Alex Ivwighre V. The State (2008)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
This is an appeal against the Judgment of Delta State High Court, Sapele Judicial Division in Charge No: HCI/27C/2014 ? THE STATE VS ALEX IVWIGHRE delivered on the 20th day of June, 2017, wherein the trial Judge convicted the Appellant on counts of Rape and Conspiracy and sentenced him to 10 years imprisonment on each of the counts without option of fine. The terms of imprisonment were to run concurrently.
Briefly, the facts of the case, according to the prosecution, are that the 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 she was raped by the Appellant who was wearing a mask as at the time the offence was committed. 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.
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?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 discharged him on the offence of robbery.
The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court.
?The Learned Counsel for the Appellant formulated four issues for the determination of the appeal. The issues are set out as follows:-
(1) Having regard to the evidence adduced, whether the Appellant was the person who raped Emomo Timi James on the 4th day of February, 2014. (Distilled from Grounds 3 & 4).
(2) Whether the conviction and sentence of the Appellant for Rape and Conspiracy is justifiable, having regard to the evidence adduced. (Distilled from Grounds 1, 2, 7 and 9).
(3) Whether the learned trial Judge was right in ascribing probative value to Exhibit ?B?, a medical report as evidence of corroboration that the Appellant raped Emomo Timi James. (Distilled from Ground 8).
(4) Whether there are
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inconsistencies and doubt in the evidence of the prosecution witnesses and whether the learned trial Judge was right in failing to resolve the doubt in favour of the Appellant. (Distilled from Grounds 5 & 6).
The Learned Counsel for the Respondent, on the other hand, formulated a sole issue for the determination of the appeal. The said issue is set out as follows:-
?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.?
At the hearing of the appeal, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Delta State High Court delivered on 20/6/17. The notice of appeal was filed on 12/7/17. The record of appeal was transmitted on 28/7/2017. The Appellant?s brief was filed on 9/8/17, but it was amended and filed on 15/9/17. The said amended Appellant?s brief was deemed as properly filed on 19/1/2018.
?The Learned Counsel for the Appellant adopted and relied on the said amended
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Appellant?s brief of argument as his argument in urging that this appeal be allowed.
In his response, the Learned Counsel for the Respondent also referred to the Respondent?s brief of argument filed on 13/2/2018 which was deemed as properly filed on 18/4/18 as his argument in urging that this appeal be dismissed.
I have perused the issues formulated for the determination of the appeal by Counsel for the parties. The issues are more or less the same because the issues formulated for the determination of the appeal on behalf of the Respondent encapsulate the issues formulated on behalf of the Appellant. I will therefore rely on the lone issue formulated for the determination of the appeal on behalf of the Respondent.
ISSUE FOR THE DETERMINATION OF THE APPEAL
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.?
?The Learned Counsel for the Appellant stated that the offences of Rape and Conspiracy are provided for in
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Sections 357, 358 and 516 of the Criminal Code Cap C.21 Laws of Delta State of Nigeria.
He submitted that for the offence of Rape to be proved, the prosecution must establish the following:-
(a) That a man, the accused had sexual intercourse with a woman or girl, the victim.
(b) The act of sexual intercourse was unlawful not being between husband and wife.
(c) That the act of sexual intercourse was done without the consent of the victim or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation.
(d) 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 Prosecutrix consented or not.
(e) That there was penetration.
He submitted further that for the offence of conspiracy to be established, it must be proved under Section 516 of the Criminal Code that:-
(a) That there was an agreement between two or more persons to do an illegal act or lawful act by unlawful means; and
(b) That the illegal act was done in furtherance of the agreement that each of the accused persons
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participated in the illegality.
The Learned Counsel for the Appellant submitted that nowhere in the evidence adduced was it said that the Appellant met, agreed and conspire with any other person to commit any offence either robbery or rape in relation to Emomo Timi James: the Prosecutrix. He contended that there cannot be conspiracy unless at least two or more persons conspire to do an unlawful act. He relied on ? IKEMSON VS STATE (1998) 1 ACLR Page 80 at 102.
On Rape, the Learned Counsel for the Appellant submitted that the finding that the accused is the one who had unlawful sexual intercourse with the Prosecutrix is not supported by the evidence adduced.
He went further in his submission that in the absence of proof of the ingredients of the offence charged beyond reasonable doubt, lies by an accused person can never ground a conviction.
He relied on the following cases:
– OKEREKE VS STATE (2016) All FWLR Part 827 Page 779 at 801 ? 802 paragraphs C ? D;
– GEOFFREY VS F.R.N. (2016) All FWLR Part 857 Page 419 at 464 paragraphs B ? C.
