NA?AN UPAHAR & ANOR V. THE STATE(2002)

NA?AN UPAHAR & ANOR V. THE STATE

(2002)LCN/1119(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of March, 2002

 

CA/J/177C/99

 

JUSTICES

IBRAHIM TANKO MUHAMMAD   Justice of The Court of Appeal of Nigeria

 

OLUDADE OLADAPO OBADINA   Justice of The Court of Appeal of Nigeria

 

IFEYINWA CECILIA NZEAKO   Justice of The Court of Appeal of Nigeria

 

Between

 

  1. NA?AN UPAHAR
  2. AONDONGU ANNYAREV Appellant(s)

AND THE STATE Respondent(s)

 

OBADINA, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Benue State sitting in Makurdi, presided over by Honourable Justice T.U.F Puusu. The appellants were charged with the offences of conspiracy to commit rape, rape and abatement of rape, punishable under sections 97, 85 and 283 of the Penal Code respectively.

The charge against the appellants reads as follows:

“FIRST COUNT

That you Na’an Upahar ‘M’ and Aondongu Annyarev ‘M’ on or about the 2nd day of August, 1994 at Mbanyom Village in Gwer Local Government Area within jurisdiction agreed to do an illegal act, to wit commit rape on one Miss Ushitile Tyoshar ‘F’ and the same act was done in pursuance of the agreement and you thereby committed an offence punishable under section 97 of the Penal Code.

SECOND COUNT

That you Na’an Upahar ‘M’ on or about the 2nd day of August, 1994 at Mbanyom in Gwer Local Government Area within jurisdiction committed rape on one Miss Ushitile Tyoshar (then 12 year old) by having sexual intercourse with her against her will and without her consent and you thereby committed an offence punishable under section 283 of the Penal Code.

THIRD COUNT

That you Aondongu Annyarev ‘M’ on or about the 2nd day of August, 1994 at Mbayom in Gwer Local Government Area within jurisdiction abetted the commission of the offence of rape on one Miss Ushitile Tyoshar ‘F’ by Na’an Upahar by doing an act to wit:- you held her legs apart and tore her pant to enable Na’ an Upahar penetrate into her and the act was committed in consequences of your abatement and that you have thereby committed an offence punishable under section 85 of the Penal Code read together with section 283 of the Penal Code”.

To prove the charge, the prosecution called four (4) witnesses and tendered four (4) exhibits. Both the appellants testified for themselves and called two (2) witnesses, namely:- their respective fathers.

The case for the prosecution is that on the 2nd day of August, 1994, the prosecutrix (Ushitile) who testified as PW3 had gone to the village stream to fetch water and was on her way home when the appellants met her. They forcibly removed the water she was carrying from her head, pushed her into the bush while the 1st appellant removed his shorts and forcibly had sexual intercourse with her, while the 2nd appellant held her legs apart to allow the 1st appellant’s penis into her vagina. To stifle her cries and protests, the appellants put sand in her mouth.

This was the scenario met by PW2 (Matthew Tyosha) who was going to his farm at Gbache Mbayoh in Gwer Local Government Area of Benue State when he came to the cross-road and heard someone crying in the bush. PW2 ventured into the bush in the direction of the cries and to his dismay, he met the 1st appellant on top of his sister, PW3, having sexual intercourse with her with the assistance of the 2nd appellant who was holding the legs of the prosecutrix i.e. PW3. On seeing PW2, the appellants took to their heels. But luck ran out of them when PW2 caught the 1st appellant who could not run fast because of his shorts that had been pulled down in the act.

PW2 then took the 1st appellant to his (1st appellant’s) father i.e, DW2 (Matthew Na’an) to lodge a report of the gory act. DW3 who apparently, was angered by his son’s (1st appellant’s) admission of the offence took a twig and beat up the 1st appellant. PW2 later took 1st appellant with the prosecutrix (i.e. PW3) to the house of village head called Chief Kwembe Nyamibo, where the 2nd appellant joined them. The appellants who did not deny the allegations before the village head were subsequently taken to the Police Station. The case of the appellants on the other hand is that on the 2nd day of August, 1994, they went to the village stream to take their bath and on returning, they met the prosecutrix, i.e PW3, who was carrying water on her head at the cross road and walking together, they discussed school matters, The appellants maintained that PW2 came to meet them discussing. They, however, admitted running away when a scuffle ensued between them and PW2, It was the appellants’ case further that they were only being made victims of circumstance as there was a long standing land dispute between the family of the prosecutrix and theirs. Besides, the appellants maintained further that they were under age at the time of the commission of the offences. At the close of the case for defence, counsel to the parties, by the leave of the court presented written addresses to the court. In his considered judgment, the learned trial Judge found the case proved and found the appellants guilty as charged.

Aggrieved by the judgment, the appellants have appealed to this court on seven (7) grounds of appeal. At the hearing of the appeal, the learned counsel for the appellants applied to withdraw ground three (3) of the grounds of appeal. The application was granted and ground 3 was accordingly struck out.

