Ndewenu Posu & Anor V. The State (2011)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This appeal is against the judgment of the Ibadan Court of Appeal delivered on 11th day of February, 2010 affirming both the conviction and sentence passed on the Appellants by the trial High Court of Ogun State, Ilaro Judicial Division.

The Appellants, as accused persons, on 15th day of October, 2008, were arraigned before the trial court on two counts charge of – conspiracy to commit a felony, to with Rape and Rape contrary to section 516 and 358 of the criminal Code Cap 29, Laws of Ogun State of Nigeria respectively.

After the two count charges were read and explained to the accused persons they pleaded not guilty. At the trial the prosecution called four witnesses and tendered five exhibits. At the close of prosecution’s case, the Appellants gave evidence in their defence without more. Thereafter both the prosecution and the defence counsel addressed the trial court. In his well considered judgment the learned trial judge found the appellants guilty and were convicted and sentenced to one and three years respectively for conspiracy to commit rape and rape itself.

Not being satisfied with the judgment of the trial court, the Appellants filed an appeal at the Ibadan Division of the Court of Appeal. On 11th February, 2010, their appeal was dismissed.

By the leave of the court of Appeal given on 15th day of April, 2010, the appellants further filed separate Notices of Appeal to this Court dated and filed on 15th day of April, 2010. The two Notices of Appeal containing identical and two grounds of appeal without the particulars read thus:

GROUND ONE:

The learned Justices of the Court of Appeal erred in law when they held that PW1 “on the day of the incident neither aid or abet or assist the 1st and 2nd accused/appellants in their dealings with PW2 on the day of the incident” and therefore not accomplice.

GROUND TWO:

The learned Justices of the Court of Appeal erred in law when they held that penetration which is an essential ingredient of the charge of Rape was proved.”

Hence the present appeal is against the affirmation of the conviction and sentence of the appellants by the Court of Appeal. The Appellants identified two issues from the two grounds of Appeal in their brief for the determination of the appeal as follows:

“1. Whether penetration an ingredient factor in a charge of RAPE was proved in this case.

2. Whether PW7 is not an accomplice to put his evidence and that of the complainant under caution that requires corroboration.”

The Respondent on other hand, couched slightly different their two issues for determination thus:

“1. Whether prosecution proved the charge of conspiracy and rape against the Appellant beyond reasonable doubt.