page 414 where Fabiyi (JSC) held as: “An unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly and against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent”. Adekeye (JSC) also at page 416 sees rape in legal parlance as: “an 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 threat or intimidation of any kind or by fear or harm, or by means of false and fraudulent representation as to the nature of the act or in the case of a married woman by personating her husband”. In summary therefore, rape can be interpreted as an unlawful carnal knowledge or non- consensual sex; that is, penetration without consent.”
The prime and essential ingredients of the offence of rape are:
“1. That the accused had sexual intercourse with the prosecutrix.
2. That the act of sexual intercourse was done without the 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 means 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. See Posu & Anor. v. The State.”PER ADAH, J.C.A.
WHETHER OR NOT EVIDENCE OF THE PROSECUTION IN RAPE CASES MUST BE CORROBORATED
There is no law or statutory provision that in rape cases, evidence of the prosecutrix must be corroborated. However, it is a rule of prudence and the settled course of practice by the Court to seek for corroboration in rape cases. See Posu v. The State (2011) 3 NWLR (Pt. 1234) 393, Okoyomon v. The State (1973) NSCC, Isa v. The State (2016) LPELR- 40011 (SC), Ezigbo v. The State (2012) 16 NWLR (Pt. 1326) 318, Sambo v. The State (1993) 6 NWLR (Pt. 300) 399.” PER ADAH, J.C.A.
INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
The next offence for which the appellant was convicted is the offence of robbery. This offence as charged is under Section 298 (c) of the Penal Code. This Section provides as follows:
298. Whoever commits robbery shall be punished –
(a) with imprisonment for a terms which may extend to ten years and shall also be liable to fine; and
(b) if the robbery is committed –
(i) between sunset and sunrise on the highway; or
(ii) between sunset and sunrise from a person sleeping or having lain down to sleep in the open air, with imprisonment for a term which may extend to fourteen years and shall also be liable to fine; and
(c) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument to imprisonment for life or any less terms and shall be liable to fine.
This offence is defined under Section 296 of the Penal Code as follows:
296. Robbery defined.
(1) in all robbery there is either theft or extortion.
(2) Theft is robbery if, in order to commit the theft or in committing the theft or in carrying away or attempting to carry away property obtained by the theft, the offender for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint.
(3) Extortion is robbery, if the offender at the time of committing the extortion is in the presence of the person put on fear and commits the extortion by putting that person in fear of instant death, of instant hurt or of wrongful restraint to that person or to some other person and by so putting in fear induces the person so put in fear then and there to deliver up the thing extorted.
Robbery as defined in this law is an expanded theft or extortion. This is practicable if the offender in his determination to commit theft voluntarily causes hurt or put the victim in fear of instant hurt or death. In the case of Opeyemi v. The State (2019) LPELR – 48764 (SC), the Supreme Court per Eko, JSC, in defining robbery said:
“Under Section 298 of the Penal Code, the offence of armed Robbery is comprised of the following elements: (1) Theft by the accused; (2) That the accused person caused some persons hurt or wrongful restraint; (3) That the accused did the acts so mentioned in committing the theft or in order to commit the theft and also to carry away the property obtained by the theft; (4) That the accused did the acts listed above voluntarily and; (5) That the accused person was armed with dangerous weapons.” See Daniel Stephen v. State (2019) LPELR-48259 (CA). PER ADAH, J.C.A.
DEFINITION OF THE OFFENCE OF “CONSPIRACY”
Conspiracy in law is defined in Section 96 of the Penal Code as when two or more persons agree to do or cause to be done an illegal act or by illegal means. This therefore requires an agreement tacitly or overtly by two or more persons to act in convert to accomplish an illegal act. See State v. Salawu (2011) LPELR – 8252 (SC). Fabiyi, JSC, in the case of Nguma v. Ag. Imo State (2014) LPELR – 22252 (SC) held that conspiracy is a combination or confederacy between two or more persons formed for the purpose of committing by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself but becomes unlawful when done by the concerted action of the conspirators or for the purpose of using criminal or unlawful means to the commission of an act which is not in itself unlawful. In the instant case, the appellant and others agreed to rape and rob the victim and they carried out their disdainful acts. These acts are unlawful acts. The trial Court after evaluating the evidence before it found the offence of criminal conspiracy proved and convicted the appellant. The evidence before the Court showed that the appellant and some others agreed to go to the road they knew the victim will pass and waylaid the victim. The victim was raped and her NOKIA phone was stolen from her. The evidence before the trial Court was direct and was found credible by the trial Court before convicting the appellant and another for conspiracy. The decision of the trial Court in this case cannot be void as the prosecution truly proved the case against the appellant beyond reasonable doubt as required by the law. PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Kogi State High Court sitting in Ankpa in Charge No: AHC/10C/2015 wherein the appellant Ugbede John, was convicted and sentenced for the offences of conspiracy, rape and armed robbery and sentenced to a term of one year, and five years imprisonment on 08/11/2016. Sentences are to run concurrently.