?It was submitted further on behalf of the Appellant that the
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trial Judge relying on the evidence of identification by PW1 ought to have warned himself because there was no corroborative evidence. He relied on the following cases:-
– ADEOTI VS STATE (2009) 8 ACLR Page 231 at 300;
– STATE VS AJAYI (2016) All FWLR Part 854 Page 1838;
– EZEUKO VS STATE (2016) All FWLR Part 831 Page 1529;
– FRIDAY VS STATE (2017) All FWLR Part 885 Page 1814 at 1829 Paragraphs B ? D;
– OMISADE VS QUEEN (1964) NSCC Page 170.
The Learned Counsel for the Appellant submitted that corroboration is lacking in the case. He relied on the following cases:-
– OKOYOMON VS STATE (1972) NMLR Page 292, (1972) 1 SC Page 21;
– IKO VS STATE (2001) FWLR Part 68 Page 1161, (2001) NWLR Part 732 Page 221, (2001) 7 SCNJ Page 382;
– IGBINE VS STATE (1997) 9 NWLR Part 519 Page 101.
It was also submitted on behalf of the Appellant that the learned trial Judge was in grave error when he relied on the medical report as evidence of corroboration and convicted the Appellant.
?Learned Counsel for the Appellant contended that Exhibit ?B?, the Medical Report was not made by a Doctor in the
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service of any Government in Nigeria. He relied on the following cases:-
– WAMBAI VS KANA NATIVE AUTHORITY (1965) NMLR Page 15;
– KURA VS C.O.P. (1967) NNLR page 148.
The Learned Counsel for the Appellant also submitted that the learned trial Judge was wrong in failing to resolve the doubt in prosecution?s case in favour of the Appellant. He relied on the case of:- WAZIRI VS STATE (1997) 3 NWLR Part 496 Page 702.
He finally urged that the appeal be allowed and Judgment of the lower Court delivered on 27/6/2017 set aside.
In his response to the submission of Counsel for the Appellant, the Learned Counsel for the Respondent submitted that having regard to the evidence before the Court that the trial Judge was right in law when he held that the prosecution proved the case of rape and conspiracy to commit the offence of robbery against the Appellant beyond reasonable doubt. He relied on Section 135 of the Evidence Act and the following cases:-
– OGUNZEE VS THE STATE (1998) 58 LRCN Page 3512 at 3551.
– EDAMINE VS THE STATE (1996) 3 NWLR Part 38 Page 530 at 531;
– ADONIKE VS STATE (2015) VOLUME 242 LRCN
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Page 1 at 30 (u).
?The Learned Counsel for the Respondent also referred to the evidence of PW1 and PW2 and submitted that the evidence of PW1 was corroborated by exhibit ?B?.
It was also stated that the Appellant?s defence was that he was not at the scene of crime and that he was at Ituoyo village Okpara inland. But that the defence was investigated and found to be false.
It was submitted by Counsel for the Respondent that the Appellant did not fulfill the conditions to enable him benefit from the defence of Alibi.
On Exhibit ?B? i.e. the Medical Report, the Learned Counsel for the Respondent referred to the evidence of PW1 when she identified the Appellant as the person who assaulted her sexually and the evidence was corroborated by Exhibit ?B? i.e. the Medical report.
?On the offence of conspiracy to commit felony to wit Robbery, the Learned Counsel for the Respondent referred to the evidence before the Court that the accused with some other persons at large invaded the house of PW1 and attempted to steal a motor cycle, an attempt that failed. But that he later raped PW1.
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The PW2 testified that he went to the home of the accused and interacted with the grandmother where he claimed that he slept. But that the grandmother refused either to confirm or deny the assertion that the accused slept in her house in the night of 4/2/2014.
The accused was convicted and sentenced to 10 years imprisonment without option of fine.
The Learned Counsel for the Respondent submitted that the lower Court was right in law to have inferred conspiracy.
He finally urged that this appeal be dismissed.
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.
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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.
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).
The Offence of Rape
The Appellant was convicted for 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,
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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).
?In order to prove its case at the lower Court, the PW1 ? EMOMO TIMI JAMES testified as follows:-
?On the 4th of February 2014 in the night, as I was sleeping. I heard knock on my door. I did not answer. They hit the door several times but I did not answer. They passed through the window, break the window and then ordered me to open the door. I refused to open the door. They threatened to kill me and my baby. I then went to open the door. They then came into the house. They ordered me to surrender to them my husband new motorcycle key. I said I do not have it. They attempted
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dragging the motorcycle but they could not. They then asked me to drop my baby. That I should choose my life or dropping the baby. They dragged me outside the house to an uncompleted building outside our compound. Two people entered my house. The other then tore my pant. He brought out his penis and put it inside my vagina.