From the remaining six (6) grounds, the appellants formulated three (3) issues for determination as follows:-

“(1) Whether there was proper evidence before the trial court to justify the conviction of 1st appellant for the offence of rape?

(2) Whether in the absence of proof of rape against 1st appellant, there was proper evidence for the conviction of 2nd appellant for abatement of rape?

(3) Whether the court(sic) of conspiracy was properly proved by inference from the conduct of the appellants, rather than from independent evidence in the particular circumstances of the case?.”

Based on the six grounds of appeal filed by the appellants, the respondent distilled only one issue for determination; namely”

Whether the prosecution proved its case beyond reasonable doubt as required by law?”.

A close look at the three (3) issues formulated by the appellants as well as the lone issue raised by the respondent seems to show that all the three (3) issues by the appellants taken together and the only one issue raised by the respondent are similar and the same in substance. They all point to the main contention of the appellants that in view of the legal authorities on the offence of rape and the facts in the present case on appeal, the prosecution has wholly failed to prove the charge against the appellants. However, for whatever it is worth, I will treat the issues in the order formulated by the appellants.

ISSUE NO. 1

“Whether there was proper evidence before the trial court to justify the conviction of the 1st appellant for the offence of rape”.

In arguing the issue, the learned counsel for the appellants referred to section 282 (1) of the Penal Code and submitted that rape is committed when a man has sexual intercourse with a woman against her will and without her consent or with her consent when the consent has been obtained by putting her in fear of death or of hurt or with her consent when the consent was obtained by fraud. He further argued that in a prosecution for rape, it is the duty of the prosecution to prove that the accused has sexual intercourse with the prosecutrix, such that the act of sexual intercourse was unlawful,  and that in giving evidence of the intercourse, the prosecution must prove complete penetration. He referred to the cases of Jos Native Authority v. Allah Na Gani (1968) NMLR 8; or (1967) NNLR 107;  R v. Marsden (1891) 2 QBD 149; The State v. Ojo (1980) 2 NCR 319 at 395.

He further argued that the prosecution must establish not only lack of consent on the part of the prosecutrix, it must also, by evidence, independent of that of the prosecutrix, show that the penis  of the accused penetrated the vagina of the prosecutrix. He submitted that the mere act of the accused in lying on top of the complainant against her will and even with his penis in her vulva or the exterior genitals cannot amount to penetration for the purpose of rape. He argued that penetration for purpose of rape must be penetration of  the vagina. He relied on the case of Simon Okoyomon v. The State (1973) 1 NMLR 292 at 297; The State v. Anolue (1983) 1NCR 71 at 79.

According to the learned counsel, a person charged with rape cannot be presumed to be potent and therefore the prosecution must establish by medical examination that the accused is not an impotent man with a flaccid penis not capable of erection.

He argued that the proof required in rape is not supplied by the solitary claim of the complainant. It must be based on an independent evidence which corroborates the evidence of the complainant. He submitted that the prosecution must adduce independent evidence to corroborate the evidence of the prosecutrix. He relied on section 179 (5) of the Evidence Act, Cap. 112, Laws of the Federation, 1990.

He referred to the evidence before the trial court and submitted that the failure of the prosecution to specifically prove penetration against the 1st appellant, coupled with the omission of the trial court to mention so important ingredient in establishing rape leaves a gapping hole in the case of the prosecution and renders the judgment perverse and indefensible.

He referred to the medical report, exhibit C, tendered by the prosecution and submitted that exhibit C has no probative value at all in proof of rape against the 1st appellant and neither does it have the corroborative force which the learned trial Judge ascribed to it to support PW3 ‘s claims that 1st appellant raped her.

He referred to the evidence of PW1, which, according to the learned counsel, impressed the learned trial Judge as being of corroborative value, and submitted that the evidence was hearsay evidence being what PW1 alleged that he heard from PW2. He further stated that the evidence of PW1 is at variance with the evidence of PW3, and could not have corroborated or confirmed the evidence. He concluded by saying that the evidence of PW1 suggesting that both appellants confessed to have committed the offence is not the type of evidence to corroborate PW3 ‘s evidence of rape, as there are material contradictions in the evidence.  The learned counsel for the appellant again referred to the evidence of PW2 and submitted that the PW2 was in complete ignorance of whatever took place between PW3 and the appellants on his arrival at the scene. If the PW2 was not ignorant of what happened between the PW3 and the appellants he would not have asked the PW3 as to what happened to her. He submitted that PW2 was not an eye-witness of the incident, but he only received the complaint of rape from PW3 herself, and therefore, the evidence of the PW2 cannot be a corroboration of the evidence of PW3, the prosecutrix. He said the evidence of PW2 that 1st appellant confessed to the offence before (his) 1st appellant’s father in itself requires corroboration, since it is in proof of sexual offence, coming from one witness, and that in the absence of such corroboration, the learned trial Judge sitting without a jury, ought to have warned himself in the danger in convicting without corroboration.

