Boniface Adonike V. The State (2015)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal sitting in Benin delivered on 15th March, 2013 wherein the Lower Court affirmed the judgment of the High Court of Delta State which convicted and sentenced the appellant to six years imprisonment with six strokes of the cane for the offence of defilement.

As I can garner from the record of appeal, the facts reveal that on or about the 16th day of June, 2010, the appellant invited and requested a child of 5 years of age to buy pure (sachet) water for him. On her return, the appellant lured her into his room, pulled her pant and had carnal knowledge of her. The appellant was arrested and charged to court for prosecution. The charge read as follows:-

“STATEMENT OF OFFENCE:

COUNT 1:

Defilement punishable under Section 218 of the Criminal Code Cap. 48 Volume II, Laws of the Defunct Bendel State 1976 as applicable in Delta State.

PARTICULARS OF OFFENCE

Boniface Adonike (m) on or about the 16th day of June, 2010 in Issele-Uku Mkpitune Village within the Issele-Uku Judicial Division had carnal knowledge of one Iwebunor Gabriel (f) aged 5 years without her consent.”

At the trial High Court, the appellant denied the charge and pleaded not guilty to same. The prosecution called four witnesses. The appellant testified for himself and called no witness. Counsel for both the prosecution and defence addressed the court. At the end the learned trial judge convicted the appellant and sentenced him to 6 (six) years imprisonment and with 6 (six) strokes of the cane.

Not satisfied with the judgment handed down by the learned trial judge, the appellant appealed to the Court of Appeal, Benin Division. Without much ado, the appellant’s appeal at the Lower Court was dismissed. Still dissatisfied the appellant has appealed to this court.

Two notices of appeal were filed by the appellant on 20th March, 2013 and 3rd April, 2013 respectively. At the hearing of this appeal, the appellant abandoned the notice of appeal filed on 20th March, 2013 and adopted the one filed on 3rd April, 2013. The said notice has five grounds of appeal, out of which the appellant’s learned counsel, Ekeme Ohwovoriole Esq has distilled three issues for the determination of this appeal. The three issues are as follows:-

1. Whether the appellant’s trial and conviction for the offence of defilement, under section 218 of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State 1976, as applicable to Delta State, which the respondent began more than two months after the offence was committed, is not a nullity.
2. Whether the Lower Court did not wrongly affirm the trial court’s admission of Exhibit B, said to be the appellant’s extra-judicial statement and if the answer is affirmative, whether the trial court relied on the document to convict the appellant.
3. Whether the respondent proved the offence of defilement against the appellant beyond reasonable doubt.

In the respondent’s brief settled by O. F. Enenmo Esq., two issues are formulated as hereunder reproduced.

1. Whether having regard to the state of evidence before the court, the Court of Appeal was right in law when it affirmed the judgment of the trial court,
2. Whether the Lower Court erred in law when it affirmed the conviction of the appellant based on section 218 Criminal Code Law Cap. C.21 Law of Delta State.

I intend to determine this appeal based on the three issues formulated by the appellant, after all it is his appeal.

Arguing the first issue, the learned counsel for the appellant submitted that the appellant’s trial for the offence of defilement under Section 218 of the Criminal Code Cap. 48 Vol. II Laws of the Defunct Bendel State 1976 as applicable in Delta State was a nullity because the trial court lacked jurisdiction to entertain the charge which the prosecution began outside the period of two months prescribed for the respondent to begin the prosecution for the offence.

It is his contention that from the findings of fact by the court below that the trial of the appellant was commenced more than two months against as stipulated by Section 218 of the Criminal Code Laws of Bendel State 1976 as applicable in Delta State, the Lower Court ought to have allowed the appeal. Learned counsel faulted the reliance by the Lower Court on the case of Yabugbe Vs COP (1992) 4 NWLR (Pt.234) 152. According to him, the facts of the instant case are distinguishable from the facts in Yabugbe’s case and that the Lower Court was wrong the way it applied the principle in Yabugbe’s case (supra).

