NSEUDOH v. STATE (2020)

NSEUDOH v. STATE

(2020)LCN/14151(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, May 18, 2020

CA/C/93C/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ODUNGIDE ASSAM NSEUDOH APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

PROOF TO ESTABLISH THE OFFENCE OF RAPE

In a charge of rape, the prosecution must prove that:
1. The accused has sexual intercourse with the prosecutrix;
2. The act was done in circumstances falling under the following –
(a) Against her will,
(b) Without her consent,
(c) With her consent when the 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,
(e) With or without her consent, when she is under fourteen years of age or of unsound mind.
3.There was penetration.
See STATE V MAGAJI (2017) LPELR – 4347 (SC), OGUNBAYO V STATE (2007) 8 NWLR (pt 1035) 157, IKO V STATE (2001) 7 SC (pt 11) 115 at 120 and OFORDIKE V STATE (2019) 5 NWLR (pt 1666) 395 AT 421 422. PER SHUAIBU, J.C.A.

WHETHER OR NOT THE SLIGHTEST PENETRATION CONSTITUTES AN ACT OF SEXUAL INTERCOURSE

I have outlined the essential ingredients of the offence of rape. And sexual intercourse is deemed complete upon proof of penetration of penis into vagina. It has been held that even the slightest penetration constitute the act of sexual intercourse. The fact that a prosecutrix who is allegedly defiled is found to be Virgo intacta (i.e a virgin) is not inconsistent with partial sexual intercourse and the Court will be entitled to find that sexual intercourse has occurred if it is satisfied on that point from all the evidence led and surrounding circumstances of the case where a penetration was proved but not of such a depth as to injure the hymen, was held to be sufficient to constitute the crime of rape. In other words, proof of the rupture of the hymen is therefore unnecessary to establish the offence of rape. SeeR V. MARSDEN (1897) 2 QB 149, RUTHERFORD V RUTHERFORD (1923) A.E. IC and IKO V STATE (supra). PER SHUAIBU, J.C.A.

WHETHER OR NOT CORROBORATION IS ESSENTIAL TO SECURE A CONVICTION IN AN OFFENCE OF RAPE

“Corroboration” has been held not to be a technical term of art and means no more than the evidence tending to confirm, support and strengthen other evidence sought to be corroborated. See DPP V KILBORRNE (1973) AC 729 at 758 and R V HARTLEY (1941)1KB 5 (C.C.A). The corroboration need not consist of direct evidence that the accused person committed the offence, nor need it amount to a confirmation of the whole account given by the witness; provided that it corroborates the evidence in some respects material to the charge in issue.
Perhaps, it needs to be stressed that in a charge of rape, corroboration is not essential to secure conviction where the evidence of a sole witness is cogent, strong and credible. Nevertheless, it is desirable that such evidence be corroborated in order to confirm in some material particular not only that the offence has been committed but that it was the accused who committed it. See OFORDIKE V STATE (supra). PER SHUAIBU, J.C.A.

THE RULE AGAINST BIAS OR LIKELIHOOD OF BIAS

The rule against bias has two main aspects, (i) an adjudication must not have any direct financial or proprietary interest in the outcome of the proceedings and (ii) there must not be reasonable suspicion of bias or a real likelihood of bias. See OWOLABI V F.R.N (2018) LPELR 44959 (CA) and ABACHA V MINISTER OF HEALTH (2006)2 NWLR (prt 953) 105. The issue in this appeal falls under the second aspect of rule against bias.
In determining whether there is a reasonable suspicion of bias or a real likelihood of bias, the facts of each case has to be critically examined to see whether the judge can be said to be fair. Thus, recourse must be had to the consideration of the entire facts and surrounding circumstances of a particular case. What the Court looks at is not the mind of the judge but the impression of a reasonably, ordinary man sitting in the Court, seized with the facts of the case. SeeDEDUWA V OKORODUDU (1976)1 NWLR 236 and ABIOLA V F.R.N. (1995)7 NWLR (pt 405). There must be circumstance which a reasonable man would think it likely or probably that the justice as the case may be, would, or did favour one side unfairly at the expense of the other. In AMACHREE V NIGERIAN ARMY (2002) LPELR 5833 (CA) it was held that mere suspicious is insufficient to ground either bias or likelihood of bias.
In a criminal trial, where the prosecution must prove its case beyond reasonable doubt, it must be apparent on the record that the Court gave adequate consideration to the evidence on both sides and reasons for believing the evidence of one side against that of the other. See F.R.N. V YAHAYA (2019) 7 NWLR (prt 1670) 85 at 110. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State sitting at Eket Judicial Division delivered on 20th December, 2017 wherein the appellant was found guilty of rape and sentenced to ten (10) years imprisonment without an option of fine.