He referred to the evidence of DW2 i.e. the 2nd appellant to the effect that when the PW2 reported the matter to 1st appellant’s father and the 1st appellant admitted the allegation made against him, the 1st appellant’s father became angry and started to beat the 1st appellant. He submitted that the PW2 did not state what manner of report angered the father of the appellant, Matthew Na’an. He argued that there was not direct evidence before the court as to what angered 1st appellant’s father Matthew Na’an. Finally, on the first issue, the learned counsel submitted that the evidence of PW2 and PW3 are in conflict; that none of the pieces of evidence relied on the learned trial Judge as corroboration had any corroborative effect and therefore the prosecution has wholly failed to prove the case.

In the brief of argument filed on behalf of the respondent, the learned counsel for the respondent submitted that the prosecution has proved its case beyond reasonable doubt against the appellants.

She said that where the evidence of witnesses for the prosecution agreed on the salient or material facts of the allegation against an accused person minor discrepancies in the evidence (if any) notwithstanding, the prosecution’s case will succeed. She relied on Peter v. The State (1997) 3 SCNJ 48 at 65; (1997) 3NWLR (Pt. 496) 625.

She referred to the evidence before the trial Court, especially the evidence of PW2, PW3 and the confirming evidence based on what the 1st appellant said to PW1 along with exhibits C and D and submitted that the salient facts of the allegations against the appellants have been proved by the prosecution.

She further submitted that where direct accusation is made against a person in circumstances which should elicit instant refutation or denial from him and he does neither, evidence of such could be given against him as evidence of admission by conduct.

She relied on Utteh v. The State (1992) 2 SCNJ 183 at 196-7; (1992)   2NWLR (Pt. 223) 257.

She referred to the evidence of PW 1 to the effect that when asked, the 1st appellant admitted ravishing PW3 but claimed that he did so because he had been courting her without the knowledge of her parents. She said no attempt was made to rebut or challenge the evidence on cross-examination or even in the examination in Chief by the appellants. He referred to the evidence of PW2 to the effect that he saw 1st appellant naked astride an equally naked PW3 copulating and on sighting him the appellants started to run away. According to the learned counsel, the evidence was not challenged on cross-examination. He referred to the evidence of PW4 and exhibit “D’:, the pant said to have been tom by the 1st appellant as to have access to PW3’s vagina. She said the evidence was not contradicted undercross-examination. She submitted that under the circumstances as in this case, the court must accept the uncontradicted evidence and draw an inference of guilt of the accused persons. She relied on Emu v. The State (1980) Digest of Appeal Cases, page 108 paragraph43, 70; Ijoma v. Queen (1962) 2 SCNLR 157,(1962) 1 All NLR 402 at 408.

She submitted that ample corroboration as required by law was furnished by the evidence of PW2 , an eye-witness and exhibits and D. She submitted that the prosecution has proved its case beyond reasonable doubt and the trial court was right to convict as charged as it did. She urged the court to dismiss the appeal.

The charge against the appellants is that they both conspired to commit the offence of rape on one Miss Ushitile Tyoshar, the PW3 and with the active assistance of the 2nd appellant, the 1st appellant did commit the offence of rape on the said Miss Ushitile Tyoshar, the PW3 on the 2nd day of August, 1994.

The learned counsel for the appellants dealt essentially with the principal charge of rape against the 1st appellant in issue No.1 of the appellant’s brief. The charge against the 1st appellant reads:

“That you, Na’ an Upalhar, on or about the 2nd of August, 1994, at Mbayom in Gwer Local Government Area within jurisdiction committed rape on one Miss Ushitile Tyshar (then aged 12 years old) by having sexual intercourse with her against her will and without her consent and thereby committed an offence punishable under section 283 of the Penal Code”.

Section 282 (1) of the Penal Code provides:-

“(1) A man is said to commit rape, who, save in the case referred to in sub-section (2), has sexual intercourse with a woman in any of the following circumstances:-

(a) against her will;

(b) without her consent;

(c) …

(d)…

(e) with or without her consent, when she is under fourteen years of age or of unsound mind”.

To prove a charge of rape the prosecution must establish that the accused had sexual intercourse with the woman in question, namely, the prosecutrix; that the act of sexual intercourse was done in circumstances falling under anyone of the five paragraphs in section 282 (1) of the Penal Code; that the woman was not the wife of the accused; or if she was his wife that she had attained puberty; and that there was penetration. See Ellison Ibo v. Zaria Native Authority (1962) NNCN 30; see also Simon Okoyomon v. The State (1973) NMLR 292 at 296 (Supreme Court).

It is also a well established practice in England and in India that in cases of rape, the evidence of the complainant should be corroborated. Similarly, in Nigeria, a person cannot be convicted of rape of a girl under 14years of age upon the uncorroborated testimony of one witness- See the combined provisions of Section 179 (5) of the Evidence Act, Cap. 112 of the Laws of the Federation, 1990 and Section 218 of the Criminal Code Act, Cap. 77 of the Laws of the  Federation 1990; see also Jos Native Authority Police v. Allah Na Gani (1967) NNLR 107 at 109.

