Charles Ekpo & anor. v. The State (1976)

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O. MADARIKAN, J.S.C.

We now give our reasons for allowing this appeal on the 2nd of April, 1976.
The Appellants stood trial in the High Court, Calabar, on a charge of rape contrary to section 358 of the Criminal Code cap. 30 Vol.2 of the Laws of Estate states of Nigeria, 1963 applicable in the Cross River State. The particulars of the offence were that at 19, O’Dwyer Street, Calabar, on the 14th of September 1974 they had carnal knowledge of one Affiong Asuquo Okon without her consent.

At the trial, the Prosecutrix and five other witnesses testified for the Prosecution.  Each of the  Appellants also gave evidence and called the father of the Prosecutrix as a witness.

The incident took place in a room at 19, O’ Dwyer Street, Calabar.  Four boys and two girls were in the room from 7.30pm. till about 1a.m.  The four boys were the two Appellants, Maxwell Otudor (P.W.3) and Gabriel; and the two girls were the Prosecutrix (P.W.1) and Theresa Edem (P.W.5)
The 1st P.W. was the Prosecutrix.  She testified that after they had all looked at a photo-album in the room, the 1st Appellant switched off the light and demanded to have sexual intercourse with  her. Continuing her evidence, she said:-

“I cried and told the 1st Accused that he must escort me home.  When he refused, four of them came and held me,  lifted me up and placed me on the bed and had sex with me.  The first Accused was the person who had sexual knowledge of me”.

She shouted until the Police arrived at the scene. Gabriel then escaped through the ceiling and the others were taken to the Police Station.
After the last witness for the Prosecution had testified, leave was granted to the Defence to recall P.W.1.  This time, P.W.1 completely recanted her previous testimony.  She stated that when she was arrested by the Police, she told the Police that the 1st appellant had sexual intercourse with her consent.  The atmosphere which pervaded the scene was depicted by her as follows:-

“After the sexual intercourse, all of us chatted together, played and joked as usual.”
She was cross-examined extensively by the Court and maintained that she consented to having sexual intercourse with the 1st appellant because prior to the incident, he had given her N3.

The following note appears on the record immediately after the cross-examination of P.W.1 by the Court:-

“By Court:I do not believe this particular evidence of this witness.  She has been contaminated by the Accused persons”.

The 2nd Prosecution witness was Christopher Ndifor Obot.  He lived at 19, O’ Dwyer Street, Calabar.  At about 1 a.m. on the day of the incident, he heard someone crying in a room.  He and others knocked the door of the room and when it was not opened, he made a report to the Police.  When the Police arrived at the scene, the door was still locked; and, at the request of the Police, it was opened.  Two girls and three boys then came out of the room.

One of the boys in the room was Maxwell Otudor.  He testified as the 3rd Prosecution witness.  On the issue of consent, he said:-

“While the 1st Accused then switched off the light, and locked the door, He put the key into his pocket.  It was then that the 1st P.W. started to cry and said that she would like to go.  They said she would not go.  The 1st Accused then held her and threw her on his bed.  The other two boys helped him to pull off her pants.  The 1st Accused then had sexual intercourse with her followed by the 2nd Accused and then the boy who escaped when Police arrived at the scene.”

Another eye-witness was Theresa Edem.  She was the second girl in the room.  At the trial, she was the 5th Prosecution witness and her evidence was to the effect that the 1st appellant had sexual intercourse with P.W.1 by force.

The other witnesses for the Prosecution were Police Constables.

The 1st appellant admitted having sexual intercourse with  P.W.1 and his Defence was that it was with her consent.

The 2nd appellant denied having sexual intercourse with P.W.1 but stated that the other three boys (i.e. the appellant, P.W.3 and Gabriel) had sexual intercourse with her with her consent.

In a considered judgement, the learned trial judge (Kooffreh, J. as he then was) reviewed the evidence and expressed the view that the Defence was “fabricated and entirely false”.  He appreciated that the main point in the case was whether P.W.1 consented to the sexual intercourse with both or either of the Appellants and proceeded to consider the issue of consent.  For the reasons stated in the judgement, the learned trial judge took the view that the evidence given by P.W.1 when she was recalled was concocted at the instance of the  Appellants and he dismissed that part of her evidence as false.  In conclusion, the learned trial judge found the Appellants guilty, and they were convicted and each sentenced to a fine.
They have both appealed to this Court against their conviction and the main point canvassed before us in the appeal centred round the issue of consent.  It was submitted on their behalf that not only was there no proof that P.W.1 did not consent to the 1st appellant having sexual intercourse with her, but there was also clear evidence that she in fact did consent.

Learned counsel for the respondent found it difficult to support the conviction and, rightly in our view, he eventually conceded that in view of the evidence of  the Prosecutrix (P.W.1) in which she stated that the sexual intercourse was with her consent, the conviction could not be supported.

In a case of  rape, the person ravished is a competent witness and her evidence is always vital in deciding the most important element in the case, namely, whether sexual intercourse was by force and without her consent.  In the present case, the Prosecutrix has stated on oath (albeit late in the proceedings) that she consented to having sexual intercourse with the 1st appellant.  She in fact buttressed her evidence by saying that she consented because she had received N3 from the 1st appellant and that was why she went to the house of the 1st appellant at O’ Dwyer Street to have sexual intercourse with him.  According to her evidence, that was why she went there with her ”sleeping gown”.  The promiscous nature of the age is clear from the evidence of the Prosecutrix (P.W.1) who said that  the other three boys had sexual intercourse with her and gave her N1 each.  This evidence ought to have led to the irresistible conclusion that the Prosecution had failed to establish the absence of consent by P.W.1.  In our view there was no basis or justification for rejecting this evidence.

We are in no doubt that the learned trial judge was in error to have brushed aside the evidence and convicted the appellant.

For the foregoing reasons, we allowed the appeal of the Appellants, quash their convictions, and entered a verdict of acquittal and discharge of each Appellant.

Other Citation: (1976) LCN/01455(SC)