The gist of the case as briefly presented by the prosecution before the trial Court is that the appellant on different occasions raped one Emediong Assam Ikpe; a child of 7 years old to wit, laid her down on a mat, rubbed Vaseline on her vagina as well as his penis and when she attempted to scream, he covered her mouth with his hand and threatened to kill her if she ever told anyone.

At the trial, the prosecution called five (5) witnesses including the prosecutrix who testified as PW1 and a medical doctor who testified as pw4. The appellant on his part testified as DW1 and in addition called his wife who testified as DW2. At the conclusion of the trial, both sides filed and adopted their written argument. The learned trial judge in a reserved and considered judgment delivered on 20th December, 2017, found the appellant guilty at

page 151 of the record of appeal thus:
“In conclusion, I am satisfied that the prosecution has proved the one (1) count charge of rape of a 7 year old girl contrary to Section 32 (1) & (2) of the Child Rights Law of Akwa Ibom State 2008.
The accused is hereby convicted as charged.”

Miffed by the above, appellant appealed to this Court upon three (3) grounds of appeal at pages 152 – 154 of the record of appeal. By leave of this Court granted on 17/3/2020, appellant amended his notice of appeal by incorporating an omnibus ground.

In this Court, parties exchanged and adopted their briefs of argument. The appellant’s brief settled by Akpadiaha Ebitu, Esq. raised the following issues for determination:
1.Whether the trial Court was right in law when it held that the prosecution proved the offence of rape whereas prosecution did not prove penetration. (Distilled from ground 2).
2.Whether the trial Court acted rightly in law when it relied on the uncorroborated and unsworn evidence of a child (PW1) to convict the accused/appellant. (Distilled from ground 3).
3.Whether the trial Court was right when it made

up its mind and concluded that the prosecutrix was raped before evaluation of evidence. (Distilled from ground 4).
4.Whether the judgment of the trial Court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced. (Distilled from omnibus ground).

The respondent’s brief by the learned Attorney General of Akwa Ibom State, Uwemedimo Nwoko, Esq. distilled two issues namely;
1.Whether or not the prosecution proved the case against the appellant beyond reasonable doubt as required by law to ground a conviction.
2.Whether or not the trial Court was bias or right to rely on the unsworn evidence of PW1.

I have carefully considered all the arguments of the parties in their brief in respect of the above issues. The two issues formulated by the respondent are apt. I shall therefore adopt them for the determination of this appeal.

On issue 1, the learned counsel for the appellant highlighted the essential ingredients of the offence of rape as contained in Section 32 (1) and (2) of the Akwa Ibom Child’s Rights Law 2008 and submitted that the evidence adduced before the trial Court did not show that

the penis of the accused penetrated, pierced into, was inserted into, found its way into the vagina of the prosecutrix. Thus, the evidence of the prosecutrix, pw1 to the effect that the accused raped her, fucked her and sexed her cannot provide the missing link as there must be a concrete evidence of the penis entering into her vagina no matter how slight. He referred to NATSAHA V STATE (2017) ALL FWLR (prt 898) 127, POSU V STATE (2011) ALL FWLR (prt. 565) 234, JEGEDE V STATE (2001) FWLR (PRT 66) 72, ADONIKE V STATE (2015) LPELR – 24281 (SC) and hosts of other cases to emphasis that penetration is the most important ingredient of the offence of rape and unless penetration is proved the prosecution must fail.

It was further submitted that while corroboration in rape cases is not statutory but it is desirable as a matter of practice more so that the prosecutrix (pw1) gave an unsworn evidence. And that the evidence of pw2 and pw3 being hearsay evidence cannot rightly form corroborative evidence and the fact that there was lapse of time from the time of the commission of the alleged offence

and when these witnesses became aware of it leaves more to be desired. Also the evidence of pw4 according to the learned counsel was not scientifically conclusive and therefore cannot afford any corroboration in the light of delay and the inconclusive gaps in its credibility. He referred to IKUMONIHAN V STATE (2018) LPELR – 44362 and OKABICHI V STATE (1975) 3 SC 96 to the effect that evidence in corroboration must be independent testimony, which affects the accused by connecting or tending to connect him with the crime.

Learned counsel for the respondent also maintained that the most important ingredient of the offence of rape is penetration, the slightest penetration will be sufficient to constitute the offence of rape. He submits that the entry of penis or some other part of the body or a foreign object into the vagina or other bodily orifice amounts to penetration also relying on the authority of POSU V STATE (supra).