The crux of the learned counsel for the appellants’ argument is that the prosecution must prove not only that there is penetration, they must also adduce credible evidence corroborating the evidence of penetration. He submitted on the totality of the evidence before the trial court that the prosecution has not only failed to prove penetration, it has also failed to adduce any credible evidence corroborating the evidence of the prosecutrix, the PW3.

Let us now analyse critically and examine the evidence before the trial court. The prosecutrix gave evidence as PW3 inter-alia as follows:-

“On 2nd August, 1994, I went to the stream and on coming back, I met the two accused persons standing on the way. They asked me to stop and when I stopped, they pushed away the water which I was carrying in a bucket. They pushed me. I fell down. They dragged me into the bush. The second accused held my legs and pressed them down. The first accused removed his trousers to his kneels. He then removed his penis and inserted it in my vagina. When I was crying the first accused packed sand and put into my mouth. When the second accused held my legs he also tore my pant, red in colour. The pant is with the Police. I can identify my pant. I see the red pant”.

Tendered for identification. Admitted without objection and marked for identification.

“I was crying and my brother, Matthew Tyosaa heard my cries and came to the scene. When he came, the two accused persons ran away. He pursued and got hold of the first accused and took him to his father. His father took a whip to whip him, but Matthew said he should not beat him. From there they went to Kwembe Nyamibo, the kindred head of Mbashaar who said he could not settle the matter as it was above his powers. He advised my father to go wherever he wanted, and my father reported the matter to the Police. The Police locked up the accused in the cell. The Police asked what happened and I told them. The Police took me to the General Hospital Aliade. I was Examined”.

Under cross-examination the PW3 stated inter-alia as follows:

“I was 13 years old then. At the time of (his incident I am not married but I am now married to Andowase Adi in October, 1995. I had no relationship with the first accused person. I did not arrange with the first accused to meet me at the stream. I did not know the where about of the accused persons before they met me. I was actually forced but Matthew did not tell me to say that I was forced. There was a land dispute between the accused family and my family but that dispute was over before this incident. When that dispute was on I was aware of it. There is no existing malice between the two families. I was forced”.

The PW2 who was alleged to have met the accused persons in the act stated in evidence inter-alia as follows:-

“On 2nd August, 1994, in the evening I was going to my farm and on my way I came to the cross road. I heard someone crying in the bush. I went to the scene where I was hearing the cry. There I met 1st accused on top of my half sister Ushitile. The 2nd accused held the two legs of my half sister aside when the 1st accused was having sexual intercourse with her… When they saw me they ran away and I ran after the 1st accused and caught him near a forest. The 1st accused was naked so my intention was to catch him first. The 2nd accused who was not naked also ran away and disappeared into the bush. When I caught the 1st accused, I took him to his father. I met my half sister naked.

The father of the 1st accused asked his son about what I had said. The 1st accused agreed that he was having sexual intercourse with the girl when I met them and he was afraid that was why he ran away. The father was very annoyed and he got a twig from a tree and started beating his son. We then moved to our District Head called Chief Kembe Nyamibo. We were my half-sister myself, PW1, 1st accused and later the mother of the  2nd accused told him to meet us at the Chief’s house and he joined us. The Chief asked the accused persons who agreed to what had happened …”

The PW4, Sergeant Emmanuel Obeka who carried out the investigation into the case gave evidence and tendered the medical report issued by the General Hospital Aliade on the PW3 concerning the allegation in question as exhibit C. He also tendered exhibit ‘D’.

Exhibit C, the medical report, reads as follows:

“Re-Tyoshar Ushitile.

The above named patient was seen in our hospital on the 3rd of August, 1994 by 12.30am with complaints of generalised body pains following sexual harassment by two men. One general examination patient was conscious afebrile and not pale.  Perineal examination revealed normal external genitalia, tender vulva with whitish secretion. The hymen was lax, lacerated but there was no active bleeding”.

As stated earlier, in a prosecution for rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove that:-

(i) The accused had sexual intercourse with the prosecutrix;

(ii) That the act of intercourse was unlawful, not being between husband and wife;

(iii) That in giving the evidence of intercourse complete penetration is proved: see Jos Native Authority v. Allah Na Gani (1968) NMLR 8, (1967) NNLR 107. See also R. v. Marsden (1891) 2 QBD 149; The State v. Ojo (1980) 2 NCR 391 at 394.

(iv) That the accused had the ‘MENS REA’, that is, intention to have sexual intercourse with the prosecutrix without her consent. See R. v. Kufi (1960) NMLR 1 or that the accused acted recklessly, not caring whether the prosecutrix consented, or not,. See R. v. Morgan (1976) AC 182. And,

(v)The prosecution must adduce credible evidence to corroborate the complaint made by the prosecutrix.

From the evidence of the PW2, PW3 and exhibit C tendered by PW4, it is very clear and well established that:-

(i) On the 2nd day of August,1994, the prosecutrix i.e. PW3 went to the village stream to fetch water.

That on her way back she met the appellants on the way.

(iii) That the appellants forcibly removed the water she was carrying, pushed her down and dragged her into the bush.