Learned counsel opined that a careful reading of Yabugbe’s case shows that the mere existence of another law under which the accused could have been charged is not enough to bestow legality on the trial. That in addition to the existence of another law, it must be shown that the accused and his counsel are not misled and no objection is raised to the defective charge and that there has been no miscarriage of justice. That in this case, the appellant raised an objection and an attempt to amend the charge was refused by the court saying that it would occasion injustice on the appellant.

It was a further argument of the appellant that following the trial court’s dismissal of the respondent’s application to amend the charge, the prosecution continued under the provisions of the Criminal Code of the Defunct Bendel State up to and including when the trial court delivered its judgment in the matter. Learned counsel submitted that beyond taking judicial notice of the laws of Delta State only at the ultimate stage of delivering judgment, the learned trial judge did not do anything with or show how those laws impacted on the charge that the respondent was prosecuting against the appellant. That merely stating that judicial notice was taken of the laws of Delta State, without demonstrating its effect, if any, on the trial, was not enough to validate the trial.

In conclusion, learned counsel opined that the issue in this appeal goes beyond the appellant merely understanding the charge and pleading thereto. That the pith of the issue lies in the fact that it was legally impossible to convict the appellant under the provisions of Section 218 of the Criminal Code of the Defunct Bendel State. It is his submission that however well the proceedings are conducted or not is a matter entirely extrinsic to the question of defect in competence of the court, citing the case of Karim V. N. A. (2001) 4 NWLR (Pt.758) 716 at 729 para H; Madukolu V. Nkemdilim (1962) 2 SCNLR 341. He urged that it be held that the trial court’s holding that the appellant understood the charge and pleaded “not guilty” cannot and did not breathe life into the offence that became moribund after the expiration of a period of two months from the 16th day of June, 2010 when the offence was said to have been committed.

In response, the learned counsel for the respondent submitted that the trial court recognized the fact that the appellant was charged under a repealed law but did not close her eyes to the existence of a similar provision in an existing law which is Section 218 of the Criminal Code, Laws of Delta State, 2008. He submitted that an appellate court cannot set aside the decision of a trial court brought under a repealed, moribund law of a state that is defunct unless it can be shown that the accused was in fact misled by such error or a miscarriage of justice has been occasioned. He placed reliance on the cased of Yabugbe V. COP (1992) 4 NWLR (pt.234) 152 and Section 166 of the Criminal Procedure Law Cap. C 22 Laws of Delta State, 2006.

On the submission by the appellant that he had raised an objection to his trial under a wrong law, the learned counsel for the respondent submitted that contrary to the provisions of Section 167 of the Criminal Procedure Law Cap. C.22 Laws of Delta State which requires him to raise such objection immediately after the charge has been read over to him, he raised it at the close of his final address. He further argued that the appellant’s quarrel in this case is that the trial court did not decline jurisdiction to determine this case having refused the prosecution’s application to amend the charge. He submitted that the issue for determination in this appeal is not whether the trial court had jurisdiction to determine the case but whether the conviction of the appellant is void in view of the fact that he was tried under the repealed law and convicted under an existing law. He urged this court to resolve this issue in favour of the respondent.

There is no doubt that the appellant herein was charged at the High Court of Delta State in 2010 with the offence of defilement contrary to Section 218 Vol. II Laws of the Defunct Bendel State, 1976 as applicable in Delta State. It is also a fact known to both parties that as at the time of the commission of the offence and arraignment of the appellant there was in existence the Criminal Code Law Cap. C 21. Laws of Delta State 2008. It is in evidence that when the prosecution realized its mistake, it brought a motion on notice to amend the charge to reflect the proper law against which the appellant committed the offence and under which he was standing trial but the learned trial judge refused to grant the application. The reason given was that such an amendment would work injustice on the accused person. But curiously, the learned trial judge took judicial notice of the existence of the Criminal Code of Delta State and used same to convict the appellant herein, an exercise he had earlier refused to act positively. Be that as it may, this is not an issue before this court. The main issue in this appeal to which issue No. 1 encapsulates is whether the conviction of the appellant is void in view of the fact that he was tried under the repealed law of the old Bendel State and convicted under the existing laws of Delta State.

