Edwin Ezigbo V. The State (2012)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal Holden at Abuja in appeal no. CA/A/61C/2007 delivered on the 8th day of January, 2008 in which the court dismissed the appeal of the appellant against the decision of the High Court of Niger State of Nigeria, Holden at Suleja in charge no NSHC/SD/1C/2004 delivered on the 16th day of December, 2005 in which the court convicted the appellant of the offence of rape and sentenced him accordingly. The instant appeal is therefore a further appeal against the decision of the said High Court.

The facts of the case include the following:-

On the 8th day of April, 2004 at about 4pm, PW1 saw her two daughters Ogechi and Chioma ages 8 and 6 years respectively in the company of the appellant. The daughters were holding ice cream. When PW.1 called the two girls, appellant changed direction and continued to walk away with the girls who also ignored their mother, PW.1.

PW.1 became apprehensive and ran after appellant and the girls. On seeing PW.1 running towards them, appellant abandoned the girls and took to his heels.

Later upon inquiring, the girls narrated how appellant used to lure them to his shop to have sexual intercourse with them and on one occasion he gave N30.00 to Ogechi and N10.00 to Chioma in return. The information was relayed by PW1 to her husband who reported the matter to the police.

The issue for determination as formulated by learned counsel for appellant, P. O. OKOLO ESQ, in the appellant brief filed on 7th April, 2010 is as follows:-

“Can it be said that the evidence of PW.5 that the disappearance of the hymen of the two children was caused by the penetration of penis into their vagina severally amount to sufficient corroboration of PW2’s evidence that the appellant had sexual intercourse with her”

On the other hand, learned counsel for the respondent, M. G. CHIROMA ESQ. in the brief of argument filed on behalf of the respondent on 30th August, 2010 formulated the following issue for determination, to wit:-

“Whether besides the evidence of PW.5 who introduced Exhibit 2, there are no other evidence corroborating the evidence of PW.2 to sustain the conviction against the appellant before the court”.

Looked at very closely, the two issues are almost the same except that the issue formulated by learned counsel for appellant emphasized on sufficiency of corroboration of the evidence of PW.2.

In arguing the issue, learned counsel for appellant submitted that the lower court was in error in holding that the evidence of PW.2, the unsworn evidence of a child was corroborated by the evidence of PW.5 – a medical doctor, as PW.5 never stated that it was the penis of appellant that penetrated PW.2’s vagina; that PW.5 never mentioned the appellant throughout his evidence as the person responsible for the penetration.

It is the further submission of counsel that the evidence of PW5 together with the medical report, Exhibit 2 which he tendered are not capable of corroborating the evidence of PW.2. Relying on the case of Okpanefe v. The State, (1969) ALL NLR 411 learned counsel submitted that though Exhibit 2 confirms the fact of rape of PW.2, it does not corroborate in any way PW.2’s story that it was the appellant that committed the rape and urged the court to resolve the issue in favour of appellant and allow the appeal.

On his part, learned counsel for respondent submitted that having regard to the totality of the evidence on record, particularly the evidence of PW.2 and PW.5 and Exhibits 1 and 2, the prosecution proved its case beyond reasonable doubt; that PW.2 testified that on the 8th day of April, 2004 appellant took her and her younger sister Chioma to his shade at old Minna Garage, Suleja where appellant asked her to lay on top of a chair while he pulled off his trousers and laid on top of her and put his penis inside her private part, resulting in her feeling pain while blood and white thing came out of her private part. Appellant later gave PW.2 N30.00 and warned her not to tell anybody about it; that Exhibit 2 shows that there was rupture in the hymen of PW.2 due to penetration by penal sharp (penis) as testified to by PW.5.