Still in argument, learned counsel submits that the evidence of pw1, the victim, was a detailed account of what the accused person did in the various instances he raped her wherein

he laid her down on a mat, rubbed Vaseline on her vagina as well as his penis and raped her. Thus, it was in consideration of the fact that the victim was raped three times at different occasions, the victim stressed that the appellant sexed her and she equally used the word “fuck”. He maintained that the appellant’s penis passed through the vaginal; opening of the victim before it could cause the partial tear of the hymen as indicated in the medical evidence. Thus, even the slightest penetration, will be sufficient to constitute the act of sexual intercourse. He referred to OGUNBAYO V STATE (2007) LPELR – 2323 (SC).

RESOLUTION OF ISSUE 1
In a charge of rape, the prosecution must prove that:
1. The accused has sexual intercourse with the prosecutrix;
2. The act was done in circumstances falling under the following –
(a) Against her will,
(b) Without her consent,
(c) With her consent when the 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,
(e) With or without her consent, when she is under

fourteen years of age or of unsound mind.
3.There was penetration.
See STATE V MAGAJI (2017) LPELR – 4347 (SC), OGUNBAYO V STATE (2007) 8 NWLR (pt 1035) 157, IKO V STATE (2001) 7 SC (pt 11) 115 at 120 and OFORDIKE V STATE (2019) 5 NWLR (pt 1666) 395 AT 421 422.

In the instant case, pw1 gave sordid evidence that one day as she was hawking fruits; the accused took her to his room and asked her to lie down on a mat. He used vaseline to rub on her vagina and also on his penis and raped her. She cried and wanted to shout but he covered her mouth with his hand.

On another day, her grandmother sent her to the accused person to collect crude oil. He told her to keep the bottle on the table and took her inside and did the same thing. That is, laid her on a mat and “fucked” her.

On the last occasion, the accused sent her to come for him to barb her hair. After barbing her hair, he rubbed something on her head and told her to enter his room. He removed her cloth, laid her on a mat and rubbed her vagina with Vaseline as well as his penis and

“fucked” her. All the time the accused had intercourse with pw1 there was nobody in the house. Pw1 told her friend in the school and the friend reported the incident to her grandmother (pw2). Pw2 in turn reported it to pw1’s father Mr. James Assam (pw3) who subsequently reported to the police.

R V. MARSDEN (1897) 2 QB 149, RUTHERFORD V RUTHERFORD (1923) A.E. IC and IKO V STATE (supra).

The appellant’s contention in this case is that the words used by pw1 to wit, he “raped me”, he “fucked me”, and he “sexed me” did not established penetration which is the sine qua non to the proof of the offence of rape.

Penetration means passing into or through, often by overcoming resistance. In the context of a criminal offence of rape, it is to insert the penis into the vagina of the prosecutrix. Adverting now to the evidence of the prosecutrix on the question of what happened between the appellant and herself was without doubt that what she was subjected to by the appellant would constitute the clearest case of rape if appropriately believed.

Learned counsel for the appellant has stressed on the desirability of corroborative evidence on the account of pw1’s unsworn evidence.
“Corroboration” has been held not to be a technical term of art and means no more than the evidence tending to confirm, support and strengthen other evidence sought to be

corroborated. See DPP V KILBORRNE (1973) AC 729 at 758 and R V HARTLEY (1941)1KB 5 (C.C.A). The corroboration need not consist of direct evidence that the accused person committed the offence, nor need it amount to a confirmation of the whole account given by the witness; provided that it corroborates the evidence in some respects material to the charge in issue.
Perhaps, it needs to be stressed that in a charge of rape, corroboration is not essential to secure conviction where the evidence of a sole witness is cogent, strong and credible. Nevertheless, it is desirable that such evidence be corroborated in order to confirm in some material particular not only that the offence has been committed but that it was the accused who committed it. See OFORDIKE V STATE (supra).

In the instant case, the learned trial judge relied on the evidence of pw4, the Medical Doctor who examined pw1 and observed tenderness in the pelvic region. He told the trial Court that pw1’s hymen was partially ruptured. Pw4, according to the learned trial judge gave compelling evidence which along with the medical report exhibit, I corroborate

the evidence of pw1 on the issue of rape.

Reverting to the two pieces of evidence which the trial Court found were corroborative of the testimony of pw1, same in my considered view unequivocally confirm that the prosecutrix had been raped by the appellant. Learned counsel for the respondent has argued and I endorsed his submission that the appellant’s penis passed through the vaginal opening of the prosecutrix before it caused the partial tear of the hymen. Issue 1 is therefore resolved against the appellant.

On issue 2, learned counsel for the appellant contends that the trial Court at a very early stage and before the evaluation of evidence concluded that pw1 was raped and thereby made up its mind even before evaluation of evidence. He submits that by referring the appellant as a clever fox was a manifest deploy of emotions and bias leading the trial Court to convict the appellant unjustly. He referred to EGWUMI V STATE (2013) LPELR 20091 (SC).

