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.
Turning to the submission of counsel for appellant to the effect that neither Exhibit 2 nor pw.5 linked appellant with the commission of the offence, learned counsel submitted that the gist of the offence of rape is penetration which has been established in this case; there is no doubt that the offence of rape was established but what appellant disputes is the fact that he had not been linked with the commission of the offence as the offender.
It is the further contention of counsel for respondent that evidence of PW.2, an unsworn evidence of a child needed corroboration to ground a conviction and that in the instant case such corroboration exists in the evidence of Pw.5 and Exhibit 2, that the acts of the appellant in running away upon being confronted by PW.1 after buying the children ice cream and zobo together with appellant going to plead with the parents of the girls constitute further evidence of corroboration of the evidence of PW.2 to the effect that appellant raped her and her younger sister.
Finally counsel urged the court to dismiss the appeal and affirm the conviction and sentence of appellant.
It is settled law that for the prosecution to sustain a conviction against the appellant under section 283 of the Penal Code, the following ingredients of the offence must be established by evidence.
(i) That the accused had sexual intercourse with the woman in question;
(ii) That the act was done in circumstance envisaged in any of the five paragraphs of Section 282(1) of the Penal Code;
(iii) That the woman was not the wife of the accused; or if she was the wife, she had not attained puberty;
(iv) That there was Penetration.
However, Section 282(1) of the Penal Code provides as follows:-
“A man is said to commit rape who save in the case referred to in subsection 2 had sexual intercourse with a woman in any of the following circumstances:-
(a) Against her will,
(b) Without her consent,
(c) With her consent, when her consent has been obtained by putting her in fear of death or hurt.
(d) With her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married,
(e) With or without her consent when she is under fourteen years of age or of unsound mind.”
Looking at the totality of the case as presented and the defence thereto, it is very clear that the fact that Pw 2 was raped is not in dispute at all. It is in fact not being disputed by appellant. What appellant is contending is that he has not been linked with the commission of the offence in question by the evidence on record; particularly Exhibit 2 – the medical report and the evidence of PW.5, the medical doctor who examined PW.2 and also testified at the trial.
Corroboration in respect of the offence of rape is evidence which tends to show that the story of the prosecutrix that the accused committed the crime is true – See Sambo v. State (1993) 6 NWLR (Pt 300) 399: Upahar v. State (2003) 6 NWLR (Pt 816) 230.
Corroboration need not consist of direct evidence that the accused committed the offence charged, nor need it amount to a confirmation of the whole account given by the witness/prosecutrix. It must, however, corroborate the said evidence in some respects material to the charge in question. It is also settled that corroborative evidence must in itself be a completely credible evidence.
What did the trial court which heard the evidence find At page 98 of the record the court found/held as follows, inter alia:-
“…the testimony of PW.2 is that accused had sexual knowledge of PW.2. PW.2 testified that accused lied on her and then had sex with her by putting his penis into her yash. The learned counsel to the accused in his written sum-up contended that in general penlance buttock is referred to as Yash.
I am of the view that since the defence is aware that “yash” means buttock and since PW.2 a girl of tender age has described her own yash as being in front, one can reasonably assume that her yash which is in front is her private part. Since PW.2 gave evidence to the effect that the accused put his penis in her private part and blood and white liquid came out of her body, I am satisfied that the accused person has sexual knowledge of PW.2 and that there was penetration…
PW.4 (5) the medical doctor who medically examined PW.2 and her junior sister Chioma Elechi found that the hymens of the two of them were not intact. He expressed the opinion that the disappearance of the hymen might have been caused by penetration into the vaginas and that the vaginas of the two girls must have been penetrated by penis severally.
PW.4 said that severally means more than two occasions. PW.4 later tendered the medical report which was admitted as Exhibit 2. PW.4 wrote in part in Exhibit 2 that he made an assessment of sexual exploitation by a man on the two children.
In view of the testimony of pw.4 that he made an assessment of sexual exploitation by a man on the two children, and since according to PW.2 it was the accused that had sexual intercourse with her, I am satisfied that the above testimony of PW.4 and Exhibit 2 sufficiently corroborated the testimony of PW.2 that accused had sexual intercourse with her…”
The question that follows is what is the reaction of the lower court to the above findings of fact by the trial court
At page 110 of the record, the lower court held as follows, on the issue as to whether there was corroboration of the evidence of PW 2.
“The evidence of Pw.4 a medical doctor who examined Pw.2 and her sister made an assessment of sexual exploitation by a man on the two children. He found that the disappearance of the hymen of the two children was caused by penetration of penis into their vaginas severally – meaning more than two occasion.
I confirm the opinion of the learned trial Judge that this piece of evidence of PW.4 sufficiently corroborated the evidence of PW.2 that the appellant had sexual intercourse with her…No separate medical examination is required to be conducted on the appellant for the purpose of linking him with the commission of the crime. Lack of medical examination on him immediately after the incident is not fatal to the prosecution”.
From the above findings it is clear that the lower courts made concurrent findings of facts in relation to the issue of corroboration in particular. I have carefully gone through the record and am of the considered view that the said findings are supported by the evidence before the court and consequently are not perverse.
It is settled law that this court, the Supreme Court of Nigeria does not make a practice of setting aside concurrent findings of facts by the lower courts except where such findings are not supported by the evidence on record or are perverse etc, etc. In the instant case, learned counsel for appellant has not demonstrated that the concurrent findings of fact in relation to corroboration is perverse so as to make it necessary for this court to set same aside. See Awoniyi v. Shooleke (2006) 8NJSC 34 at 49: Omoboriola v. Military Governor of Ondo State (1998) 14 NWLR (Pt. 584) 89 at 107.
The above being the case, it is clear that the issue under consideration is without merit and is accordingly resolved against appellant.
In conclusion appeal is unmeritorious and is consequently dismissed by me.