Dagogo Harry Ipalibo V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A.:(Delivering the Leading Judgment)

On 28th January, 2013 the High Court of Rivers state holden at Bori convicted the appellant and one Yorkpara Augustine for the offence of rape contrary to Section 358 of the Criminal Code Cap 37, Vol. 2, Laws of Rivers state of Nigeria, 1999. Mr. Yorkpara Augustine was separately charged and convicted for assault occasioning harm contrary to Section 355 of the said Criminal Code of Rivers State.

The rape was allegedly committed on 11th March, 2008 at 20 Kogam Bori that has several apartments or flats. The charge does not state the material time the rape was allegedly committed.

The statement and the particulars of the offence of rape for which the appellant and Yorkpara Augustine were charged, convicted and sentenced read thus –

STATEMENT OF OFFENCE: COUNT 1

RAPE-contrary to Section 358 of the Criminal Code (Cap. 37 Vol.2, Laws of Rivers State of Nigeria, 1999)

PARTICULARS OF OFFENCE

DAGOGO HARRY IPALIBO and YORKPARA AUGUSTINE on the 11th day March, 2008 at No. 20 Kogam Street, Bori in the Bori Judicial Division did had unlawful carnal knowledge of one Mercy I. Nwahiri (sic).

This charge, seriously bereft of all material particulars to sustain a charge of rape, suggests that the offence of rape to wit: having “unlawful carnal knowledge of one Mercy I. Nwahiri” was jointly committed by the two named accused persons at the same time. The court below did not raise any eye brow about the practical or human impossibility of two men having carnal knowledge of one woman at the same time.

In criminal proceedings the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. This, the prosecution can only achieve by ensuring that all the necessary and vital ingredients of the charge are proved by evidence. See YOUNG v. COMMISSIONER OF POLICE (1992) 4 SCNJ 113. It is a different matter altogether when the prosecution, themselves, make things difficult and impossible even at the commencement of the proceedings. Volenti non fit injuria should then be the rule.

In every criminal proceeding the first duty of the prosecution is to lay or draw up the charge or allegation constituting a criminal offence with sufficient particulars of the elements or ingredients of the offence. Since the prosecution have the bounden duty to establish the ingredients of the offence with which the accused stands charged, in order to sustain a conviction; all the ingredients constituting the alleged offence must be stated in the charge.

By stating in detail the ingredients of the offence in the particulars of the offence the basic duty imposed on the prosecution by Section 36 (6) (a) and (b) of the Constitution would have been discharged. The accused can not be convicted for an offence outside the contents of the charge.

All I am laboring to say, my Lords, is that the duty or burden on the prosecution to prove the charge or ingredients of the offence beyond reasonable doubt means also that the ingredients of the offence must be stated in the charge and supported by the proofs of evidence, and the evidence eventually. This is a non-negotiable right of the accused person by dint of Section 36 (6) (a) and (b) of the 1999 Constitution that state:

36. (6) Every person who is charged with a criminal offence shall be entitled to

– (a) to be informed promptly in the language that he understands and in detail the nature of the offence,