Section 218 of the Criminal Code, Cap 48 Vol.II Law of the Defunct Bendel State, 1976 under which the appellant was charged states:

“218. Any person who has unlawful carnal knowledge of a girl under the age of eleven years is guilty of a felony, and is liable to imprisonment for life, with or without caning.

Any person who attempts to have unlawful carnal knowledge of a girl under the age of eleven years is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning.

A prosecution for either of the offences defined in this section must be begun within two months after the offence is committed.

A person cannot be convicted of either of the offences defined in this section upon the uncorroborated testimony of one witness.”

Now, the pith and substance of the above provision which is the kernel of this issue is that the prosecution of an accused who is alleged to have committed the offence of having unlawful carnal knowledge of a girl under the age of eleven years or an attempt to do so, must be begun within two months of the commission of the offence.

The appellant herein is alleged to have had unlawful carnal knowledge of the PW1 – a girl of five years, on or about the 16th of June, 2010. The trial of the appellant did not commence until November, 2010, clearly above the two months prescribed by the law under which the appellant was charged.

Ordinarily, the law would have been allowed to take its course. But that is not the case here. The learned counsel for the respondent both at the court below and in this court had relied on the case of Yabugbe V. COP (supra) and Section 166 of the Criminal Procedure Laws, Cap. C 22 Laws of Delta State. Under Section 218 of the Delta State Criminal Code Law Cap. C 21, 2008, there is no provision for time limit within which prosecution must commence in an offence of defilement. This is contrary to the requirement in the defunct Bendel State Law.

In the instant case, this is how it all started. On page 43, lines 15 – 23 of the record of appeal the learned trial judge held as follows:

“In respect of the law under which the accused was charged, I take judicial notice of the laws of Delta State that came into effect in 2008. This offence was committed on the 19/6/2010.

I am of the view that no miscarriage of justice has been occasioned by the accused pleading to Section 218 of the Criminal Code of the old law. The accused understood the charge against him and he pleaded NOT GUILTY to the charge.”

The Lower Court in its judgment on page 104 of the record agreed with the learned trial judge in the following words:

“I deeply perused the authority of Yabugbe V. COP (supra) relied upon heavily by the prosecution. The facts of that cased are not the same with the facts of this case. However, that authority clearly established that where an accused person was convicted under a repealed law of a defunct state, but under an existing law, an appellate court cannot set aside such a conviction”

Every principle of law is meant to streamline and clarify issues arising from any law in force and particularly the particular provision in question. It is also meant to guide the court, litigants and counsel. This court has, in its wisdom laid down the principle that an appellate court will not set aside the conviction of an appellant merely on the complaint that he was tried and convicted under a repealed law if at that time there was an existing law which he should have been tried and convicted. That principle of law is as sound today as it was in 1992 when the case of Yabugbe V. COP (supra) was decided by this court. Although the facts of that case are not the same as in the instant appeal, yet the principles laid down in it cannot be departed from in this case.

The learned Justice Akpata, JSC who wrote the lead judgment held on page 172 paragraph of the law report cited above as follows:-

“I do not agree with the learned counsel that the conviction of the appellant is null and void. Section 22 (10) of the 1963 Constitution was not breached. The Section states that no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law. The offence for which the appellant was convicted is defined and the penalty therefore is prescribed in a written law. The written law at the time of trial was either the 1959 law or the 1978 law. The wording of Section 355 of the 1978 Law is ipsissmis verbis with that of Section 296 of the 1959 Law”

On the same page, His Lordship continued:

“Section 166 of the Criminal Procedure Act states that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission. I will like to sum up thus: where an offence known to law is prescribed in a charge and the penalty for the offence is prescribed in a written existing law and the charge is erroneously brought under a wrong section of an existing law or under a law which has been repealed or has ceased to exist, and both the accused and his counsel are not misled and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice.”

Let me also bring in the views expressed in the matter by His Lordship, M. L. Uwais, JSC (as he then was) on page 176 of the report. His Lordship stated emphatically that:

“The offence of assault is common, though to a different degree, to both criminal codes. See Section 351 and 296 respectively. It is, therefore, a fallacy and idle to argue that the appellant was convicted of an offence that was not known to law or that the charge of unlawful assault was based on a non-existent law. It does not matter as to when Cap.30 came into force. The fact is that the appellant has not shown that there was a time when neither code applied to the area that constitute Oyo State.