Aggrieved with this conviction and sentence, the appellant appealed to this Court. The charge against the appellant before the trial Court reads as follows:
1ST HEAD OF CHARGE
That you (1) Ojonugwa Mathew, (2) Ugbede John and others presently at large on or about the 22nd day of May, 2015 at Igah Ikeje – Okpo in Olamaboro Local Government Area of Kogi State Judicial Division agreed to do an illegal act to wit; to rob and rape one Florence Adebayo and that the same acts were done in pursuance of the agreement and you thereby committed an offence punishable under Section 97(1) of the Penal Code.
2ND HEAD OF CHARGE
That you (1) Ojonugwa Mathew, (2) Ugbede John and others presently at large on or about the 22nd day of May, 2015 at Igah Ikeje
1
– Okpo in Olamaboro Local Government Area within the Kogi State Judicial Division committed rape on Florence Adebayo and thereby committed an offence punishable under Section 283 of the Penal Code Law.
3RD HEAD OF CHARGE
That you (1) Ojonugwa Mathew, (2) Ugbede John and others presently at large on or about the 22nd day of May, 2015 at Igah Ikeje – Okpo in Olamaboro Local Government Area within the Kogi State Judicial Division robbed Florence Adebayo of her Nokia handset while armed with broken bottle and thereby committed an offence punishable under Section 298(c) of the Penal Code.
The appellant pleaded not guilty to the charge. The Prosecution then called three witnesses and closed its case while the defence called four witnesses. The trial Court convicted the appellant and sentenced him along with the co-accused. The appellant filed this appeal on 7th December, 2016. The record of appeal was transmitted on 02/08/2018. The appellant filed his brief on 28/01/2019 and it was deemed properly filed and served on 06/04/2020. The respondent’s brief was filed on 06/04/2020 and deemed that same date by Court to be properly filed and served.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
2
The appellant proposed one issue for determination. This issue is framed as follows:
Whether the Prosecution (Respondent) proved beyond all reasonable doubt the offences of conspiracy, rape and armed robbery against the appellant in view of the evidence led at the trial Court.
The respondent, in its brief of argument adopted the lone issue framed by the appellant for consideration except for the addition of the word ‘overwhelming’ before the word evidence. The parties are therefore, not in doubt about the issue that can resolve their controversies in this appeal. The word ‘overwhelming’ added in the sole issue framed by the respondent is somehow a negation of the concept and burden of proof in this appeal. The word ‘overwhelming’ added before the word ‘evidence’ is suggestive of the weight of evidence and the probabilities which is only available in civil matters. In criminal matters, the burden of proof is that of proof beyond reasonable doubt. The issue as framed by the appellant is therefore, appropriate and it is set down for consideration.
3
Issue for Determination:
The issue for determination is whether the prosecution proved the case beyond reasonable doubt at the trial Court.
The learned counsel for the appellant in his brief canvassed that the prosecution did not prove beyond reasonable doubt that the appellant committed the offence.
He canvassed that in a criminal trial, the onus is on the prosecution to prove the case against the accused person (appellant) beyond all reasonable doubt; Section 135 of the Evidence Act, Idemudia v. State (1999) 7 NWLR (Pt. 610) 202 at 215, Esangbedo v. State (1989) 4 NWLR (Pt. 113) 57, Usman v. State (2013) LPELR – 20586 (SC), Galadima v. State (2013) All FWLR (Pt. 667) 630 SC and Dongtoe v. Civil Service Commission, Plateau State & Ors. (2001) LPELR-959 (SC). That an accused person is presumed innocent until proven guilty: Section 36(5) of the Constitution of the Federal Republic of Nigeria; Abokokuyanro v. State (2016) All FWLR (8439) 807 SC, Chinedu Eze v. The State (2016) All FWLR (Pt. 823) 1911 CA. As stated in C.O.P v. Amuta (2017) All FWLR (Pt. 879) 760 SC pp 24 – 25 Paras A – D. He submitted further that the burden of proof beyond all reasonable doubt placed on the prosecution
4
is static and does not shift. That it is only satisfied when the prosecution on the strength of the evidence led can prove the main ingredients of the offence with which the accused is charged. He referred to Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 523, Adekoya v. State (2017) All FWLR (Pt. 879) 693 SC and Solola v. The State (2005) 5 SC (Pt. 1) 35. The learned counsel for the appellant said also that the fulcrum of the prosecution’s case is rested on the evidence of the prosecution who claimed that on her way to church night vigil, with Blessing John, Glory John, Esther Adejoh and Sumaila she was way laid by John Ugbede, Matthew Ojonugwa and a third person who forcibly took her away on a motor-cycle into the bush where she was repeatedly raped. Thereafter, her brothers apprehended the appellant’s co-accused, Matthew Ojonugwa, who brought them to where she was raped in the bush. And among those brought by Ojonugwa to where she was raped in the bush are Esther Adejoh, Blessing John, Gloria John and Sumaila.
