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Effect of failure to establish the element of penetration in a rape charge in retrospect: The vicissitudes of third arm of government in last 59 years

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JULIUS v. STATE
CITATION: (2019) LPELR-48170 (CA)

In the Court of Appeal
(Ado-Ekiti Judicial Division)

ON THURSDAY, 5TH SEPTEMBER, 2019

Suit No: CA/EK/11C/2018

Before Their Lordships

UZO IFEYINWA NDUKWE-ANYANWU, JCA
FATIMA OMORO AKINBAMI, JCA
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA

Between
JOHN JULIUS                                                        Appellant(s)

  And

THE STATE                                                   Respondent(s)

LEAD JUDGMENT DELIVERED BY UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

FACTS OF THE CASE
This is an appeal against the judgment of Ekiti State High Court delivered by Hon. Justice J. O. Adeleye June 30, 2017.The appellant (John Julius) was arraigned before the trial court on a two count charge of rape and assault contrary to Section 358 and 352 of the Criminal Code Law, Cap C16 Laws of Ekiti State of Nigeria, 2012 respectively.
   
On arraignment he pleaded “Not Guilty” to all the charges and the case proceeded to trial.It was the case of the respondent (The State) that the appellant raped and assaulted one Alice Ozar, a 40 years old woman at Oke-Imesin Road, Efon Alaaye Ekiti on July 16, 2016.
   
The appellant in his defence denied committing the said offences and alleged that he was set up by the Alice Ozar. He contended that at the time of the alleged crime he was 17 years old boy in search of a job to enable him raise money for school fees. That in his search, he got engaged by Alice Ozar to work in her farm. That after the close of work, Alice Ozar refused to pay him for his labour and instead accused him of raping and assaulting her.

   
The case was first reported to the Urhobo Progressive Union at Efon Alaaye. The appellant denied the allegation and called for the Urhobo deity (Ayelala) to be used to swear but Alice Ozar declined. After few days Alice Ozar reported to the police at Efon Alaaye – Ekiti where the appellant was subsequently arrested and charged to court.
The trial court in its judgment convicted and sentenced the appellant to life imprisonment on the offence of rape while discharging and acquitting him on the offence of assault.

ISSUES FOR DETERMINATION
The appellant wants the court to determined the following issues: 1. Whether the trial court was right in convicting and sentencing the defendant/appellant to life imprisonment when the element of penetration was not proved.
   
2. Whether the trial court was right in convicting and sentencing the defendant/appellant to life imprisonment without an option of a fine where the evidence placed before the court were not properly evaluated which made the judgment of the court to be perverse.

APPELLANT’S COUNSEL SUBMISSION
On issue one counsel for the appellant submitted that the respondent having failed to prove the essential ingredient of the offence of rape, the trial judge was wrong in convicting and sentencing the appellant to life imprisonment on the said offence.
   
Relying on the case of ADONIKE V THE STATE (2015) ALL FWLR (Pt 772) 1631; (2015) LPELR-24281(SC) it was his contention that for the prosecution to secure a conviction for the offence of rape, the prosecution must prove the following ingredients of the offence: – i. That the accused person had sexual intercourse with the prosecutrix. ii. That the act of sexual intercourse was done without her consent or was obtained by fraud, force, threat, intimidation, deceit or impersonation. iii. That the prosecutrix was not the wife of the accused. iv. That the accused had the mens rea, the intention to have intercourse with the prosecutrix without her consent or that the accused acted reckless not caring whether the prosecutrix consented or not. v. That there was penetration.
   
In the instant case, counsel submitted that the respondent failed to prove penetration. He submitted that in proving the offence of rape against the appellant, the respondent through PW1 (Alice Ozar) gave evidence as follows: – “As I was going, the defendant gripped me from behind and pushed me on the ground, I started to struggle with him. The defendant tore my pant and had sexual intercourse with me.”
   
He submitted that, that piece of evidence without more was insufficient to establish an essential ingredient of the offence of rape which is penetration.
  
Furthermore, counsel contended that the fact that the respondent did not tender any medical evidence or stained clothes with semen was fatal to its case. He submitted that the failure of the respondent to call the doctor or tender the medical report raises the presumption of withholding of evidence. He referred to Section 167(d) of the Evidence Act. He also submitted that the medical doctor was a vital witness and the failure of the respondent to call the doctor was fatal to its case.
   
On issue two, learned counsel for the appellant submitted that the trial court was wrong in convicting the appellant to life imprisonment without an option of fine.It was his contention that the said decision of the trial court was based on improper evaluation of evidence before it and thus same ought to be reviewed and set aside. According to counsel, the trial court relied on inconsistent evidence of PW1 as regards penetration, hearsay evidence of Pw2 and Pw3 with respect to the scene of the crime and failed to consider the oral and documentary evidence of the appellant (Exhibit B). He relied on the cases of KIM V STATE (1992) 4 NWLR (Pt. 233) 17; (1992) LPELR-1691(SC); OGUNYE V THE STATE (1999) 4 SCNJ 33; (1999) LPELR-2356(SC); AHMED V THE STATE (1999) 5 SCNJ 223; (1999) LPELR-263(SC).
   
He submitted that had the trial court properly considered the evidence before it, it would have come to a different conclusion. He thus urged the court of appeal to exercise its power under Section 15 of the Court of Appeal Act and review the entire evidence and set aside the judgment of the trial court.
   