He continued to fuck me. He removed the mask from his face. He was initially putting on mask. There was no light.
When the accused was walking away from me NEPA brought light. I recollect his face. As they left, my neighbour came outside. They then shouted. One of the tenant saw my situation and bath me. When my husband came, I told him what happened. We went to the soldiers to lay complaint. On our way to the station, I saw the accused on the way. My husband went to his friend and asked him whether he knows the accused. He said yes. That his name is Alex Ivwighre. His friend asked him what is happening, he said nothing. We went to the station to lay complain. I went to General Hospital, Ughelli for examination. My husband gave police the result of the test. I made statement at the police station…?
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In this appeal, the evidence on record which was believed by the trial Judge is that the Appellant and his colleague broke into the residence of PW1, dragged her into an uncompleted building where the Appellant tore her pant and inserted his penis into her vagina and had sexual intercourse with her without her consent. The evidence showed that the Appellant unconsciously removed his mask after the incident and was promptly recognized by his victim i.e. PW1 with the aid of light from the surrounding buildings.
The PW1 who is the victim in this case identified the Appellant as the person who unlawfully had sexual intercourse with her. The medical report, Exhibit ?B? corroborated the fact that PW1 was violated.
In my view, the learned trial Judge was right in law when he held that the PW1 suffered sexual assault. And Exhibit ?B? the medical report tendered in this case showed that on examination of PW1,
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laceration and bruises of the hymen was noticed on her. 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).
The Learned Counsel for the Appellant raised the issue that it was the friend of PW1?s husband who suspected the Appellant. This in my view, may be as a result of the type of question put to her at the lower Court.
?A careful reading of the evidence of PW1 set out earlier in this Judgment showed that PW1 marked and recognized the face of the Appellant when NEPA brought light. The
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friend of PW1?s husband may have suspected the Appellant but the fact remains that the PW1 who is the victim, gave eyewitness account of how she recognized the Appellant.
The Appellant also raised the defence of Alibi. He denied the charge against him and stated that he was not at the scene of crime when the offence was committed.
The defence of Alibi will not avail the Appellant because there are credible evidence which pinned the Appellant to the scene of crime on the day the crime was committed.
The PW1, in her evidence set out earlier in this Judgment, showed how the Appellant unlawfully had sexual intercourse with her.
?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
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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.
?Applying the principles enunciated above to this case, it is clear from the facts of this case that:-
(a) The Appellant in his statement, told police that he was not in town when the incident happened. He was not specific as to where he was at the time the offence was committed.
(b) The police visited the place the Appellant claimed he was when the incident happened. The police questioned his grandmother who refused to confirm whether the Appellant slept in the house on the night the incident took place.
(c) In view of the claim by the prosecution that the Appellant was seen at the scene of crime and he did not call his grandmother as a witness to support his claim that he slept in the house with his grandmother.
(d) The prosecution in this case pinned the Appellant to the scene of crime. (See the evidence of PW1 set out above).
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I am of the view that the findings of the learned trial Judge on this issue is correct. The findings are not perverse.
On the offence of Conspiracy to commit felony to wit Robbery.
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).
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.
?In this appeal under consideration, the PW1 testified as follows:-<br< p=””
</br<
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on the 4th of February 2014, in the night, as I was sleeping I heard knock on my door. I did not answer. They hit the door several times but I did not answer. They passed through the window, break the window and then ordered me to open the door. I refused to open the door. They threatened to kill me and my baby. I then went to open the door. They then came into the house. They ordered me to surrender my handset. They forcefully took it from my hand after hitting me. They ordered me to surrender to them my husband?s new motorcycle key. I said I do not have it. They dragged me outside the house to an uncompleted building outside our compound. Two people entered my house. The other then tore my pant.?
?It is clear from the above evidence and the finding of the learned trial Judge who convicted
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the Appellant that conspiracy was inferred from the failed attempt to steal.
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.
The Learned Counsel for the Appellant contended that Oghenemine James and Francis Omovughe are vital witnesses who ought to be called by the prosecution in order to prove its case against the Appellant beyond reasonable doubt.
On the other hand, the Learned Counsel for the Respondent contended that the said witnesses are not vital witnesses.
?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
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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).
Consequent upon the foregoing, the lone issue in this appeal is therefore resolved in favour of the Respondent and against the Appellant.
In the result, it is my view that this appeal lacks merit and it is hereby dismissed.
The Judgment of the lower Court in Charge No ? HCI/27C/2014 Between ? THE STATE VS ALEX IVWIGHRE delivered on the 20th day of June 2017 is hereby affirmed.
?Appeal dismissed.
Other Citations: (2008)LCN/2852(CA)