The appellant’s case is that he was arrested by some persons on his way from his mother’s village where he had gone to help her farm.
5
He was on a commercial motorcycle driven by DW5 when he was waylaid, dragged down and mobbed by some persons who took him to a place where they threatened to kill him and thereafter he was taken to the police station where he was accused of conspiring with Matthew Ojonugwa and another to Abduct, Rape and rob PW2 of her black Nokia handset and N1000 (One Thousand Naira). The appellant being an illiterate, made a statement to the police, said to have been recorded by a police officer who claimed to have read the said statement to him before he endorsed it. That the appellant in his evidence has maintained that Exhibit C is not a representation of the statement he made to the police.
The learned counsel surmised that the prosecution is bound to prove the main ingredients of the offence for which an accused person is charged as this is what proof beyond all reasonable doubt entails; In Sebastian S. Yongo & Anor. v. COP (1992) 8 NWLR (Pt. 257) 36 at 50. The learned counsel further raised the issue of failure to call vital and material witnesses such as the members of the vigilante group who arrested the appellant and that the motorcycle which conveyed the
6
PW2 to the bush and the black Nokia phone were not tendered.
On the issue of retraction of the appellant from a confessional statement, the learned counsel submitted that the appellant retracted his statement to the Police. That a retraction from a confessional statement does not affect its admissibility but goes to the weight to be attached to the confessional statement considering other evidence led at the trial. He relied on the case of Stephen v. State (1986) 5 NWLR (Pt. 46) p. 978, where it was held that the Court should run the confessional statement through the following tests:
1. Is there anything outside the confession to show that it is true.
2. Is it corroborated.
3. Are there relevant statements of facts made in it of facts true as can be tested.
4. Was the prisoner one who has the opportunity of committing the crime.
5. Is this confession probable.
6. Is it consistent with other facts which have been ascertained and have been proved.
He urged the Court to hold that the appeal has merit and should be allowed.
The learned counsel for the respondent in his own argument canvased that the Prosecution had led
7
credible evidence through its witnesses along with the confessional statements of the appellants in the discharge of the sacred duty upon the strengths of which the trial Court convicted the appellants.
The appellant, John Ugbede, was charged with Conspiracy to Rape, and to Rob Florence Adebayo. The Prosecution’s case is that John Ugbede, Ojonugwa Mathew and one other at large conspired to Rape and rob Florence Adebayo and indeed raped and robbed her of her telephone handset, and N1000. The Court adopted the proper approach to proving conspiracy.
He contended that in discharging the burden of proof, the Prosecution called three witnesses which include:
1. The Investigation Police Officer, named Simon Ichaba
2. The Prosecutrix
3. The Medical Doctor that examined the victim of rape.
That the Prosecution also tendered Exhibits A – D which comprised of the confessional statements of the accused persons, and the medical report respectively. That from the testimonies of the accused persons, as contained in Evidence P2 and P3, it is evident that they acted in concert and had an agreement before setting out to rape, and rob
8
the Prosecutrix. He relied on the case of Busari v. The State (2015) 6 NWLR (pt. 1452) 343 at 367 Paras D – E where the Supreme Court held as follows:
“Conspiracy is an agreement of two or more persons to do an act which is an offence. Evidence of direct plot between the conspirators is hardly capable of proof. The bottom line of the offence and meeting of the minds of the conspirators to commit an offence and meeting of minds need not be physical. Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy.”
