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Francis Okpanefe Vs The State (1969) LLJR-SC

Francis Okpanefe Vs The State (1969)

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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:-

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“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.

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Nonetheless, though in our view in error, the learned trial judge overruled the submission, and defence counsel then saw it fit to call the accused to give evidence so that the learned trial judge when he came to give judgment looked at that evidence and relying on R. v. Knight (1966) 1 All E.R. 647 found that the accused’s alibi was spurious and thus afforded corroboration on the second count coupled with the mother’s evidence of the complainant’s condition and of finding a shilling. The appellant’s counsel argued on this appeal that he was wrong to find that this afforded the necessary corroboration.

It is clear that on the first count, that is as to the alleged rape on the 1st August, 1968, there was no corroboration whatsoever. Moreover, the complainant did not even make an early report of the incident so as to show the consistency of her conduct though that anyway would not have been corroboration and the medical report which we have quoted did not implicate the accused in any way so the learned trial judge was manifestly in error in convicting the accused on this count.

On the second count we do not see that the finding of the shilling in any way implicated the accused as the girl could easily have got the shilling from someone else, and her distressed condition, whilst indicative of an indecent assault upon her, did not show in any way that it was the accused who had done so and little weight can in itself be usually given to a complainant’s distressed condition in sexual cases. From the matters that the learned trial judge relied on for corroboration there remained only therefore the alibi which he found to be spurious. Now R. v. Knight (supra) was a clear case where the lies of the accused were held to corroborate the story of the complainant there as Lord Parker, L.C.J. at p. 649 said:-

“The other matter of corroboration concerned the approach that the jury should make if they were satisfied that the appellant had lied on the very relevant issue whether he was in Parliament Street when the father claimed to have seen him there with the little girl. Counsel for the appellant points out that, in fact, the assistant recorder did not tell the jury of the answer which the police said that he made, namely, that he did not know where Parliament Street was. In the face of that, counsel points out that it would be wrong to look on his statement that he was not in Parliament Street as a lie.

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However, as I have already related, that is not the only thing that he said. He had said previously, ‘Oh, it’s not me, then. I had about four or five pints that afternoon and I came out of the pub about 3.45 p.m. I caught the bus down and when I got home I never went out again, did I? ‘Did I’ being addressed to his wife who was present. In those circumstances, this court has no hesitation in saying that, if the jury believed the father and found that the appellant was telling a lie, it was certainly very cogent evidence capable of mounting to corroboration,”

But here, we do not think that there was evidence to show on the face of it that the accused was lying. It is true that the place where he said he met the bar-girl was different to where she said in her evidence, but as she could not remember the date at all nor even the day of the week her evidence was of no value one way or the other so that there was only the accused’s alibi which could have been disbelieved of itself but was not manifestly shown by other evidence to have been disproved.

It follows that the position here was not in our view as in R. v. Knight (supra) and the learned trial judge should not have relied on the principle enunciated there of the accused’s lies affording corroboration to find corroboration here upon which he could convict him.

There being no corroboration implicating the accused on the complainant’s story on count 2, any more than on count l, the learned trial judge was equally in error in convicting him on that count of attempted rape as he was of rape on the first count and for these reasons we quashed the conviction of the accused on both counts.

Other Citation: (1969) LCN/1643(SC)

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