(iv) That while the 2nd appellant held the legs of the prosecutrix astride and pressed it down, the 1st appellant removed his trousers to his knees, jumped on top of her, poured some sand in her mouth and forcibly had sexual intercourse with her.

However, on a critical and sober analysis of exhibit C, exhibit, seems to raise more questions than answers. Exhibit C says interalia-

“On general examination, patient was conscious, afebrile, and not pale. Perineal examination revealed normal external genitalia, tender vulva with whitish secretion. The hymen was lax, lacerated but there was no active bleeding”.

From exhibit C the external genitalia was normal, the vulva was tender with whitish secretions. Exhibit C does not show what type of secretions it was. According to exhibit C, the hymen was lax, meaning loose, slack, not tense, or rigid or tight. Exhibit C states that the hymen was lacerated but there was no active bleeding, exhibit C does not state what could have caused the laceration Exhibit B ought to say the cause of the laceration to the hymen.

Hymen is defined as:-

“the piece of skin partly covering the vagina of a woman who had never has sex”. See Oxford Advanced Leamer’s Dictionary, Special Edition at page 585.

Exhibit C does not say that the hymen of the prosecutrix i.e.PW3 in this case was broken. It could not have been possible for the hymen to be only lax if there had been a complete penetration. Although the PW2 stated that he met 1st appellant on top of the PW3 while the 2nd appellant held down astride the legs of PW3, and although the PW3 also testified that the 1st appellant removed his trousers to his kneels, took out his penis and inserted it in her vagina, it is not enough that the prosecutrix alleged the insertion of the 1st appellant’s penis into her vagina or that he lay on her. In Okoyomon v. The State (1973) NMLR 292, the prosecutrix, Rose Iboi, who gave evidence in that case as PW4 and Comfort Okoh (PW3) on November 2, 1970 went to the bush near the village to fetch firewood. The accused met them there and invited Rose Iboi (PW4) to follow him to a spot nearby where he would show her some firewood. When she asked that PW3 should accompany them, the accused refused, and she alone went with him until they reached a certain spot where the accused fell her down, removed her pant and his own pair of shorts, and started to have carnal knowledge of her. She shouted and hailed on PW3, the accused covered her mouth with a piece of cloth. She was laying on her back as the accused lay on her and inserted his penis into her vagina, shaking ‘his waist up and down’ on her. She tried unsuccessfully to get up. While still in that position Akhere (PW1) arrived on the scene. The accused got up, pulled up his pair of shorts and, after answering Akhere’s question as to what he was doing to her, the prosecutrix went away through a path in the bush. Thereafter, she returned crying to the spot where PW3 was and reported what the accused had done to her before they both returned to their village with PW3 carrying the firewood that the prosecutrix (PW4) had fetched. On reaching home, PW4 reported the incident to her elder brother and subsequently to the Police. The prosecutrix was taken to the hospital by the Police (PW2) who investigated the case. At the trial the prosecutrix gave evidence of what happened. The PW3 substantially confirmed the prosecutrix’s account of what happened and Akhere who testified as PW1 stated how he overheard the accused talking about going to a spot to fetch firewood for two girls some 50 feet from his farm. How he later heard the prosecutrix protesting against what the accused was doing to her and hailing on Comfort (PW3), and he went towards the spot where he saw the accused on top of the prosecutrix, with his pair of shorts pulled down below his, knees. He also stated how the accused got up immediately, he (the accused saw him, the witness, and pulled up his pair of shorts. The medical report showed that the prosecutrix was examined and found that she had venereal disease; that her hymen was not intact, that she was between 11 and 12 years old, and that she had had sexual intercourse with a man which was why she had offensive vaginal discharge and tearing of the hymen. After about 12 days later, the accused was brought to the doctor to see whether or not the accused was capable of having sexual intercourse.

In reply to the doctor’s question, about this the accused said that he was capable, of having sexual intercourse but that he could not conceive his wife for the previous seven years. The accused gave evidence denying the charge against him. After a careful review of the evidence, the learned trial Judge disbelieved the evidence of the doctor. He also disbelieved the evidence of the accused, found him guilty of rape and sentenced him to four years imprisonment with hard labour.

On appeal to the Supreme Court, the Supreme Court held, Per His Lordship, Elias, CIN, inter-alia, as follows:-

“(a) that we are of the view that the prosecution had not established that the accused did have unlawful carnal knowledge of the prosecutrix in the sense that there had been penetration as required by section 300 of the Criminal Code. It is not enough that the prosecutrix alleged the insertion of the accused person’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 venereal disease of a kind at least similar to that found in the prosecutrix’s vagina…Also there should have been medical evidence as to how long PW4’s hymen had been torn and whom by…

(b) That the evidence of PW1 has only a limited probative value in corroborating the prosecutrix’s story that the accused was on top of her but not as corroborating the actual act of penetration; All that PW1 said on the point was:-

‘when I saw the accused on top of Rose as he was apparently having carnal knowledge of her. I saw Rose shaking her legs in resistance’. Moreover, the prosecutrix alleged both that she could not succeed in freeing herself partly because accused covered her mouth with a piece of cloth and partly because the accused who was lying on her, put his legs on her own legs…”

In the instant case on appeal, although the PW2 testified as an eye-witness that he met the 1st appellant on top of the prosecutrix and that the 2nd appellant was having carnal knowledge of the prosecutrix, that evidence has only a limited probative value in corroborating the prosecutrix’s story that the 1st appellant was on top of her but not as corroborating the actual act of penetration.