That in the instant case, the appellant confessed to rape and robbery of the Prosecutrix along with one Ojonugwa Mathew. See pages 8-13 of the Record of Proceedings. That this clearly showed that there was conspiracy between the appellant and his co-accused to commit the offenses of rape and armed robbery and that the appellant participated in committing the offence of rape and armed robbery. That the lower Court was right in holding and convicting the accused persons for conspiracy particularly where it was very obvious. That in proving the offence of rape, the
9
Prosecution must show by credible evidence and beyond reasonable doubt that the accused person had sexual intercourse with a woman who is not his wife, in any of the circumstances held in the case of Mamuda v. State (2019) 5 NWLR (Pt. 1664), Pg. 128 at 141, Para E – G., as follows;
“(a) against her will;
(b) without her consent;
(c) without her consent, when her consent has been obtained by putting her in fear of death or of hurt;
(d) with her consent, when the man knows that he is not her husband and that consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(e) with or without her consent, when she is under fourteen years of age or of unsound mind.”
He submitted that on the strength of the confessional statement of the appellant and his co-accused, the testimony of the Prosecutrix and the Medical reports tendered by PW3, the appellant had sexual intercourse with the Prosecutrix who isn’t his wife against her will without her consent putting her under fear of hurt and thereby raped her. The trial Court was therefore right when it held that
10
the appellant committed the offence of rape and sentenced him to five (5) years imprisonment.
The appellant made heavy weather on the need to produce a host of witnesses which in his view would corroborate the Prosecutrix claim of rape against the appellant on the one hand. On the other hand, he admitted that the Prosecution was not bound to produce every witness in the quest to prove its case. It is trite that the Prosecution is not bound to produce a host of witnesses/evidence, it must produce only material witnesses and evidence to prove its case. That the law impose no obligation on the prosecution to call a host of witnesses to prove its case. All it needs to do is to call enough material witnesses to prove its case and in so doing, it has discretion in the matter. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. He relied on the cases of Olayinka v. State (2007) 9 NWLR (Pt. 1040) Pg. 561 (SC), Imhanria v. Nig. Army 1 (2007) 14 NWLR (Pt. 1053) Pg. 76, Per Ndukwe-Anyanwu, JCA, (Pg. 20-21) Paras C – A. That in the instant case, the prosecution did not fail to invite the most vital witnesses to prove its
11
case as failure to do so would have amounted to a presumption detrimental to its case. He opined that a vital witness is a witness whose evidence is material and fundamental, in that it determines the case one way or the other and that the trial Court was right to take into cognizance the vital and fundamental nature of the prosecution’s evidence.
The learned counsel for the respondent submitted that the requisite burden of proof was fully discharged by the prosecution at the trial Court. That there was overwhelming evidence against the appellant that he participated in the robbery of the victim. He leaned on the evidence of PW1 and PW2 in the proof of the offence of armed robbery punishable under Section 298 of the Penal Code.
He therefore urged the Court to dismiss the appeal and uphold the decision of the trial Court.
In criminal trial, it is the law that the burden of proof is proof beyond reasonable doubt under Section 135. The onus is on the prosecution who is making the allegation to prove or establish the guilt of the accused beyond reasonable doubt and this is achievable by making sure that all the necessary and essential
12
ingredients of the charge is proved by evidence. The underlying factor is the fact that everyone accused of committing an offence is presumed innocent until he is proved guilty. See State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196, Esangbedo v. State (1989) LPELR – 1163 (SC). Then in the case of Michael v. State (2008) LPELR – 1874 (SC), the Supreme Court per Mukhtar, JSC, (as he then was) held:
“Beyond reasonable doubt has in a plethora of authorities been interpreted to be not beyond all shadow of doubt. In the case of Basil Akalezi v. State (1993) 2 NWLR Part 273 page 1, Ogwuegbu, JSC, described the concept of proof beyond reasonable doubt thus: “Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. In the case of Miller v. Minister of Pensions (1947) 2 All E.R 372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence; “of course it is possible,
13
but not in the least probable”, the case is proved beyond reasonable doubt.”
The allegation of the appellant in the instant case is that the prosecution did not prove beyond reasonable doubt that the appellant conspired.
The Prosecution before the trial Court called witnesses. The extra judicial statement of the appellant was tendered in Court without objection. The appellant in his evidence before the Court tried to navigate from his evidence Exhibit P3 but did not raise any allegation against the voluntariness of the statement he earlier made to the Police. The victim of the offence of rape knew the appellant from the evidence on record. They live in the same community. They are even related. There was therefore no case of mistaken identity. The victim who testified as the PW2 alleged that she was raped by the appellant and others in turn. The allegation of rape was confirmed by the medical report on record.