On his part, learned counsel for the respondent submits that the allegation of bias or likelihood of bias against the trial Court remains a suspicion which was not supported by

clear, direct, positive unequivocal and cogent evidence from which the likelihood of bias could be referred. He referred to ANOSIKE V IGBEKE (1999) 8 NWLR (prt 616) 686 ONIFOWASHE V. BALOGUN (2002)6 NWLR (prt 762)1 and ABALAKA V MINISTER OF HEALTH (2006) 2 NWLR (prt 963) 105.

The paramount question on issue 2, is whether or not the trial Court was bias in relying on the unsworn evidence of pw1.
The rule against bias has two main aspects, (i) an adjudication must not have any direct financial or proprietary interest in the outcome of the proceedings and (ii) there must not be reasonable suspicion of bias or a real likelihood of bias. See OWOLABI V F.R.N (2018) LPELR 44959 (CA) and ABACHA V MINISTER OF HEALTH (2006)2 NWLR (prt 953) 105. The issue in this appeal falls under the second aspect of rule against bias.
In determining whether there is a reasonable suspicion of bias or a real likelihood of bias, the facts of each case has to be critically examined to see whether the judge can be said to be fair. Thus, recourse must be had to the consideration of the

entire facts and surrounding circumstances of a particular case. What the Court looks at is not the mind of the judge but the impression of a reasonably, ordinary man sitting in the Court, seized with the facts of the case. SeeDEDUWA V OKORODUDU (1976)1 NWLR 236 and ABIOLA V F.R.N. (1995)7 NWLR (pt 405). There must be circumstance which a reasonable man would think it likely or probably that the justice as the case may be, would, or did favour one side unfairly at the expense of the other. In AMACHREE V NIGERIAN ARMY (2002) LPELR 5833 (CA) it was held that mere suspicious is insufficient to ground either bias or likelihood of bias.
In a criminal trial, where the prosecution must prove its case beyond reasonable doubt, it must be apparent on the record that the Court gave adequate consideration to the evidence on both sides and reasons for believing the evidence of one side against that of the other. See F.R.N. V YAHAYA (2019) 7 NWLR (prt 1670) 85 at 110.

In the instant case, the appellant alleged that the trial Court having made a conclusion at a preliminary stage of the case

is bias against him. At page 147 of the record of appeal, the trial judge said:
“As for the certainty of her age, there is no doubt that pw1 was raped when she was 7 years. That is why in her evidence in Court in 2017 she testified that she is 12 years. The difference between 2012 and 2017 is just (5 years. By simple arithmetic if 5 is added to 7 it is 12. There is no shaking in that piece of evidence relating to the age of the prosecutrix.”

He continued at page 150 that:-
“I think the accused is a cleaver fox. If not how on earth would he manufactured the story of his impotency? He never told the police at earliest opportunity only to become important in this Court.
For me that defence is too late. It is an afterthought and certainly not credible.”

From the above, the allegation of bias against the trial Court is unsupported by any shred of evidence. And considering the entire facts and surrounding circumstances of the case, a reasonable man sitting in the Court; seized with the facts of the case will not infer bias or likelihood of bias on the part of the trial Court. This is against the backdrop of the

earlier finding that the evidence of pw1 was aptly corroborated by the evidence of the medical doctor pw4 and his medical report Exhibit 1. Issue 2 is also resolved against the appellant.

In the result, the appeal is moribund and it is hereby dismissed. The judgment of the Court below delivered on 20th December, 2017 is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, Muhammed L. Shuaibu, JCA. wherein the appellant was found guilty of rape and sentenced to 10 years imprisonment without option of fine. The charge of rape was of a 7 year old girl contrary to Section 32 (2) of the Child Rights Law of Akwa Ibom State 2008.

The appellant’s contention in the instant case is that the sordid words used by PW1, the victim of the rape to describe the act of rape on her did not establish penetration which is a sine qua non to the proof of the offence of rape. To my mind there could be no clearer evidence of rape even with the unsworn evidence of PW1 particularly where, as in this case, the evidence is cogent, strong and

credible. The evidence of PW4, the medical doctor who examined PW1 confirmed the partial rupture of PW 1’s hymen which goes a long way to corroborate the evidence of pW1, the victim of rape in this case.

I also agree that the allegation of bias against the trial Court is without an iota of evidence.

I am of the ardent view that this appeal has no syntilla of merit and ought to be dismissed. I too dismiss it accordingly and affirm the judgment of the lower Court delivered on 20th December, 2017.

Appeal dismissed.

Appearances:

Kingsley Ogbu Esq. For Appellant(s)

A. Nyong Essien, PSC with him, B. O. Olaniyi, State Counsel, MOS Aks For Respondent(s)