Alex Ivwighre V. The State (2008)

LawGlobal-Hub Lead Judgment Report

JIMI OLUKAYODE BADA, J.C.A.

This is an appeal against the Judgment of Delta State High Court, Sapele Judicial Division in Charge No: HCI/27C/2014 ? THE STATE VS ALEX IVWIGHRE delivered on the 20th day of June, 2017, wherein the trial Judge convicted the Appellant on counts of Rape and Conspiracy and sentenced him to 10 years imprisonment on each of the counts without option of fine. The terms of imprisonment were to run concurrently.

Briefly, the facts of the case, according to the prosecution, are that the Appellant and one other still at large, broke into the house of Emomo Timi James and demanded for the keys to her husband?s motorcycle. It was stated that they forcefully collected her handset and dragged her to an uncompleted building behind Erhijere Primary School where she was raped by the Appellant who was wearing a mask as at the time the offence was committed. The Appellant removed his mask after the incident and was recognized by the victim with the aid of light from surrounding buildings. The prosecution called two witnesses and tendered in evidence two exhibits.

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?The Appellant in his defence denied the charge. He stated that he did not rape the victim. He did not call any witness.

At the conclusion of the trial, the learned trial Judge, in a considered Judgment, convicted the Appellant of rape and conspiracy to commit armed robbery and discharged him on the offence of robbery.

The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court.

?The Learned Counsel for the Appellant formulated four issues for the determination of the appeal. The issues are set out as follows:-
(1) Having regard to the evidence adduced, whether the Appellant was the person who raped Emomo Timi James on the 4th day of February, 2014. (Distilled from Grounds 3 & 4).
(2) Whether the conviction and sentence of the Appellant for Rape and Conspiracy is justifiable, having regard to the evidence adduced. (Distilled from Grounds 1, 2, 7 and 9).
(3) Whether the learned trial Judge was right in ascribing probative value to Exhibit ?B?, a medical report as evidence of corroboration that the Appellant raped Emomo Timi James. (Distilled from Ground 8).
(4) Whether there are

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inconsistencies and doubt in the evidence of the prosecution witnesses and whether the learned trial Judge was right in failing to resolve the doubt in favour of the Appellant. (Distilled from Grounds 5 & 6).

The Learned Counsel for the Respondent, on the other hand, formulated a sole issue for the determination of the appeal. The said issue is set out as follows:-
?Whether having regard to the state of evidence before the Court, the learned trial Judge was right when he held that the prosecution proved the offence of rape and conspiracy to commit a felony to wit robbery against the Appellant beyond reasonable doubt.?

At the hearing of the appeal, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Delta State High Court delivered on 20/6/17. The notice of appeal was filed on 12/7/17. The record of appeal was transmitted on 28/7/2017. The Appellant?s brief was filed on 9/8/17, but it was amended and filed on 15/9/17. The said amended Appellant?s brief was deemed as properly filed on 19/1/2018.

?The Learned Counsel for the Appellant adopted and relied on the said amended

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