Simon Okoyomon v. The State (1973)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

In charge No. U/40171, the accused was charged with having unlawful carnal knowledge of one Rose Iboi, a girl of between 11 and 12 years, without her consent contrary to section 299, Cap. 28 of the Laws of Western Nigeria 1959 applicable in the Mid-Western State of Nigeria, and was convicted of the offence and sentenced to four years’ imprisonment with hard labour and 12 strokes of the cane by Oki, J., at the High Court, Ubiaja, on 29th February, 1972.

The evidence of the prosecutrix was that on or about 2nd November 1970, she, Rose Iboi (P.W. 4), and Comfort Okoh (P.W. 3) went to a bush near Udakpa village in Ubiaja to fetch firewood. The accused met them there and invited Rose Iboi to follow him to a spot nearby where he would show her some firewood. When she asked that P.W. 3 should accompany them, the accused refused, and she alone went with him until they reached a certain spot where the accused fell her down, removed her pant and his own pair of shorts, and started to have carnal knowledge of her. As she shouted and hailed on P.W. 3, the accused covered her mouth with a piece of cloth. She was lying on her back as the accused lay on her and inserted his penis into her vagina, shaking “his waist up and down” on her. She tried unsuccessfully to get up. While still in that position Akhere (P.W. 1) arrived on the scene.

The accused then got up, pulled up his pair of shorts and, after answering Akhere’s question as to what he was doing to her, although she could not remember the accused’s reply, the latter went away through a path in the bush. Thereafter, she returned crying to the spot where P.W 3 was and reported what the accused had done to her before they both returned to their village with P. W. 3 carrying the firewood that P. W. 4 had fetched. On reaching home, P. W. 4 reported the incident to her elder brother as both her parents were not in; she soon proceeded to the farm to report to her mother there. The matter was also reported to the Onogie of the village and, some four days later, the father took her to the police station at Ubiaja where a report was also made.

The prosecutrix was thereafter taken by Rosemary Okor (P.W.2), the investigating woman police officer, to the General Hospital at Uromi where she was examined by the doctor in charge before being given some tablets and injections. P. W. 2 took her to the village where she identified the accused, and all three of them then went to the scene of the incident before returning in a van to Ubiaja police station where the accused was detained.

In her own evidence, Comfort Okoh (P. W. 3) substantially confirmed P. W. 4’s account of what had happened up to the time they both returned home, except that the prosecutrix as well as herself fetched firewood before they returned to the village. Akhere Akpebhugie (P.W. 1), who testified that P.W. 3, P.W. 4 and himself were all natives of the same village, stated that he overheard the accused talking about going to a spot to fetch firewood to two girls some 50 feet from his farm, although he did not see the girls then.

Later, he heard P.W. 4 protesting against what the accused was doing to her and hailing on Comfort, and he went towards the spot where he saw the accused on top of P.W. 4, with his pair of shorts pulled down below his knees and a shirt on the upper part of his body. The accused immediately got up and pulled up his pair of shorts to his waist. The accused then picked up his cutlass, begging him not to report the incident. P.W. 1 thereafter returned to his farm, by which he saw P. W. 3 and P. W. 4 return to the village. P.W. 1 added that, at the time he saw accused on top of P.W. 4, the latter wore a small gown which was pulled up to the upper part of her abdomen, and he also saw a pant by her side. When he left the scene, P. W. 4 was crying as she went away.

Rosemary Okor (P. W. 2) gave evidence of how, on receipt of the report from P.W. 4 and her father at the Ubiaja Police station on 5th November, 1970, she took P.W. 4 to the General Hospital where she was examined by Dr Alokwe who gave her a written report a few days later. She later followed P.W. 4 to the village where she identified the accused who, when questioned about the incident in the bush, knelt down and started to beg her, saying that the matter was already being settled by their village head. Unfortunately, the village head was not at home when they called on him to confirm accused’s story. Back at the Ubiaja police station, the accused made a voluntary statement (ex. B) after being charged and cautioned. On the following day, P.W. 1, P.W. 2, P.W. 3 and P.W. 4 and the accused went to the scene of the alleged crime and, when P. W. 4 pointed to the spot where the accused had carnal knowledge of her, the latter said nothing other than that was his usual resting spot. Also, when P.W. 1 confirmed that that was the spot he found the accused on top of P.W. 4, the latter said nothing. After arresting the accused, P.W. 2 took him to the General Hospital at Uromi for medical examination.The doctor asked him whether he had veneral disease and he replied that he had been married for about 12 years yet had not got an issue. John H.O. Okafor (P.W. 5), the Registrar of the High Court, tendered in evidence the deposition of Dr Sylvester Alokwe made at the time of the Preliminary Inquiry in the Magistrate’s Court. According to Dr Alokwe’s deposition (ex. D) and medical report (ex. A), he examined P.W. 4 at the hospital on 5th November, 1970 and found that she had venereal disease, that her hymen was not intact, that she was between 11 and 12 years old, and that she had had sexual intercourse with a man which was why she had offensive vaginal discharge and the tearing of the hymen. Twelve days later, on 17th November, 1970, he also examined the accused who was brought to him by P. W. 2 to see whether or not he was capable of having sexual intercourse. In reply to the doctor’s question about this, the accused said that he was capable of having sexual intercourse but that he could not conceive his wife for the previous seven years.

