Francis Okpanefe Vs The State (1969)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

In Charge No. NEM/64C/1969, the accused was convicted in the High Court at Maiduguri by Hague, Ag. J. on the 29th August, 1969, of rape on the 1st August, 1968, contrary to section 282(1) (e) of the Penal Code and of attempted rape on the 8th August, 1968.

On the 27th November, 1969, we allowed his appeal, set aside his convictions and sentences of four years imprisonment imposed on each count, entered a verdict of acquittal and discharged him, and we now give our reasons for so doing. The complainant (1st p.w.), who was found by the learned trial judge to be a girl aged twelve years at the time of the alleged offences, in her evidence said that in Maiduguri township the accused called her and asked her to bring him water and when she did so he pushed her into his room and forcibly had sexual intercourse with her against her will.

She did not make a report to her parents or to anyone else of what the accused had done. A week later the accused again called her and, when she went, forced her into his room and, according to her, again forcibly had sexual intercourse with her against her will but, as a result, she was this time in pain and could not walk properly so that her mother seeing this questioned her and she then told her mother what had happened. On the second occasion the accused gave her a shilling because she was crying. The 2nd p.w., the mother of the accused, confirmed the story of the complainant as to finding her in a distressed condition and said a shilling dropped from the complainant’s clothes when she examined her. The complainant was examined by a doctor whose report on the 9th August, 1968 (exhibit ‘D’) read:

“With reference to your letter No. IB. 48/Vol. III/175 dated 9th August, 1968. I have examined the above named 10 years old girl, who is alleged to have been raped yesterday. My findings: old rupture of the hymenal ring. No redness around the vaginal introitus. Hymen easily admits one finger. Uterus normal size. My opinion, the girl defi-nitely had sexual intercourse with somebody, but had lost her virginity more than 7 days ago. I can neither confirm nor exclude the participation in the intercourse of Mr. Francis Okpanefe by any type of examination available here. This might be done in a criminal laboratory only.”

At the close of the prosecution’s case, defence counsel submitted that there was no corroboration of the evidence of the complainant but the learned trial judge over-ruled that submission, according to the record, with the words:-

“Following R. v. Hedges (1909) 3 Cr. App. R. 262 the submission is overruled.”

The accused then gave evidence and put forward an alibi for the 8th August, 1968, that a certain bar-girl (2nd d.w.) was with him in his room at the time the offence was alleged to have been committed and the 2nd d.w. also gave evidence that she went to the accused’s room but she was unable to remember the date or the day of the week that she did so. She however said that she met the accused inside his room whilst the accused in his evidence said that he went to fetch water from a nearby tap and that the girl met him there. The learned trial judge in his judgment said:-

“As I have said the law demands corroboration of the prosecutrix’s account. Learned counsel for the defence submits that there is no corroborative evidence linking the accused with the crime, although he concedes sexual interference with IST p.w. by someone. R. v. Hedges (1909) Cr. App, R. 262, is an authority that the medical report and the accused’s denials in cross-examination may amount to corroboration. R. v. Knight [1966] 1 A.E.R. 647 supports the proposition that if an accused lies about his whereabout at the material time this also may amount to corroboration. The medical report in this case clearly proves rape in respect of the first occasion at least. It is true that the complaint in this case was made too late to amount to corroboration, but the evidence of the mother as to her daughter’s condition and the shilling which dropped from her wrapper are instances of corroboration as regards count 2. I have also found that the accused’s alibi was spurious and this is further corroboration in respect of the second count.”

And then went on to convict the accused of rape on the first count but of attempted rape only on the second count as he did not find that penetration was properly proved on the second count. The first ground of appeal argued before us read:-

“That the learned trial judge erred in law in overruling the ‘no-case’ submission made on my behalf.”

Mr. Vigo for the appellant submitted that the learned trial judge was wrong to rely on R. v. Hedges (1909) 3 Cr. App. R. 262 because the facts of that case were not similar to here. There, Phillimore, J. in the Court of Criminal Appeal at p. 265 said:-

“This case was properly left to the jury, and we think that there was sufficient corroboration of the story of the prosecutrix. The complaint, the doctor’s evidence, and the prisoner’s denials in cross-examination, and, finally, the statement he made when arrested, are all facts that the jury were entitled to take into consideration as being to some degree corroboration of the girl’s story. An admission made by a man when drunk may not be so weighty as if he was sober, but it is some corroboration.”

Here, Mr. Vigo submitted that there was no evidence to corroborate the evidence of the complainant as at the most the medical report confirmed the complainant’s story that someone had sexual intercourse with her but did not corroborate in any way her story that it was the accused who had done so. We agree with that submission and as section 178(5) of the Evidence Law clearly lays down that no-one shall be convicted of an offence under section 282(1)(e) of the Penal Code on the uncorroborated testimony of one witness, the offence had not been established at that stage.