Moreover, a conviction under the wrong law is not fatal if there is the provision of another law under which conviction can stand – See Falobi V. Falobi (1976) NMLR 169 at 177 and Henry Stephens Engineering Ltd v. Complete Home Enterprise Ltd. (1987) 1. NWLR (pt.47) 400- at 448 – unless it can be shown that the accused was in fact misled by such error or a miscarriage has been occasioned by the reason of the error – See Section 1-66 of the Criminal Code Law, Cap 31 Laws of Oyo State, 1978.”

As was rightly observed by the court below, Section 166 of the Criminal Code Law, Cap 31, Laws of Oyo State alluded to in the quotation above is in pari materia with Section 166 of the Criminal Procedure Law Cap. C. 22 Laws of Delta State, 2006. Also, Section 22 (10) of the 1963 Constitution made reference to in his judgment by Akpata, JSC is in pari materia with Section 36 (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides that:

“36 (12) Subject as otherwise provided by this Constitution a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of the law”

I have had to bring to the fore the extant laws and principles governing the appellant’s case in this appeal in order to make it very crystal clear the position taken by both the trial court and the court below. There is no doubt that the appellant was arraigned, tried, convicted and sentenced for the offence of defilement under Section 218 of the Criminal Code, Cap. 48, Laws of the Defunct Bendel State 1976 which had ceased to exist in Delta State in 2010 when the appellant committed the offence. As at that time, the extant law in Delta State was the Criminal Code, Cap C. 21, Laws of Delta State which took effect from 2008. Section 218 of the extant law defines the offence of defilement and prescribes punishment for the same offence. The provision is in pari materia with Section 218 of the Criminal Code, Cap. 48 Laws of the defunct Bendel State 1976 which was applicable to Delta State before it enacted the 2008 version of the law.

Although the appellant was tried under a repealed law, there was indeed in existence a written law in Delta State which defined the offence of defilement in Section 218 thereof and also prescribed the punishment for it as required under Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The said 2008 Criminal Code of Delta State (supra) has no provision for time limit within which to initiate a criminal prosecution against a person accused of the offence of defilement.

There is a window of opportunity or a way of escape for an appellant who complains that he was tried and convicted under a repealed law. The first opening is for the appellant to show that he was misled or that his counsel was misled in the process of being tried under the repealed or non-existent law. OR that there was a miscarriage of justice arising from the trial. Unfortunately in this case, the appellant failed woefully to show that he was so misled or that there was any miscarriage of justice.

In the circumstance of this case, and having regard to the principle enunciated in this court in the case of Yabugbe V. COP (supra) and relying on Section 36 (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 166 of the Criminal Procedure Law, Cap. C 22 Laws of Delta State, 2006, I am satisfied that both the trial court and the court below were right to rely on Section 218 of the Criminal Code Law, Cap. C 2l Laws of Delta State 2008 to convict and sentence the appellant. This is so because as at 2010 when the appellant was arraigned, tried, convicted and sentenced for the offence of defilement, there was in existence a written law to wit: the Criminal Code Law Cap. C 21 Laws of Delta State 2008 and in particular S.218 thereof which defined the said offence and prescribed punishment for it.

I see no merit in this issue and I have no hesitation in resolving it against the appellant. It does not avail him at all. So be it.

On page 13 of the appellant’s brief, the learned counsel for the appellant submits as follows:

“In the light of the findings by the Lower Court that the trial court did not rely on Exhibit B to convict the appellant the appellant hereby abandons ground 3 of the notice of appeal and our issue two herein. See page 111 lines 11 – 12 of the record of appeal where the Lower Court held as follows:

“Hence the conviction of the appellant was predicated mainly on Exhibit A and the evidence of PW3 and not Exhibit B”

Having abandoned ground three of the grounds of appeal, and issue two distilled therefrom, both the said ground 3 and issue two distilled from it, are hereby struck out. I am now left with issue No. 3.