The accused gave evidence in his own defence to the effect that, sometime in November 1970, he was clearing his farm when P.W. 4 came upon him and asked where to find firewood, and that he told her that there was no firewood in the area he was clearing. It was at that point that P. W. 1 appeared and accused him of asking P. W. 4 for sexual intercourse. He retorted that P. W . 1 was lying as the latter well knew that it was forbidden to have sexual intercourse in the bush. Then P.W. 1 and P.W. 4 left him to continue clearing his farm. He denied having had sexual intercourse with P. W. 4, or having even suffered from venereal disease. He further testified that, after the matter had been reported to the Onogie and duly investigated by the elders, the conclusion had been that the accusation against him was false.

After a careful review of the evidence for both the prosecution and the defence, the learned trial judge believed the substance of the evidence of the prosecution witness, but disbelieved that of the doctor. The learned trial judge, however, disbelieved the evidence of the accused, found him guilty of rape and sentenced him as already stated.

Against this decision of Oki, J., the appellant now appeals to this Court on the following amended grounds of appeal:

(1) That the learned trial judge erred in law by allowing the 3rd and 4th prosecution witnesses (Comfort Okoh and Rose Iboi) to give sworn evidence without the necessary investigation as there is nothing on record to show whether they were asked questions to determine whether they possessed such intelligence to justify the reception of their evidence and whether they understood the nature of an oath to give evidence, i. e. to speak the truth as they are children within the meaning of the Children and Young Persons Law, Cap. 20, Laws of Western State of Nigeria applicable in the Mid-Western State of Nigeria.

(2) That the decision is erroneous in point of law as an unsworn child can never corroborate another unsworn child.

(3) That the learned trial judge erred in law by convicting the appellant when the evidence of the doctor given by deposition did not connect the appellant with the commission of the alleged offence so as to provide the necessary corroboration as required by law.

(4) That the learned trial judge erred in law in failing to take into consideration the lapse of time as to the alleged time of the commission of the offence and the time of report to the police.

(5) That the learned trial judge erred in law by treating as corroborative evidence matters which were not so, i.e.,

(a) Evidence of 3rd prosecution witness that she was alone with 4th prosecution witness when the appellant asked the 4th prosecution witness alone to follow him.

(b) Evidence of 1st prosecution witness as to the position of appellant at the scene.

(c) Distressed condition of Rose as observed by Comfort (3rd prosecution witness).

(d) Admission by appellant before 2nd prosecution witness.

(e) Silence of the appellant at the locus in quo.

(6) That the failure of the doctor to examine the appellant physically created a gap in the prosecution’s case as it was not proved that the appellant had venereal disease which was in fact transmitted to the complainant during the alleged commission of the offence.

(7) The learned trial judge erred in law by admitting the hearsay evidence of the 3rd prosecution witness that the appellant lifted her up, felled her down and then had carnal knowledge of her when the statement was made to the 3rd prosecution witness by the 4th prosecution witness in the absence of the appellant.

(8) That the prosecution failed to prove its case beyond reasonable doubt by the failure to call the ONOGIE of the village as a witness and or their failure to explain his absence.

(9) That the decision is unreasonable or cannot be supported having regard to the evidence.

Mr Akande, learned counsel for the appellant, argued ground first, contending that there was nothing in the record of appeal to show that the learned trial judge made any preliminary investigation which in his view is required by section 182 (1) of the Evidence Act. It was his submission that before a child is allowed to give evidence, the trial judge must satisfy himself that the child possesses the requisite intelligence to understand the nature of an oath and to appreciate the duty of speaking the truth. For this, he cited Queen v. Southern 22 Cr. App. R. 6; Queen v. John Surgenor 27 Cr. App. R. 175, at p. 177; Queen v. Lyons 15 Cr. App. R. 144. We may observe that in the very recent case of D.P.P. v. Hester [1972] 3 W.L.R. 869, in which there is an authoritative review of nearly all the leading authorities on the subject in English law, the House of Lords held that the unsworn evidence of a child could amount to corroboration of the sworn evidence of another child, thus doubting R. v. Manser [1934] 25 Cr. App. R. 18, also cited to us by Mr Akande.

