Edet Okon Iko Vs The State (2001)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

The appellant, Edet Okon Iko, was charged with the offence of rape contrary to section 358 of the Criminal Code of the then Cross River State. He was tried by Nkop J. (as he then was) at Uyo High Court in the Uyo Judicial Division. He was found guilty of the offence at the end of the trial and was sentenced to 7 years imprisonment with hard labour. He appealed to the Court of Appeal Calabar which heard and dismissed his appeal. He now appeals to this court.

The facts of this case as I understand them would appear to be as follows; PW2, Asuquo Etim Nyong, is the father of PW1, Grace Asukwo Etim, the prosecutrix and victim of the offence. On 2nd of May 1982, PW2 who was then living at Creek Town, Calabar with his family handed over his daughter PW1, to the appellant, a taxi driver, to take her to Uyo. PW1 was then a student of the Christian Secondary Commercial School, Uyo. PW2 told the appellant to drop PW1 at Itam junction. He gave the appellant N5 and asked him to give P.W.1 N1 on dropping her at Itam Junction so that she could use the amount for her transport fare to a house at Uyo before proceeding to the school.

On that day, the appellant arrived at Uyo at about 6 pm. He did not drop PW 1 there but took her with other passengers to Ikot Efre Itak village where he dropped all the passengers except PW1. He came back to Uyo with PW1 where they arrived at 8 pm. PW1 said that on their way back to Uyo from Ikot Efre Itak village, the appellant asked her to spend the night in his house at Uyo that night. She said no; but the appellant drove his vehicle, with her to his house at No.1 Effiong Ukpong Street. There, P.W.1 refused to enter the house, came out of the vehicle, removed all her luggages from the vehicle (comprising of a bag of gari, a bag containing books and her clothes) and wanted to take a motor cycle to her house. The appellant took back the luggages into his vehicle and promised to take her direct to her house at Akpan Etuk street. PW1 then entered the vehicle and the appellant took her to Akpa Essien street instead of Akpan Etuk street, and asked her to come down and go home. PW1 said she then cried and begged the appellant to take her home. It was raining heavily at this time. The appellant wound up the glasses of the vehicle doors and locked the vehicle with only him and PW1 inside. The appellant struggled with PW1 inside the vehicle and finally over powered her, removed her pant and had sexual intercourse with her. He then drove her back to his house where he again off-loaded her luggages and put them in his house. He told PW1 to wait for him as he was going to park his vehicle. He then drove away. This was after 9.00 p.m.

PW1 then ran out of the house (leaving her luggages in the appellant’s house) and entered No.5 Effiong Ukpong street (appellant’s neighbours). PW1 said she narrated her ordeal to a woman (PW4) and her husband whom she found in the house where she slept until the following morning. The following morning PW1 reported the incident to her father PW2, who in turn reported the matter to the Police in Uyo and the appellant was later arrested. This is the gist of what happened in this case as narrated by the witnesses at the trial.

In this court, the parties filed and exchanged briefs of argument as required by the rules of court. The appellant raised only one issue for determination of this court which reads:-

“whether the learned Justices of the court below were right in holding that from the evidence adduced at the trial court, the testimony of PW1 contained no serious contradictions and was only amply corroborated in all material respects including the question whether or not there was consent.”

For the respondent, 5 issues were formulated as follows:-

“1. Whether there is a material contradiction in the evidence of PW1 and PW2 in respect of the prosecution’s case sufficient in law to impugn the appellant’s conviction.

2. Whether there is material contradiction in the evidence of PW1 andPW4 in the prosecution’s case sufficient in law to impugn the appellant’s conviction.
3. Whether in the circumstances of this case, failure to call a medical Doctor by the prosecution to testify is sufficient in law to impugn the appellant’s conviction.
4. Whether the evidences (sic) of PW1 was sufficiently corroborated so as to merit the conviction of the appellant.
5. Whether in the circumstances of this case, the conduct of PW1 amounts to consent.”

Looking at the grounds of appeal filed by the appellant in his notice of appeal in this case, it is clear to me that the only issue raised by him was properly distilled from the grounds of appeal.

On the respondent’s issues, it appears to me that issue 3, was not supported by any ground of appeal filed by the appellant and since there was no cross appeal by the respondent, that issue cannot be argued in this appeal and is hereby struck out. The other 4 issues of the respondent can properly be argued together as set out in the only issue raised by the appellant.

The charge against the appellant in the trial court reads:-

“STATEMENT OF OFFENCE RAPE CONTRAY to section 358 of the Criminal Code. PARTICULARS OF OFFENCE

EDET OKON IKO on the 2nd day of May, 1982 at Akpan Essien Street, Uyo in the Uyo Judicial Division had carnal knowledge of GRACE ASUQUO ETIM without her consent.”