Legalpedia Citation: (2023-07) Legalpedia 81264 (CA)

In the Court of Appeal

Holden at Akure

Tue Jul 18, 2023

Suit Number: CA/AK/18C/2021

CORAM

OYEBISI FOLAYEMI OMOLEYE JUSTICE OF THE COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO JUSTICE OF THE COURT OF APPEAL

YUSUF ALHAJI BASHIR JUSTICE OF THE COURT OF APPEAL

PARTIES

ALO OLUSOLA

 

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

The Appellant who is the biological father of PW 1 had formed the habit of demanding and having sexual intercourse with her as a condition for meeting her demands for school necessities, since the girl was aged 10 when she was in the junior class (JSS 1) at St. Thomas Comprehensive High School Akure. It got busted during one of the meetings of their fellowship when she narrated to the coordinator of the fellowship and later to the school principal that her father (Appellant) had been having sex with her whenever she asked him for money to buy her school needs. A report was made at the police station and who eventually arraigned him in Court where he was tried and convicted for rape. The Appellant was dissatisfied by the decision hence this appeal.

HELD

Appeal dismissed

ISSUES

Whether the lower Court was right to have convicted the Appellant on the ground that the prosecution had proved the offence of rape beyond reasonable doubt?

RATIONES DECIDENDI

BURDEN AND STANDARD OF PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

In every criminal trial generally, the burden of proof is always on the prosecution, the standard required is beyond any reasonable doubt, which imply that in discharging the burden, all the essential ingredients of the offence must be established to the satisfaction of the Court. See Shola V. State (2020) 8 NWLR (1727) 530 and Olayiwola V State (2021) 17 NWLR (PT.1806) 579. – Per Y. A. Bashir, JCA

RAPE – DEFINITION OF RAPE

The charge against the Appellant is for the offence of rape which was defined by His Lordship Oguagu JSC in Ogunbayo V The State (2007) SC (Pt. 11) 1 at 16 thus: ’’Rape in legal parlance means a forcible intercourse with a girl or woman without giving consent to it. That the most important and essential ingredient of the offence is penetration.’’ Idi V State (2017) LPELR 42587 (SC). To drive the definition home, rape could also mean 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 intimation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act. See Posu V State (2011) 3 NWLR (PT. 1234) 393, Iko V State (2001) 7 SC (pt. 11) 15, Afor Lucky V State (2016) LPELR – 40541. Generally a person under the age of 14 years is incapable of giving consent. Thus once it is proved that the accused had sexual intercourse with a child under 14 years of age he is automatically guilty of rape. See Shuaibu Isa V Kano State (2016) LPELR – 40011 (SC). Finally penetration no matter how slight is the most important and essential element of the offense. See Iko V State (Supra) and Jegede V State (2001) 14 NWLR (pt. 733) 264. – Per Y. A. Bashir, JCA

PENETRATION – THE LEVEL OF PENETRATION THAT AMOUNTS TO RAPE – EYE-WITNESS EVIDENCE IN RAPE OFFENCES

The law is trite that mere penetration of the man’s penis into the female vagina no matter how slight or weak is sufficient to sustain conviction of rape. Therefore where there is penetration even not of such a depth as to injure the hymen of the lady, it has been held to constitute the crime of rape See Jegede V. State (supra), Musa V State (Supra), Ogunbayo V State (2007) 8 NWLR (pt. 1035) 157, Natasha V State (2017) LPERL – 42359 (SC).

Evidence of a direct eye witness to the commission of rape is not a condition precedent infact it is difficult or rather impossible to get an eye witness to rape, as the offence is discreetly committed unless nemesis catches up with the culprit.

The evidence of the prosecutrix if believed by the trial Court is sufficient to establish the offence of rape and ground a valid conviction. More particularly where there exist some corroborative substance or evidence. There is no hard and fast rule as to what constitute corroboration, it can come in so many different forms. Even from the evidence or statement of the suspect (Appellant). – Per Y. A. Bashir, JCA

PENETRATION – THE AMOUNT OF PENETRATION THAT CONSTITUTES AN ACT OF SEXUAL OFFENCE

The slightest penetration will be sufficient to constitute the act of sexual intercourse. See Iko V. State (2001) 14 NWLR (pt. 732) 221, Ogunbayo V State (2007) 8 NWLR (pt. 1035) 157 at 182 – 183 where it was held that sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina.

That the slightest penetration will be sufficient to constitute the act of sexual intercourse. – Per Y. A. Bashir, JCA

RAPE – THE NECESSITY OF HAVING A MEDICAL REPORT IN A RAPE CASE WHEN THE ACT WAS ONLY DISCOVERED AFTER A LONG TIME OF IT SERIALLY HAPPENING

In the circumstance of this case, medical evidence is not necessary because what the medical report will seek to establish is an injury to the hymen, and since the act has been going on for over 3 years before it was discovered I do not think medical report will show injury on the victims already ravaged private part. Again considering the fact that the offence was not discovered immediately but only after a long time of it serially happening the possibility of finding seminal stains or remains on the cloth or body of the prosecutrix or even the appellant or the bed on which the act was consummated is very remote. See Benjamin V State (2016) LPELR – 42041 (CA). Accordingly lack of medical report in my view is not fatal in the given circumstances. – Per Y. A. Bashir, JCA

CASES CITED

NILL

STATUTES REFERRED TO

1. Criminal Code Law Ondo State, 2006
2. Evidence Act 2011
3. Criminal Code Law Ondo State, 2006

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