As regards the question of corroboration, the learned counsel for the appellants submitted that the prosecution did not adduce any credible evidence corroborating the evidence of the prosecutrix. He argued that the proof required in rape is not by the solitary evidence of the prosecutrix. The proof must be based on an independent evidence which corroborates the claim or evidence of the prosecutrix.

He submitted that there is no corroborative evidence unequivocally implicating the appellants before the trial court. He urged the court to allow the appeal.

It is now trite law that the proof required to establish offence of rape is not based on the solitary evidence of the prosecutrix. There must be an independent credible corroborative evidence. The nature and content of the corroborative evidence must not only corroborate  and support the prosecutrix’s claim that the accused had raped her by penetrating into her vagina, it must also unequivocably implicate the accused person. It is immaterial that the same evidence corroborates some other portions of the prosecutrix’s evidence: – See R. v. Ekelagu (1960) SCNLR 488, (1960) 5 FSC 217 at 220; R. v. Goldstein(1914) 11 CAR 27 at 29. It is the bounden duty of the prosecution when leading evidence in proof of rape, to adduce independent evidence to corroborate the complaint made by the prosecutrix. See the Combined provisions 8 of section 179 (5) of the Evidence Act, and sections 218, 221 and 223 of the Criminal Code..

Corroborative evidence with respect to offence of rape is evidence which shows or tends to show that the story of the prosecutrix that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused:- See R. v. Baskerville (1916) 2 KB 658; see also Isaac Sambo v. The State (1993) 7 SCNJ 128 at 135; (1993) 6 NWLR (Pt. 300) 399.

In considering whether some evidence is corroborative of some other, one must take all the little items of the former together and consider whether they all add up to corroboration as a whole – See The Queen v. Omisade & Others (1964) NMLR 67.

In the instant case, the prosecutrix testified as PW3 to the effect that on the 2nd of August 1994, the prosecutrix went to the village stream to fetch water and on her way back, she met the appellants at the cross-road. The appellants forcibly removed the water she was carrying, pushed her down, and dragged her into the bush, and while the 1st appellant removed his shorts down his kneels, the 2nd appellant held the prosecutrix’s legs astride and pressed them down for the 1st appellant to take out his penis and inserted it into the prosecutrix’s vagina. To stifle her cries and protests the 1st appellant put sand in her mouth.

This was the scenario met by the PW2 who was going to his farm when he came to the cross road and heard someone crying in the bush. PW2 went into the bush in the direction of the cries and to his dismay he met the 1st appellant on top of the prosecutrix copulating with her, while the 2nd appellant held the legs of the prosecutrix.

The evidence of the PW2, to my mind, is an independent evidence and it corroborates in material particulars the prosecutrix’s story that the 1st appellant was on top of her but not as corroborating the actual act of penetration. The evidence of PW2 therefore has a limited probative value in corroborating the prosecutrix’s evidence that the 1st appellant was on top of her, while the 2nd appellant held her two legs astride and pressed them down. The probative value of PW2 evidence is not as corroborating the actual act of penetration.

The prosecutrix also gave evidence in her evidence in chief and under cross examination that the 2nd appellant tore her pant exhibit ‘D’ to allow the 1st appellant insert his penis into her vagina.

When she was recalled for further cross-examination about three 8 (3) years after the incident, she stated that it was the 1st appellant that tore her pant and insert his penis into her vagina.

The PW2 gave evidence that on his arrival at the scene of the incident, he met the 1st appellant on top of the prosecutrix and that the prosecutrix was naked and the 1st appellant had pulled his shorts down to his knees. In the circumstances, the evidence of PW2 corroborates the prosecutrix’s story that the appellants tore her pant, exhibit D. In that regard, it seems to me that the PW2’s evidence and exhibit ‘D’ corroborate the story of the prosecutrix that the appellants laid down the prosecutrix in the bush, and while the 2nd appellant held her legs astride and pressed them down the 1st appellant was on top of her and she was naked. In other words, the evidence of PW2 and exhibit ‘D’ tendered by PW4 corroborate the evidence of the prosecutrix to the effect that the 1st appellant did everything that s necessary to unlawfully  have carnal knowledge of the prosecutrix, but failed to get complete penetration; that is to say appellant attempted to commit rape on the prosecutrix.

