Ndewenu Posu & Anor V. The State (2011)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This appeal is against the judgment of the Ibadan Court of Appeal delivered on 11th day of February, 2010 affirming both the conviction and sentence passed on the Appellants by the trial High Court of Ogun State, Ilaro Judicial Division.

The Appellants, as accused persons, on 15th day of October, 2008, were arraigned before the trial court on two counts charge of – conspiracy to commit a felony, to with Rape and Rape contrary to section 516 and 358 of the criminal Code Cap 29, Laws of Ogun State of Nigeria respectively.

After the two count charges were read and explained to the accused persons they pleaded not guilty. At the trial the prosecution called four witnesses and tendered five exhibits. At the close of prosecution’s case, the Appellants gave evidence in their defence without more. Thereafter both the prosecution and the defence counsel addressed the trial court. In his well considered judgment the learned trial judge found the appellants guilty and were convicted and sentenced to one and three years respectively for conspiracy to commit rape and rape itself.

Not being satisfied with the judgment of the trial court, the Appellants filed an appeal at the Ibadan Division of the Court of Appeal. On 11th February, 2010, their appeal was dismissed.

By the leave of the court of Appeal given on 15th day of April, 2010, the appellants further filed separate Notices of Appeal to this Court dated and filed on 15th day of April, 2010. The two Notices of Appeal containing identical and two grounds of appeal without the particulars read thus:

GROUND ONE:

The learned Justices of the Court of Appeal erred in law when they held that PW1 “on the day of the incident neither aid or abet or assist the 1st and 2nd accused/appellants in their dealings with PW2 on the day of the incident” and therefore not accomplice.

GROUND TWO:

The learned Justices of the Court of Appeal erred in law when they held that penetration which is an essential ingredient of the charge of Rape was proved.”

Hence the present appeal is against the affirmation of the conviction and sentence of the appellants by the Court of Appeal. The Appellants identified two issues from the two grounds of Appeal in their brief for the determination of the appeal as follows:

“1. Whether penetration an ingredient factor in a charge of RAPE was proved in this case.

2. Whether PW7 is not an accomplice to put his evidence and that of the complainant under caution that requires corroboration.”

The Respondent on other hand, couched slightly different their two issues for determination thus:

“1. Whether prosecution proved the charge of conspiracy and rape against the Appellant beyond reasonable doubt.

2. Whether the lower Courts were right to have relied on the Evidence of PW1 as the required corroboration in this case.”

On 11th November, 2010 when this appeal was heard, learned counsel for the appellant, identified the Appellants’ brief of argument and having adopted same, he urged this Court to allow the appeal. In effect to set aside the judgment of the Court of Appeal which confirmed the conviction and sentence of the appellants. However, it is urged on behalf of the Respondent by the Learned Director of Public prosecution, Ogun state Ministry of Justice, that the appeal be dismissed for lacking in merit.

On the first issue, which relates to ground 2 on the respective Notices of Appeal of the Appellants, it was argued for the Appellants that for a charge of rape to be successfully proved, the prosecution must prove penetration of the penis into the vagina of the victim. That the courts have warned in a number of cases about undesirability of relying solely on the uncorroborated evidence of the prosecutrix to find penetration. Reliance was particularly placed on the case of SIMON OKOYEMON v. THE STATE (1973) 1 SC 21 AND IKO v THE STATE (2001)14 NWLR (Pt. 732) 221.

It is submitted by the Learned Counsel for the Appellants that penetration an essential ingredient of offence was not proved in this case by the prosecution. That PW1 is not an independent witness that can provide the required corroboration. He relied on the cases of THE STATE v. OJO (1980) 2 NIG. CRIME REPORT 391 at 395 and JOSHUA v. GANI (1968) NMLR. 80.

It is finally submitted that the court below was in error when it concluded that the bruises in the inner thighs showed lack of consent and that the appellant forced their way into the prosecutrix. That this was mere speculation which is not permitted in law. Reliance was placed on the cases of: EJEZIE v. ANUWU (2008) 12 NWLR (PT.1101) 446 at 490, UTB v. OZOEMENA (2007) 3 NWLR (pt.1022) 448 at 471; and ACB PLC v N.T.S. (NIG) LTD. (2007) 1 NWLR (pt.1016) 595 at 628.