In this last issue the appellant is asking this court to determine whether the respondent proved the offence of defilement against the appellant beyond reasonable doubt. For this, the learned counsel for the appellant submitted that the prosecution failed to provide evidence of corroboration before the appellant was convicted. According to him, the piece of evidence relied upon by the trial court and affirmed by the Lower Court was not the type required to corroborate the evidence of the prosecution. He cited the case of Iko V. The State (2001) 14 NWLR (pt.732) 221. and Rabiu V. State (2005) 7 NWLR (Pt.925) 491, at 511 Paras B -F.

It was the argument of learned counsel that Exhibit A, the medical report did not show that the prosecutrix i.e. PW1 had been penetrated by the appellant. Exhibit A, according to him, was not good corroboration.

Learned counsel further contended that the respondent’s case was replete with material contradictions especially on the date the offence was committed. According to him whereas the information stated that the offence took place on or about 16/6/2010, PW1 said it was on 20/6/10 and to make it worse, PW3 and PW4 said it was on 19/6/10. Learned counsel submitted that three dates put forward amount to material contradiction. He relied on the case of Ogoala V. State (19921 1 NWLR (Pt.175) 509 at 523. Learned Counsel concluded that the three dates should create doubt in the mind of the court which ought to be resolved in favour of the appellant, relying also on the case of Akpabio V. State (1994) 7 NWLR (Pt.359) 635 at 670. He urged this court to resolve this issue in favour of the appellant.

In his response, the learned counsel for the respondent, after reviewing the evidence led at the trial and the judgment of the two courts below, submitted that Exhibit A is medical result of examination conducted on the PW1 and as such, there is no way the name of the appellant could have featured as he was not the person examined by the PW3 -the Medical Doctor.

Learned counsel referred to the uncontradicted evidence of the PW1 that it was the appellant who forced her to have carnal knowledge of her. That the evidence of PW3 and the tendering of the medical report Exhibit A, is in line with laid down principles of law on the issue, relying on the case of Pasu V. State (2011) 39 LRCN (52 at 76) and Ogunbayo v. State (2007) 1 NWLR (Pt.1035) 157.

On the issue of contradiction in date, learned counsel submitted that the said contradiction did not affect the credibility of witnesses and their evidence on the core issue of the defilement of the minor. According to him, where there are differences in the narration of events by the prosecution witnesses, especially as to recounting or recollecting the date of events which are mere discrepancies. It will not avail the accused because some of such discrepancies are expected as being natural. He placed reliance on the cases of Golden Dibie & Anor V. The State (2007) 3 SCNJ 160 at 170 & 178, John Ogbu & Anor. V. State (2007) 2 SCNJ 319 at 334 – 335, Alpa V. The State (2010) 8 LRCN 70 and, Onubogu V. State (1974) 9 SC 1.

He then urged this court to hold that the prosecution proved the offence of defilement against the appellant beyond reasonable doubt. He also urged this court to resolve this issue against the appellant.

My Lords, I think a most convenient place to start in resolving this issue is to state categorically that in criminal proceedings, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge are proved by evidence. It has to be noted that under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused person proving his innocence before a law court. The duty of the prosecution is to prove the charge against an accused person beyond reasonable doubt. I must emphasize that it is not proof beyond every shadow of doubt but beyond reasonable doubt. See Uche Williams V. The State (1992) 10 SCNJ 74, Yongo V. COP (1992) 4 SCNJ 113, Ogundiyan V. The State (1991) 3 NWLR (Pt.181) 519.

In this appeal, the learned counsel for the appellant had argued extensively that there was no corroborative evidence upon which the learned trial judge relied upon to convict the appellant. Let me approach the record of appeal and see the evidence the learned trial judge used to convict the appellant. On page 44 of the record, the learned trial judge held as follows:

“I am satisfied from all the evidence led most especially the evidence of PW1 and the Medical evidence of the Doctor that sexual intercourse had occurred. Penetration has also been proved by the evidence of rupture of the hymen, Exhibit A is the Medical Report – “A young girl in sail mood with blood stains on the vulva and around the hymen, bruises around the vagina especially posteriorly. Child has a waddling gait (sway in walking as a duck) a diagnosis of rape forceful penetration made.