Mr Akande, having abandoned ground 2, argued ground 3 next and submitted that the doctor’s evidence did not corroborate the allegation that the accused had sexual intercourse with W.P. 4. Under ground 4, he contended that the prosecutrix’s complaint to the police was not made until four or five days after the alleged offence, a submission he quickly abandoned when we pointed out to him that the victim had reported successively to P. W. 3, P. W. 4′ s elder brother, and mother soon after the incident. Learned counsel next went to the omnibus ground 9, arguing that the prosecution had not established the case against the accused beyond reasonable doubt. He pointed out that even the judge was not quite sure about whether the accused really had intercourse with the prosecutrix. Under ground 5 he submitted that it was not corroboration the P.W. 1 saw appellant pull up his pair of shorts, or that P. W. 4 was said by P. W. 1 and P. W. 3 to be in distress after the incident, or that the accused told P. W. 2 at the village about settlement by the Onogie, or indeed that the accused remained silent at the locus in quo when P. W.4 and P. W. 1 alleged that he committed the offence at the particular spot. In arguing ground 8, Mr Akande contended that the Onogie should have been called by the prosecution to rebut the accused’s assertion that the accusation made against him by P. W. 4 had been found by the village elders to be false. In support of this, he referred us to Rex v. George Kuree, 7 W.A.C.A. 175.

Mr Eduvie, learned counsel for the respondent, submitted that the learned trial judge was right in admitting the evidence of the two girls, P.W.3 and P. W. 4, and that there was nothing in section 182 (1) of the Evidence Act which requires that a trial judge should carry out the preliminary investigation on which learned counsel for the appellant had earlier insisted as a condition recedent. We may observe here that the real point is that section 182 (1) deals with unsworn evidence of a child, whereas in the instant case we are dealing with the sworn evidence of a child allegedly corroborated by the sworn evidence of another child and, be it noted, also by the sworn evidence of an adult, P. W. 1, who saw the accused on top of P.W. 4. After submitting that failure to call the Onogie as witness is not fatal to the prosecution’s case and that the offence had been established beyond reasonable doubt, learned counsel for the respondent made the alternative submission that, if the court should hold otherwise, the appellant should be found guilty of attempted rape in accordance with section 169 of the Criminal Procedure Code. We think that there is substance in this submission for the following reasons:

(a) That we are of the view that the prosecution had not established that the accused did have unlawful carnal knowledge of the prosecutrix in the sense that there had been penetration as required by section 299 of the Criminal Code. It was not enough that the prosecutrix alleged the insertion of the accused’s penis into her vagina or that he lay on her: see Jos N.A. Police v. Allah Na Gani [1968] N.M.L.R. 8 The doctor should have examined the accused, not as to whether he was capable of having sexual intercourse but as to whether he had venereal disease of a kind at least similar to that found in the prosecutrix’s vagina. As the learned trial judge himself found

“All that his deposition showed was that Rose Iboi’s hymen had been torn (without indicating how long ago) and that she had venereal disease without examining the accused medically to know whether he too had venereal disease of the same strain”.

Also, there should have been medical evidence as to how long P.W. 4’s hymen had been torn and whom by. The learned trial judge was clearly in some confusion when he said:

“If it was the accused who tore it -and the doctor did not say so-it means that there was penetration. On the other hand, if the hymen had already been torn before that day, penetration would be naturally easier, and there will be no cause to doubt that the penis was inserted into her vagina as testified by the prosecutrix.”

(b) That the evidence of P.W. 1 has only a limited probative value in corroborating the prosecutrix’s story that the accused was on top of her but not as corroborating the actual act of penetration. All that P. W. 1 said on the point was:

“When I saw the accused on top of Rose as he was apparently having carnal knowledge of her, I saw Rose shaking her legs in resistance. ”

Moreover, the prosecutrix alleged both that “she resisted by kicking with her legs” and that “she could not succeed in freeing herself partly because accused covered her mouth with a piece of cloth and partly because the accused, who was lying on her, put his legs on her own legs”.

(c) That there was some iota of doubt in the mind of the trial judge himself as to whether the ingredient of the offence of rape which is the subject-matter of the charge has been unequivocably established is borne out by the following finding of the judge

“I believe that when accused and Rose reached a certain spot in the bush, the accused felled her down, pulled off her pant, pulled down his own pair of shorts and then started to have (or attempted to have) carnal knowledge of Rose Iboi.”

It is essential that the offence of which the accused is being convicted should be indicated with sufficient particularity by the trial judge. In this case, the judge should have made it clear whether he found proved against the accused “carnal knowledge” or only “attempted carnal knowledge” .

For the foregoing reasons we think that the proper charge of which the appellant can be convicted is one of attempted rape and not rape, as the ingredient of the latter offence has not been satisfactorily established. We accordingly set aside the conviction for rape and substitute one for attempted rape. On account of the enormity of the crime committed, by the appellant, we confirm the sentence of four years imprisonment with hard labour plus twelve strokes of the cane.

Appeal allowed; conviction of attempted rape substituted.

SC.90/1972