Charles Ekpo & anor. v. The State (1976)

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O. MADARIKAN, J.S.C.

We now give our reasons for allowing this appeal on the 2nd of April, 1976.
The Appellants stood trial in the High Court, Calabar, on a charge of rape contrary to section 358 of the Criminal Code cap. 30 Vol.2 of the Laws of Estate states of Nigeria, 1963 applicable in the Cross River State. The particulars of the offence were that at 19, O’Dwyer Street, Calabar, on the 14th of September 1974 they had carnal knowledge of one Affiong Asuquo Okon without her consent.

At the trial, the Prosecutrix and five other witnesses testified for the Prosecution.  Each of the  Appellants also gave evidence and called the father of the Prosecutrix as a witness.

The incident took place in a room at 19, O’ Dwyer Street, Calabar.  Four boys and two girls were in the room from 7.30pm. till about 1a.m.  The four boys were the two Appellants, Maxwell Otudor (P.W.3) and Gabriel; and the two girls were the Prosecutrix (P.W.1) and Theresa Edem (P.W.5)
The 1st P.W. was the Prosecutrix.  She testified that after they had all looked at a photo-album in the room, the 1st Appellant switched off the light and demanded to have sexual intercourse with  her. Continuing her evidence, she said:-

“I cried and told the 1st Accused that he must escort me home.  When he refused, four of them came and held me,  lifted me up and placed me on the bed and had sex with me.  The first Accused was the person who had sexual knowledge of me”.

She shouted until the Police arrived at the scene. Gabriel then escaped through the ceiling and the others were taken to the Police Station.
After the last witness for the Prosecution had testified, leave was granted to the Defence to recall P.W.1.  This time, P.W.1 completely recanted her previous testimony.  She stated that when she was arrested by the Police, she told the Police that the 1st appellant had sexual intercourse with her consent.  The atmosphere which pervaded the scene was depicted by her as follows:-

“After the sexual intercourse, all of us chatted together, played and joked as usual.”
She was cross-examined extensively by the Court and maintained that she consented to having sexual intercourse with the 1st appellant because prior to the incident, he had given her N3.

The following note appears on the record immediately after the cross-examination of P.W.1 by the Court:-

“By Court:I do not believe this particular evidence of this witness.  She has been contaminated by the Accused persons”.

The 2nd Prosecution witness was Christopher Ndifor Obot.  He lived at 19, O’ Dwyer Street, Calabar.  At about 1 a.m. on the day of the incident, he heard someone crying in a room.  He and others knocked the door of the room and when it was not opened, he made a report to the Police.  When the Police arrived at the scene, the door was still locked; and, at the request of the Police, it was opened.  Two girls and three boys then came out of the room.

One of the boys in the room was Maxwell Otudor.  He testified as the 3rd Prosecution witness.  On the issue of consent, he said:-

“While the 1st Accused then switched off the light, and locked the door, He put the key into his pocket.  It was then that the 1st P.W. started to cry and said that she would like to go.  They said she would not go.  The 1st Accused then held her and threw her on his bed.  The other two boys helped him to pull off her pants.  The 1st Accused then had sexual intercourse with her followed by the 2nd Accused and then the boy who escaped when Police arrived at the scene.”

Another eye-witness was Theresa Edem.  She was the second girl in the room.  At the trial, she was the 5th Prosecution witness and her evidence was to the effect that the 1st appellant had sexual intercourse with P.W.1 by force.

The other witnesses for the Prosecution were Police Constables.