The medical report among other things confirmed the bruises and the torn hymen. In this case of outright denial by the accused, the evidence of corroboration I have found is the medical evidence showing injury to PW1’s private part i.e. Exhibit “A” and the testimony of PW3″.

The grouse of the appellant is that although the PW3 and his medical report shows that the prosecutrix was completely bruised and ravaged, the report did not mention the appellant as the one who violated the young girl. I think the appellant has made a mistake here. The examination of the PW1 by the medical doctor and the medical report generated therefrom was meant to confirm whether there was indeed sexual intercourse on the minor as alleged. The Doctor was not present when the offence was committed. Therefore, he would not include in the report that it was the appellant who had sex with the young girl.

It is trite that in a charge of rape or unlawful carnal knowledge of a female without her consent, the prosecution has a bounded duty to prove the following ingredients:

a. that the accused had sexual intercourse with the prosecutrix;

b. that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat intimidation, deceit, or impersonation;

c. that the prosecutrix was not the wife of the accused;

d. that the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not;

e. that there was penetration.

In the instant case, it must also be shown that the prosecutrix was below the age of eleven years.

The PW1 (the victim) in this case, clearly identified the appellant as the man who forcefully had carnal knowledge of her. The medical report shows that there was penetration. Also, the medical doctor’s evidence supports the fact that the prosecutrix was indeed violated. Both the evidence of the medical doctor and the medical certificate support the evidence of the PW1 that the appellant had unlawful carnal knowledge of her.

It was contended by the appellant that there was nothing to corroborate the evidence of the prosecutrix. This court, in Oludotun Ogunbayo v. The State (2007) 8 NWLR (Pt.1035) 157 held that corroboration is not a technical term or art, but means no more than evidence, tending to confirm, support and strengthen other evidence sought to be corroborated. It was further held that it 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. See also Iko V. The State (2001) 14 NWLR (Pt.732) 221.

In the instant case, the prosecutrix gave direct evidence against the appellant. Both the PW3 (the medical Doctor) and Exhibit A (the medical report) support the case of PW1 that she was violated by the appellant. I agree with both the trial High Court and the Court below that these two pieces of evidence support and confirm the evidence of PW1 in this respect. There is no doubt about this.

The learned counsel for the appellant made much weather on issue of contradiction of prosecution witnesses on the date the offence was committed. In this case, the learned trial judge held, and was affirmed by the court below that the piece of evidence by the PW2 that the offence occurred on 20th June, 2012 which she said was a Saturday, instead of Sunday, was a discrepancy and did not destroy the credibility of the PW2. I have no reason to disagree with the conclusion by the two courts below on this issue. For a contradiction to affect the case of the prosecution, it must be material and go to the root of the charge against the accused person. This court has held severally that where there are differences in the narration of events by prosecution witnesses, especially as to recounting or recollecting the date of events, which are mere discrepancies, that would not avail the accused person, because some of such discrepancies are expected as being natural. See John Ogbu & Another V. The State (2007) 2 SCNJ 319, Golden Dibie & Ors V. The State (2007) 3 SCNJ 160. There is no doubt that the prosecution proved the charge against the appellant beyond reasonable doubt. This issue, accordingly is resolved against the appellant.

The appellant herein was sentenced to six years imprisonment with hard labour and six strokes of the cane. I wish it was more than this and unfortunately, there is no appeal against the sentence. This type of case should be an opportunity for sentencing authorities to really come out vehemently to show that society abhors the type of conduct exhibited by the appellant on this innocent young girl of just five (5) years. Imagine the trauma (both physical and mental) the young girl was subjected to as a result of the insatiable urge of the appellant for mischief which he has invoked from the pit of hell. Violating a girl of just five years by the appellant in the manner he did is condemnable, barbaric, immoral and is devoid of any reasoning whatsoever. I wish I have the power to increase his punishment. I could have done it in order to serve as deterrence to would-be rapists. Be that as it may, if he does not repent, he may not be as lucky as he was in this case.

Having said this and in view of the fact that the two issues have been resolved against the appellant it remains to be stated that this appeal is devoid of any scintilla of merit and is hereby dismissed. I uphold the decision of the court below which affirmed the judgment of the trial High Court.

Appeal dismissed.

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SC.168/2013