For the Respondent, the learned counsel, while agreeing with the State of the law regarding the definition of offence of rape in the cases of OKEYOMON v THE STATE (supra) and IKO v. THE STATE (supra), explained that penetration with or without emission is sufficient, even where the hymen was not ruptured. He contended that the prosecution has proved that on 12th December, 2008, the appellants had carnal knowledge of pW2 at about 7.30 p.m. in the presence of PW1. That it is equally in evidence that on the same night the incident took place the matter was reported to the police who immediately took PW2 to the Hospital where examination was conducted and the report which was admitted as Exh. ‘C’ confirms the testimony of PW2 to the effect that she was raped by the appellants.

It is finally submitted on this issue that all the circumstances must be taken into consideration to determine proof of the offence of rape against the appellants beyond reasonable doubt’.

The state of the law, as correctly stated by the learned counsel for the Respondent is that the most essential ingredient of the offence of rape is penetration, however slight, see IKO v STATE (supra) and OGUNBAYO v. THE STATE 5 SCN 154 at 158.

The evidence of PW1 and PW2 is quite overwhelming on the senseless and callous sexual assault on the prosecutrix. In his evidence PW1 narrated vividly how the appellants forcibly had carnal knowledge of PW2. He stated thus:

“I know the accused persons; they are my friends. I am in Court to testify about on incident that happened on 12/12/06 at about 7.30pm … I and two accused persons were going to the 1st accused person’s house. Along the way we saw the girt called DUPE. We started joking with her that we would marry her. She said she had no time for us. At that point the 1st accused said to the girl; so it was you, I have been looking for you a long time. I catch you today. At that point the 1st accused slapped Dupe on the face and felled her on the ground. He tore her dress and pant. The 2nd accused person held her hands and the 1st accused inserted his penis in her vagina. I told him to leave the girl alone but the 2nd accused person slapped my face. When the 1st accused got up from the girl, the 2nd accused person mounted her and also insert (sic) his penis into her vagina.

PW1 told the court that on the same night the incident took place the matter was reported to the police who immediately took PW2, soaked with blood, to the hospital for examination in the early hour of 13/12/2008. The Doctor’s findings as noticed and indicated in Exhibit ‘C’ were bruises on the thighs, of PW2; semen in her vulva and tiny bruises at the entrance of her vagina. It is not a deal and in no way a contested fact that Exhibit ‘C’ as I have stated is the Report of Doctor’s observation and treatment, issued by one Dr. Itokem Michael of Ipokia General Hospital to pw2. PW4 testified that he was on National Youth service at the Hospital, at all times material to this case when he examined PW2 and issued Exh. ‘C’. He had since completed his service and left the Hospital to an unknown place. By section 44 of the Evidence Act, the Court shall, in the absence of evidence to the contrary presume that the signature to Exh. ‘C’ is genuine and that Dr. Itokem Michael who signed it held the office which he professed at the time when he signed it. I must therefore give Exhibit ‘C’ the consideration it deserves having regard to the other evidence on record and the circumstances of this case.

There is evidence from pW2 that the appellants inserted their penis into her vagina and had sex with her. The evidence was not controverted. The content of Exhibit ‘c’ confirms the testimony of PW2 to the effect that she was raped by the appellants.

I have observed and noted keenly, that the defence of the appellants was outright denial of the offences charged. Though they admitted they were at the scene of the incident on the day in question and saw the PW1 and PW2, they alleged that it was PW1 that was fighting with PW2 and their plea to him to leave PW2 alone was ignored so they had to leave them. The Appellants however did not state the extent of the quarrel or fight between the PW1 and PW2. The Appellants’ evidence is contrary to their extra judicial statements in Exhibits ‘D’ and ‘E’. The 1st Appellant in Exhibit ‘D’ said he saw PW1 arguing with one lady and he told him to leave her alone, while the 2nd accused in Exhibit ‘E’ said they met PW1- talking with one girl. They also testified on oath contrary to their statements that they knew the PW2 long before the incident. This discrepancy in their evidence was not explained. The Appellants also raised a common defence that they were implicated. It was the 1st appellant who alleged that he was implicated because of the land dispute between PW2’s father and his father. The 2nd Appellant said he was implicated because of his friendship with the 1st Appellant. Apart from the ipsi dixit of the 1st appellant, no evidence was produced to substantiate the allegation.

The learned trial judge was right when he agreed with the learned counsel for the Respondent in her submission that the defence was an after thought.

