Okem Benjamin V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment)

This criminal appeal is against the trial, conviction and sentence of the Appellant vide the judgment of the High Court of Cross River State sitting in Calabar, delivered by Elias Abua, J, on the 25th of November, 2015, wherein after a considered judgment, the Appellant was sentenced to Life Imprisonment,

BACKGROUND FACTS:

The Appellant was charged with the offence of Rape, contrary to Section 358 of the Criminal Code, Cap. C.16, Vol. 3, Laws of Cross River State, 2004. The Appellant was said to have raped a 12 year old girl in the month of December, 2013. The case as presented by the prosecution at the trial Court was that the victim was alone in the house, when the Appellant sneaked into the house through the back door into the kitchen where the victim was cooking. The Appellant was said to have touched the victim’s breast and buttocks. She protested and threatened to report to her uncle. The Appellant then left the house. On another day while the victim was also alone in the house, the Appellant came in again, this time requesting for water to drink.

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When the victim brought the water, the Appellant who at that time was sitting in the living room, rather than collect the water, pushed the victim unto a long sofa and raped her. The Appellant was said to have threatened the victim with beating should she dare inform her uncle about the incident.

The Appellant admitted having sex with the victim, but stated that the victim consented to the carnal knowledge he had of her.

At the conclusion of hearing, the trial Judge in his judgment believed the case of the prosecution and disbelieved the defence of consent presented by the Appellant. He then convicted and sentenced the Appellant to Life Imprisonment. This appeal is predicated on the conviction and sentence of the Appellant.

Counsel for the Appellant, Chijioke O. P. Emeka Esq. distilled three issues for determination thus:

?(1) Whether the Learned trial Judge was right to convict the Appellant of Rape contrary to Section 31 of the Child Rights Act 2003, which excludes the defence of consent when the Appellant was charged with Rape contrary to Section 358 of the Criminal Code of Cross River State which includes the defence of

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consent?

(2) Whether the trial of the Appellant for Rape contrary to Section 358 of the Criminal Code, an offence which includes the defence of consent but excludes age-limit, and his conviction for Rape based on Section 31 of the Child Rights Act which excludes consent but includes age-limit, did not lead to an unfair trial which occasioned a miscarriage of justice?

(3) Whether the prosecution proved the offence of Rape contrary to Section 358 of the Criminal Code with which the Appellant was charged beyond reasonable doubt.”