In the alternative, counsel submitted that where the appellant is found guilty of the offence charged, the trial court was still wrong in not giving an option of fine to the appellant. According to counsel, even though the offence under which the appellant was charged does not provide for an option of fine, the trial court under Section 316(1) of the Ekiti State Administration of Criminal Justice Law has the discretionary power to impose fine in lieu of imprisonment. He referred to Section 357 and 358 of the Criminal Code Law, Cap C16, Laws of Ekiti State of Nigeria, 2012.

RESPONDENT’S COUNSEL SUBMISSION
Learned counsel for the respondent on the other hand submitted on issue one that the trial court was right in convicting the appellant for the offence of rape as the respondent did prove beyond reasonable doubt the offence of rape against the appellant.
   
On the issue of penetration, counsel submitted that penetration was proved by the respondent through the evidence of PW1 when she stated in her evidence as follows:“The defendant tore my pant and had sexual intercourse with me…” He submitted that the above statement was sufficient to establish penetration.
   
With regards to the failure of the respondent to provide medical evidence, counsel relying on POPOOLA V THE STATE (2012) ALL FWLR (Pt 617) 763; (2013) LPELR-20973(SC) submitted that it is not in all cases that medical evidence is required. He further submitted that in cases where rape is not denied like in the instance case medical evidence is not required.
   
Counsel for the respondent on issue two submitted that the punishment prescribed under of Section 358 of the Criminal Code Law is mandatory upon conviction of the offence of rape. He also submitted that the trial court has no discretion to convert the mandatory life imprisonment into an option of fine. He contended that the trial court only has the discretion to decide whether to add canning or not into the life imprisonment sentence. He relied on the case of LUCKY V THE STATE (2016) LPELR-40541(SC).
   
He submitted that Section 316(1) of the Administration of Criminal Justice Law (ACJL) cited by the appellant in support of his argument will not apply in this case. That firstly, the Criminal Code Law of Ekiti State under which the appellant was tried and convicted is a substantive law while the ACJL is purely procedural.
   
That secondly, the punishment prescribed under Section 358 of the Criminal Code Law is specific and definite and therefore by virtue of Section 316(5) of the ACJL, the ACJL will not apply.Counsel further submitted that the evidence of Pw2 and Pw3 are not hearsay evidence. It is the contention of counsel that Pw2 and Pw3 (who are IPO at Police Headquarters and Divisional Police Headquarters Efon Alaaye respectively) gave evidence as to what they personally saw or discovered in the course of their investigation and is therefore admissible.He thus urged the court not to interfere with the finding of the trial court and resolve the issues in favour of the respondent.

RESOLUTION OF ISSUES
In resolving the issues joined by the parties, the Court of Appeal relying on the cases of LUCKY V THE STATE (2016) LPELR-40541(SC); AFOLABI VS COP (1961) (1961) LPELR-25028(SC); MUSA VS STATE (2018) LPELR-43846(SC); EZIGBO VS STATE (2012) LPELR-7855(SC), outlined the essential ingredient which the prosecution must prove in rape cases which are as follows: 1) That the accused had sexual intercourse with the prosecutrix. 2) That the act of sexual intercourse was done without consent or that the consent (if any) was obtained by fraud, force, threat intimidation, deceit or impersonation. 3) That the prosecutrix was not the wife of the accused.
   
4) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not. 5) That there was penetration.
   
The court then proceeded to juxtapose the above requirements of the law with the evidence led in the trial court to determine whether these ingredients were in fact proved by the prosecution.On the requirement of sexual intercourse without consent, the court held that the prosecutrix/respondent only stated that the appellant had intercourse with her and nothing more an assertion the appellant denied. That there was nothing to show or to prove that, the appellant indeed had sexual intercourse with the respondent. Mere saying so, the court held is not enough to prove such allegation.
   
Relying on MUSA V THE STATE (2013) LPELR-19932(SC); OGUNBAYO VS STATE (2007) LPELR-2323(SC); IDI VS STATE (2017) LPELR-42587(SC), the court held that there was nowhere in the respondent’s testimony where she stated categorically that the intercourse if any was without her consent. That for sexual intercourse to be termed as rape, there must be a lack of consent by the victim.
   
Citing and quoting from the case of SUNDAY JEGEDE VS THE STATE (2001) LPELR-1603(SC) where Belgore JSC held:
“The offence of rape is the unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation or any kind or by fear of harm or by means of false and fraudulent misrepresentation as to the nature of the act or in the case of a married woman, by personating her husband. The rape is only committed in circumstances set only above with clear evidence of penetration and who was responsible for it.”  the court held that there was no evidence direct or indirect of the penetration of the male organ of the appellant into the organ of the respondent.
   
The court finally held that it is not enough that the prosecution/respondent said that the appellant had sexual intercourse with her without her consent but the fact of penetrations must be proved beyond reasonable doubt. These, the court held the prosecution failed to prove.

HELD
In a unanimous decision, the appeal was found meritorious and was thus allowed. The judgment of the trial court was set aside. The accused was therefore discharged and acquitted.

Appearances:
J.O. Olajide, Esq.                                                                -For Appellant(s)

Olawale Adekola Fapohunda, Esq. (The Hon. Attorney General, Ekiti State) with him, Gbemiga Adaramola, Esq. (DPP, Ekiti State), O.F. Ajumobi, Esq. (Principal Legal Officer), Moshood Abiola, Esq. (Legal Officer)                                     – For Respondent(s)
Compiled by LawPavilion


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