CORAM

---

SYLVESTER U. ONU , JUSTICE, SUPREME COURT

---

PARTIES

---

ALEX IVWIGHRE APPELLANTS

---

THE STATE RESPONDENTS

---

AREA(S) OF LAW

---

---

SUMMARY OF FACTS

It was alleged that the Accused person/Appellant and one other still at large, broke into the house of Emomo Timi James and demanded for the keys to her husband’s motorcycle. It was stated that they forcefully collected her handset and dragged her to an uncompleted building behind Erhijere Primary School where the Appellant who was wearing a mask, as at the time the offence was committed raped her. The Appellant removed his mask after the incident and was recognized by the victim with the aid of light from surrounding buildings. The prosecution called two witnesses and tendered in evidence two exhibits. The Appellant in his defence denied the charge. He stated that he did not rape the victim. He did not call any witness. At the conclusion of the trial, the learned trial Judge, in a considered Judgment, convicted the Appellant of rape and conspiracy to commit armed robbery, and sentenced him to 10 years imprisonment on each of the counts without an option of fine, but discharged him on the offence of robbery. The Appellant who is dissatisfied with the Judgment of the lower Court has appealed to this Court.

---

HELD

---

Appeal Dismissed

---

ISSUES

---

Whether having regard to the state of evidence before the Court, the learned trial Judge was right when he held that the prosecution proved the offence of rape and conspiracy to commit a felony to wit robbery against the Appellant beyond reasonable doubt.

---

RATIONES DECIDENDI

---

CRIMINAL PROCEEDINGS – STANDARD AND BURDEN OF PROOF IN CRIMINAL PROCEEDINGS

---

“In a criminal prosecution, the required standard is that of proof beyond reasonable doubt. The burden of proof on the prosecution in a criminal trial has been succinctly enshrined in Section 135(1) of the Evidence Act 2011, which provides as follows:-
If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. But it is trite that proof beyond reasonable doubt does not mean proof beyond shadow of doubt. When the ingredient of any particular offence the accused is charged with has been proved, then the prosecution is said to have proved its case beyond reasonable doubt.
See the following cases:- Edamine vs The State (Supra);- Ogunzee vs The State (Supra);- Adonike vs State (Supra);- Sani vs State (2015) LPELR 24818 SC;- O. Egharevba vs The State (2016) LPELR 40029 SC.”

---

COMMISSION OF A CRIME – MODE OF PROVING THE COMMISSION OF A CRIME

---

“The law is settled that the commission of a crime can be proved in any of the following ways:-
(a) Confessional evidence
(b) Direct or eyewitness evidence
(c) Circumstantial evidence.
See the following cases:- Emeka vs State (2001) 6 SCNJ Page 259; – D. Gira vs The State (1996) 4 SCNJ Page 95 at 106; -Igri vs The State (2010) 7 WRN at Page 47; – Lucky vs State (2016) LPELR 40541(SC).”

---

OFFENCE OF RAPE- INGREDIENTS A PROSECUTION MUST PROVE TO ESTABLISH THE OFFENCE OF RAPE

---

“In a charge of Rape, the onus of proof is on the prosecution to establish by evidence the following facts beyond reasonable doubt:-
(1) That the accused had intercourse with the Prosecutrix.
(2) That the act of sexual intercourse was done without her consent or the consent 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.
See the following cases:- Posu & Another Vs The State (2011) 3 NWLR Page 393; – Iko Vs State (2003) 3 ACLR Page 49; – Adonike Vs State (Supra); – Afor Lucky vs State (Supra).”

---

MEDICAL REPORT- WHETHER A MEDICAL REPORT RELIED ON TO PROVE AN OFFENCE MUST BE FROM A GOVERNMENT HOSPITAKL

---

“The Learned Counsel for the Appellant is not contesting the fact that Exhibit B corroborated the testimony of PW1 that she was raped however he is not happy that the medical report relied upon by the prosecution came from a private Medical Doctor in a private clinic instead of a government hospital. In my view, as long as the medical report is from a qualified Medical Doctor, whether it is from a private hospital or government hospital is a non-issue. The learned trial Judge was therefore right when he held that the medical report Exhibit B corroborated the evidence of PW1. See the following cases:- Afor Lucky vs State (Supra); Adonike vs State (Supra).”

---

DEFENCE OF ALIBI- CONDITIONS TO BE FULFILLED FOR THE DEFENCE OF ALIBI TO AVAIL AN ACCUSED PERSON

---

“For the defence of Alibi to avail the Appellant, the following conditions must be fulfilled:-
(1) The accused must raise the defence at the earliest opportunity, in most cases in his statement to police. This will give the police the opportunity to investigate the Alibi.
(2) He must be specific as to where he was when the incident took place. He should be able to mention the names of the people that were with him at the particular time in his statement to the police.
(3) Where, however the Prosecution pins the accused to the scene of crime (as in this case) and the trial Judge believes the evidence of the prosecution the accused’s alibi is technically destroyed.
See the following Cases:- Ilodibe vs State (2015) LPELR 24693 (SC); – Esangbedo vs The State (1989) 4 NWLR Part 13 Page 57.”

---

“CONSPIRACY”- DEFINITION OF THE WORD “CONSPIRACY”

---

“Conspiracy has been held in a number of decided cases to be an agreement by two or more persons to do an unlawful act or to do a lawful act by unlawful means. The two or more persons must be found to have combined in order to ground a conviction. See the following cases:- Kayode vs State (2016) LPELR 40028 (SC); Yakubu vs State (2014) LPELR 22401 (SC).”

---

OFFENCE OF CONSPIRACY- KEY ELEMENT OF THE OFFENCE OF CONSPIRACY

---

“The main substance of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain criminal acts of the parties concerned.”

---

PROOF OF CONSPIRACY- METHOD OF PROVING THE OFFENCE OF CONSPIRACY

---

“It is trite law that conspiracy can be proved by direct evidence or by inference from the criminal act of the parties done in furtherance of an intention to commit a criminal act. The conclusion to be drawn from the picture painted by the evidence presented before the trial Court is that the offence of conspiracy to commit armed robbery by the Appellant and his colleague has been proved beyond reasonable doubt. See the following cases:- Njovens vs State (1973) 5 SC Page 17; – Balogun vs AG Ogun State (2002) 6 NWLR Part 763 Page 512.”

---

WITNESSES – WHETHER A PROSECUTION IS OBLIGATED TO CALL ALL WITNESSES TO PROVE ITS CASE

---

“In my humble view, whether a witness is vital for the purpose of establishing the prosecution’s case is a matter for the prosecution. The prosecution is at liberty to call such material witnesses as it deemed necessary to establish its case. The law also allows the defence i.e. the Appellant in this case to call any particular witness not called by the prosecution if it so desires. See the following cases:- Ogbodu vs State (1987) 1 N.S.C.C. Page 429 at 441 lines 2 9; – Agbaye vs State (1979) 6 9 SC Page 18 at 28 29; – Sunday Ehimiyein vs The State (2016) LPELR 40841 (SC).”

---

CASES CITED

---

Not available

---

STATUTES REFERRED TO

---

Criminal Code Cap C.21 Laws of Delta State of Nigeria|Evidence Act, 2011|

---

CLICK HERE TO READ FULL JUDGMENT

---