The learned counsel for the appellants referred, in his brief to the evidence of the prosecution witnesses and submitted that there were contradictions in the evidence. He referred in particular to the evidence of PW 1 and PW2 as saying that both appellant had sexual intercourse with the prosecutrix and that the evidence is at variance with the evidence of the prosecutrix. He also referred to the evidence of the prosecutrix when she gave evidence in chief and under cross examination and her further evidence when she was recalled for further cross-examination after about 3 years of the incident, wherein the prosecutrix testified at first that it was the 2nd appellant that tore her red pant – exhibit ‘D’ , but later on recall for further cross examination, she said it was the 1st appellant. He submitted that the contradictions are fatal to the case of the prosecution and the appeal should be allowed.

The learned counsel for the respondent replied in her brief that where the prosecution witnesses are agreed on salient or material facts of the allegation against the accused person, the prosecution’s case must succeed. She said minor discrepancies in the evidence will not vitiate the case for the prosecution.

The law governing the issue of contradiction in criminal cases was considered in the case of Anthony Enahoro v. The Queen (1965) NMLR265 at 281-282, where the Supreme Court adopting its earlier views on the question of contradictions, in Omisade v. The Queen (1964)NMLR 67, stated as follows:-

“In the case of Omisade, we pointed out that where the ground of appeal relied upon was that of contradictions in the evidence of witnesses, it is not enough to warrant a reversal of judgment merely for the appellant to show the existence of those contradictions without showing further that the trial Judge did not avert to, and considered the effects of, those contradictions. Besides, we take the view that for the appellant to succeed on the ground of contradictions in the evidence of witnesses for the prosecution, the contradictions must be shown to amount to substantial disparagement of the witness or witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses”.

See also Michael Omisade v. The Queen (1964) NMLR 67; John Peter v. The State (1997) NWLR (Pt. 496) 625 at 641.

In the instant case, the contradiction in the evidence of the prosecutrix with respect to whether it was 1st appellant and not the 2nd appellant that tore her pant – exhibit ‘D’ is, to my mind, not of any substantial nature. The evidence remains unchallenged that both the 1st and 2nd appellants forcibly removed the water which the prosecutrix was carrying, pushed her down, dragged her into the bush, laid her down and while the 2nd appellant held her legs astride and pressed them down, the 1st appellant got on top of her and one of the appellants tore her pant. I take the view that it is immaterial whether it was the 1st appellant or the 2nd appellant that tore the pant. It has not been rebutted that her pant – exhibit ‘D’ was torn by the appellants. I also hold the view that the contradictions referred to by the learned counsel for the appellants in the evidence of the 1st and 2nd witnesses for the prosecution is of no consequence. It does not amount to a substantial disparagement of the witnesses concerned, especially when regard is had to the time lag. The offence took place on 2nd day of August, 1994 the PW1 and PW2 gave evidence on 22nd of October, 1996, while PW3 testified on 26th November, 1996, and was recalled for further cross-examination on 6th of October, 1997, after a year that she gave evidence in chief and cross-examined. It is understandable if there are some differences  in their account of the event.

For the foregoing reasons, I think that the proper charge of which the 1st appellant can be convicted is one of attempted rape and not rape, as the ingredient of the latter offence has been satisfactorily established.

Under section 218 of the Criminal Procedure Code Law of Northern Nigeria, the learned trial Judge, had power to convict the 1st appellant for attempted rape, in so far as the ingredients of the full offence of rape are not satisfactorily established.

I accordingly, set aside the conviction of the 1st appellant for rape and substitute one for attempted rape. That settles issue No. I raised by the appellants.

ISSUE 2

Issue 2 in the appellants’ brief reads as follows:-

“Whether in the absence of proof of rape against 1st appellant, there was proper evidence for the conviction of 2nd appellant for abetment of rape?”.

The charge against the 2nd appellant to which issue 2 raised by the appellants relates is abetment under section 85 of the Penal Code.

That section reads as follows:-

“85. Whoever abets any offence, shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Penal Code or by any other law for the time being in force for the punishment of such abetment, be punished with the punishment provided for the offence”.

It is obvious that the section requires that, apart from the abetment, the act abetted should have been actually committed. The section required the proof not only of the acts or omission constituting the abetment but also of the commission of the act abetted in consequence of the abetment:- See Patrick Njovens & Others v. The State (1973) NMLR 331 at 346.

In a charge of abetment of an offence the ‘initial element’ is the instigation or positive act of encouragement to do the act or omission which constitutes the offence:- See Patrick Njovens & Others v. The State (supra) at page 347.

In the instant case, there is an unrebutted evidence that the appellants forcibly removed the water the prosecutrix was carrying, pushed her into the bush; while the 1st appellant removed his shorts, lying on the top of the prosecutrix, 2nd appellant held the two legs of the prosecutrix astride, pressed them down for the 1st appellant to insert his penis into the vagina of the prosecutrix. This evidence was not rebutted or challenged. It is beyond dispute that this singular act of the 2nd appellant was a positive act of encouragement to the act of the 1st appellant, namely attempted rape of the prosecutrix.  In the circumstances, I am of the view that the 2nd appellant aided and abetted the 1st appellant in the commission of the offence namely, attempted rape on the prosecutrix in this case and I so find.

In that regard, I set aside the conviction of the 2nd appellant for abetment of rape and substitute there for a conviction for abetment of attempted rape. That disposes of issue No.2 in the appellants’ brief.