The learned trial judge found in his judgment as follows:
“PW2 maintained that she was forced to have sexual intercourse with the accused persons. There is evidence that bottles were broken. She stated further that
14
the accused persons removed her clothings and had sexual intercourse with her in turns. She was emphatic that each accused penetrated her virginal with his penis. Her evidence is roundly corroborated by the evidence of PW3, a medical Doctor and Exhibit P.4, the report of his examination of the victim.
PW3 was the medical officer who examined PW2. He also authored Exhibit P.4. He was emphatic in stating that the virgina of PW2 was penetrated. According to him, the virginal wall was reddened and he observed whitish discharge around the virginal wall. I am satisfied that the prosecution has proved penetration beyond reasonable doubt.
The second ingredient is whether PW2 consented to the sexual intercourse. The evidence of PW2 is that the accused persons on sighting her and her siblings smashed a bottle or bottles on the highway. Of-course, the only purpose of this act was to create fear. “By the provision of S. 282 of the Penal Code, consent to sexual intercourse is invalidated where such consent had been given based on fear created in the prosecutrix. It is clear from the evidence led that the prosecutrix did not willingly consent to the sexual
15
intercourse with the accused persons.”
The offence of rape for which the appellant was convicted is well defined in our statutes and case laws. In the case of Isa v. Kano State (2016) LPELR-40011 (SC), the Supreme Court per Ogunbiyi, JSC, held as follows:
“The act of rape is by nature unlawful because the concept involves an aggressive carnal knowledge of a female without her consent. Consent in this context must be devoid of any form of external influence. A child who is under age is not however capable of giving consent. Rape is by nature grave, devastating, traumatic; it also reduces the totality of the victim’s personality. Several definitions of consent as a common feature. A number of such definitions include those arrived at by this Court in the case of Posu v. State (supra) at page 414 where Fabiyi (JSC) held as: “An unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly and against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent”. Adekeye (JSC) also at page 416 sees rape in legal
16
parlance as: “an 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 threat or intimidation of any kind or by fear or harm, or by means of false and fraudulent representation as to the nature of the act or in the case of a married woman by personating her husband”. In summary therefore, rape can be interpreted as an unlawful carnal knowledge or non- consensual sex; that is, penetration without consent.”
The prime and essential ingredients of the offence of rape are:
“1. That the accused had sexual intercourse with the prosecutrix.
2. That the act of sexual intercourse was done without the 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 means 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. See Posu & Anor. v. The State.”
17
From the facts of this case, the Prosecutrix who was the PW2, was forced into having sexual intercourse without her consent with the appellant and others. The appellant from the evidence before the Court had the mens rea as it was intentionally done. Apart from the evidence of the Prosecutrix, other who testified like the PW3 corroborated the testimony of the Prosecutrix. Every ingredient of the offence was clearly established. The statement of the appellant which he tried to resile from remained intact and the trial Court was right to accept it. In the case of Mohammed v. Kano State (2018) LPELR- 43913 (SC), the Supreme Court held that:
“In a rape case, corroboration means evidence which confirms the evidence of the prosecutrix. It is that evidence which tends to show that the story of the victim, the prosecutrix, is true and that it is the accused person that committed the crime. Such evidence need not be direct as this may not be possible as rape is not committed in the open. It is enough if it corroborates the said evidence in some material particular to the charge in question. However, where the child is a minor of some
18
discernible age, her sworn evidence need no further corroboration. There is no law or statutory provision that in rape cases, evidence of the prosecutrix must be corroborated. However, it is a rule of prudence and the settled course of practice by the Court to seek for corroboration in rape cases. See Posu v. The State (2011) 3 NWLR (Pt. 1234) 393, Okoyomon v. The State (1973) NSCC, Isa v. The State (2016) LPELR- 40011 (SC), Ezigbo v. The State (2012) 16 NWLR (Pt. 1326) 318, Sambo v. The State (1993) 6 NWLR (Pt. 300) 399.”
The evidence before the Court in the instant case showed unequivocally that the appellant and others raped the PW2 as found by the trial Court. This charge of rape was proved beyond reasonable doubt. The judgment of the lower Court properly evaluated the evidence and the assessment cannot be assailed in this case.