The contention of the appellants in their brief of argument, (paragraph 5.04) is that mere presence at the scene of crime without more will not amount to being a participant to a crime. That is trite Law. The mere fact that the PW1 beckoned on the PW2 for a discussion will never amount to initiating a crime process. Besides, the appellants herein met PW1 and PW2 at the scene of crime and highjacked the discussion and found it convenient to perpetrate their evil intentions. This they did. From the available evidence and as well as the circumstances of this case I do not see how PW1 could be said to have stood by while the appellants went about committing the crime of rape. Rather he commendably tried his best to prevent the appellants from raping the PW2. Every case is determined by its peculiar circumstance. The trial court found and the court below also found that a crime of rape was committed by the appellants after hearing the evidence of the prosecution witnesses as well as considering the defence of the appellants. He found corroboration of PW2’s testimony in the evidence adduced by the PW1, and the medical report as well as the circumstances under which the entire crime took place. The trial court observed the demeanor of prosecution witnesses as well as the testimony of the appellants before coming to the conclusion that the prosecution had proved its case beyond reasonable doubt. The court of Appeal on its part went through the records as well as the submissions of the learned counsel in the case and was able to also agree with the findings of the trial court judge. I have no reason whatsoever to disagree with those concurrent findings of the two Courts below on the role of the appellants in the commission of the offence as charged.

The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of section 138(1) of the Evidence Act. Cap.112 of the law of the Federation 1990 applicable at the time of the trial of the appellants. Therefore, if on the entire evidence adduced before a trial court, the court is left with no doubt the offence was committed by accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is the credible evidence of single witness. On the other hand, where the court considers the totality of the evidence and a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it, thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal: AFOLALU v. STATE (2010) ALL FWLR (PART 538) 812 at 828. FOTOYINBO v. ATT-GEN, WESTERN NIGERIA (1966) WNLR 4; ALONGE v. INSPECTOR-GEN. OF POLICE (1959) SC NLR 516 AND STATE v. DANJUMA (1997)s NWLR (pt.506) 512.

As I have observed and held earlier, the learned trial Judge had considered the entire evidence before him and was left in no doubt that the appellants committed the offence of rape to justify their conviction and sentence. Accordingly I resolve this issue in favour of the Respondent.

In the second issue it is the contention of the appellants that it was PW1 that initiated the confrontation with PW2 and for this reason he should be held as an accomplice to the crime committed by them.

For the Respondent it was argued that the PW1 was an independent witness and not an accomplice.

Section 7 of the criminal code Law, Laws of Ogun State provides thus:

“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actual committing it; that is to say:

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any for the purpose of enabling or aiding another person to commit the offence.

(c) every person who aids another person in committing the offence.

(d) any person who counsels or procures any other person to commit the offence.

From the evidence adduced during the trial it is difficult to categorise PW1 as one of the persons listed above. Agreed, PW1 was the person that started the conversation with PW2, but it has not been shown that it was aimed at furthering, enabling or aiding the appellants to commit the offence of rape against PW2. Nothing to suggest that PW1 had any previous discussion about PW2 with the appellants. For this reasons PW1- can never be an accomplice to the crime of rape committed by the appellants. Both the trial court and the court below were right when they held that PW1, from the evidence on record never advised or encouraged the appellants in their dealings with PW2 on the day of the incident and cannot rightly be called an accomplice. It is quite clear to me that from the record that Pw1 met PW2 and had started a discussion before the appellants met them; as such it cannot be said that he conspired with them; conspiracy means the meeting of the mind of the conspirators. It consists of intention of two or more and agreement by them to do an unlawful act or to do lawful act by an unlawful means.

Conviction for conspiracy is usually predicated on circumstantial evidence, which must be of such a quality that irresistibly compels the court to make an inference as to the quilt of the accused. There is evidence from PW2 corroborated by PW1 that the 1st appellant slapped PW2, fell her to the ground and tore her pant and dress. These were tendered and admitted at the trial as Exhibits ‘A’ and ‘B’ respectively. There is evidence also that after the 1st appellant was done, the 2nd appellant also had unlawful carnal knowledge of PW2.

The assertion of the appellants that the learned trial judge relied on the evidence of pW1 to find corroboration for the evidence of PW2, cannot be true. The Learned trial judge apart from considering the evidence of PW1 to ground corroboration; also sought corroboration from Exhibit ‘C’ (supra) as well Exhibit ‘A’, the torn pant of PW2 and Exhibit ‘B’, her torn dress and the circumstance under which the crime was said to have been committed.

In the result, as the two issues submitted by the Appellants for the determination of this appeal have failed having been resolved against them, the appeal itself fails. Accordingly Appellants’ appeal is hereby dismissed. It has no merit. The conviction and sentence of the appellants on the two count charge of conspiracy and rape by the Ogun State High Court, Ilaro and affirmed by the Ibadan Division of the court of Appeal are hereby further affirmed.

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SC.134/2010