Issue 3 raised by the appellants is “Whether the count of conspiracy was properly proved by inference from the conduct of the appellants, rather that from independent evidence in the peculiar circumstances of the case”.

The learned counsel for the appellants in arguing the issue under consideration referred to the definition of criminal conspiracy as defined by section 96(1) of the penal code and submitted that for the prosecution to establish the offence of conspiracy, the prosecution must prove the existence of an agreement or concert among the accused prior to the alleged substantive offence. He said the prosecution must also prove an intention to be a party to the agreement to do an unlawful act. He relied on the case of R. v. Thombon 50 CAR 1.

He submitted that the prosecution did not prove any agreement or concert by the appellants to commit rape and that there was no evidence of any particular conduct or collateral circumstances from which a trial court may properly infer an agreement to commit rape. He urged the court to allow the appeal.

In her own brief, the learned counsel for the respondent submitted that in proving conspiracy, it is not necessary to prove verbal communication to conspire. She argued that it is enough if there is a design. It is not necessary to prove a meeting or concert for the purpose, as it is enough to infer an agreement from the overt acts or omissions exhibited in the execution of the design. She relied on Alan Glendhill, the Penal Code of Northern Nigeria and Sudan at page 63. She referred to the evidence before the trial court and submitted that the prosecution had proved its case and the appeal should be dismissed.

Section 96(1) of the penal code provides as follows:-

“96(1) when two or more persons agree to do or cause to be done:-

(f) an illegal act; or

(g) an act which is not illegal, by illegal means, such an agreement is called a criminal conspiracy”.

Conspiracy is distinguished from other offences in that the crime consists simply in the agreement or confederacy to do some act, no matter whether it is done or not. In other offences, the intention to do a criminal act is not a crime of itself until something is done amounting to the doing or attempting to do some act to carry out the intention.In proving the offence of conspiracy, sometimes there is direct and distinct evidence on the hatching of the plot, in which case an accomplice or informer is called by the prosecution and he gives evidence of it. Some other times, it is open to the trial court to infer conspiracy from the fact of doing things towards a common end.

In Paul Onochie v. The Republic (1966) NMLR 307 at 308, the Supreme Court, per Bairamian, JSC had the following to say on the law of conspiracy:-

“The trial Judge’s view, that evidence in support of either charges must be distinct which led to acquittal on the first count, is contrary to common sense. If two or more persons break into a store in a company, it must be because they had conspired so to do. Sometimes there is direct and distinct evidence on the hatching of the plot; an accomplice or informer is called by the prosecution and he gives evidence of it, but such evidence is not indispensable. It is open to the trial court to infer a conspiracy from the fact of doing things towards a common end. Having found the eight appellants guilty of breaking into the store in company, the learned Judge ought to have convicted them on the first count of conspiracy to break in”.

With the above authority in mind, I think the learned trial Judge was right when in convicting the appellants for the count of  conspiracy, he said: “The accused persons agreed that throughout the relevant period they were together. There is evidence for the prosecution that the second accused aided and abetted the first accused to commit sexual intercourse with PW3. The agreement to commit this illegal act is inferred from their conduct”.

I think the learned trial Judge was perfectly right to have inferred conspiracy from the act of the appellants in this case. Evidence abound in support of the common design by the appellants. They were together throughout the period and indeed before they met the prosecutrix on the road to the stream. If the 2nd appellant had not agreed with 1st appellant to commit the offence he would not have held the two legs of the prosecutrix for the 1st appellant to have his way. I think the conviction of the appellants by the learned trial Judge for conspiracy is perfectly in order in the circumstances of the case.

In the final analysis, the appeal partially succeeds. Accordingly, I set aside the conviction of the 1st appellant for rape and substitute there for a conviction for attempted rape. I also set aside the conviction of the 2nd appellant for abetment of rape and substitute there for a conviction for abetment of attempted rape.

I confirm the conviction of the appellants by the learned trial Judge for conspiracy to commit rape.

On account of the enormity of the crime committed by the appellants, I confirm the sentence of three (3) years imprisonment as imposed by the trial Judge on each of the appellants.

 

  1. T. MUHAMMAD, J.C.A.: I have had the advantage of reading the judgment of my learned brother, Obadina, JCA. I agree with his reasoning and conclusion. I abide by the consequential orders made in the lead judgment.

 

NZEAKO, J.C.A.: I have had the privilege of a preview of the leading judgment of my learned brother, Obadina, JCA. I am in complete agreement with his reasoning and conclusions, I adopt them as mine. I also confirm the sentence of 3 years imprisonment handed down by the learned trial Judge. Befitting punishment must be meted out to persons who seek to defile and degrade woman-hood and in particular the ever-so helpless girl-child. This will act as deterrent to others.

 

Appeal allowed in part.

 

 

Appearances

  1. O. FalowoFor Appellant

 

 

AND

M.E. Sule [Mrs], Principal State Counsel, Ministry of Justice, Benue StateFor Respondent

 

 

 

 

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