The next offence for which the appellant was convicted is the offence of robbery. This offence as charged is under Section 298 (c) of the Penal Code. This Section provides as follows:
298. Whoever commits robbery shall be punished –
(a) with imprisonment for a terms which may extend to ten years and shall
19
also be liable to fine; and
(b) if the robbery is committed –
(i) between sunset and sunrise on the highway; or
(ii) between sunset and sunrise from a person sleeping or having lain down to sleep in the open air, with imprisonment for a term which may extend to fourteen years and shall also be liable to fine; and
(c) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument to imprisonment for life or any less terms and shall be liable to fine.
This offence is defined under Section 296 of the Penal Code as follows:
296. Robbery defined.
(1) in all robbery there is either theft or extortion.
(2) Theft is robbery if, in order to commit the theft or in committing the theft or in carrying away or attempting to carry away property obtained by the theft, the offender for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint.
(3) Extortion is robbery, if the offender at the time of committing the extortion is in the presence of the person put on fear and
20
commits the extortion by putting that person in fear of instant death, of instant hurt or of wrongful restraint to that person or to some other person and by so putting in fear induces the person so put in fear then and there to deliver up the thing extorted.
Robbery as defined in this law is an expanded theft or extortion. This is practicable if the offender in his determination to commit theft voluntarily causes hurt or put the victim in fear of instant hurt or death. In the case of Opeyemi v. The State (2019) LPELR – 48764 (SC), the Supreme Court per Eko, JSC, in defining robbery said:
“Under Section 298 of the Penal Code, the offence of armed Robbery is comprised of the following elements: (1) Theft by the accused; (2) That the accused person caused some persons hurt or wrongful restraint; (3) That the accused did the acts so mentioned in committing the theft or in order to commit the theft and also to carry away the property obtained by the theft; (4) That the accused did the acts listed above voluntarily and; (5) That the accused person was armed with dangerous weapons.” See Daniel Stephen v. State (2019) LPELR-48259 (CA).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
21
In the instant case, the appellant and another was established to have robbed one Florence Adebayo of her NOKIA handset while armed with broken bottle. The witness for the prosecution confirmed the allegation in their testimonies that the appellant with others broke a bottle on the road and carried the broken bottle to rob the victim. The Nokia handset (phone) was stolen from her by the accused and others. The evidence of the prosecution witnesses was not in any form controverted by the appellant at the trial Court, it follows therefore that the findings of the trial Court that the accused robbed the victim cannot be said to be perverse. It was in line with the credible evidence before the trial Court. From the foregoing therefore, the charge of robbery as in count three of the charge was clearly proved beyond reasonable doubt against the appellant. The trial Court was therefore right and proper to convict and accordingly sentenced the appellant.
The last offence in the instant case is that of conspiracy. Conspiracy in law is defined in Section 96 of the Penal Code as when two or more persons agree to do or cause to be done an illegal act or by illegal
22
means. This therefore requires an agreement tacitly or overtly by two or more persons to act in convert to accomplish an illegal act. See State v. Salawu (2011) LPELR – 8252 (SC). Fabiyi, JSC, in the case of Nguma v. Ag. Imo State (2014) LPELR – 22252 (SC) held that conspiracy is a combination or confederacy between two or more persons formed for the purpose of committing by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself but becomes unlawful when done by the concerted action of the conspirators or for the purpose of using criminal or unlawful means to the commission of an act which is not in itself unlawful. In the instant case, the appellant and others agreed to rape and rob the victim and they carried out their disdainful acts. These acts are unlawful acts. The trial Court after evaluating the evidence before it found the offence of criminal conspiracy proved and convicted the appellant. The evidence before the Court showed that the appellant and some others agreed to go to the road they knew the victim will pass and waylaid the victim. The victim was raped and her NOKIA phone was stolen from her. The evidence
23
before the trial Court was direct and was found credible by the trial Court before convicting the appellant and another for conspiracy. The decision of the trial Court in this case cannot be void as the prosecution truly proved the case against the appellant beyond reasonable doubt as required by the law.
From the foregoing therefore, this appeal is lacking in merit. The appeal is hereby dismissed. The judgment of the trial Court inclusive of the conviction and sentence of the appellant is hereby affirmed.
PETER OLABISI IGE, J.C.A.: I agree.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice Stephen Jonah Adah, JCA. I agree with the reasoning, conclusions and orders therein.
24
Appearances:
Eli Uwaifoh Esq., with Kenechukwu Maduka Esq. For Appellant(s)
T.B.M. Maiyaki Esq., with M.B. Gana Esq. For Respondent(s)
