Edet Okon Iko Vs The State (2001)
LAWGLOBAL HUB Lead Judgment Report
KALGO, J.S.C.
The appellant, Edet Okon Iko, was charged with the offence of rape contrary to section 358 of the Criminal Code of the then Cross River State. He was tried by Nkop J. (as he then was) at Uyo High Court in the Uyo Judicial Division. He was found guilty of the offence at the end of the trial and was sentenced to 7 years imprisonment with hard labour. He appealed to the Court of Appeal Calabar which heard and dismissed his appeal. He now appeals to this court.
The facts of this case as I understand them would appear to be as follows; PW2, Asuquo Etim Nyong, is the father of PW1, Grace Asukwo Etim, the prosecutrix and victim of the offence. On 2nd of May 1982, PW2 who was then living at Creek Town, Calabar with his family handed over his daughter PW1, to the appellant, a taxi driver, to take her to Uyo. PW1 was then a student of the Christian Secondary Commercial School, Uyo. PW2 told the appellant to drop PW1 at Itam junction. He gave the appellant N5 and asked him to give P.W.1 N1 on dropping her at Itam Junction so that she could use the amount for her transport fare to a house at Uyo before proceeding to the school.
On that day, the appellant arrived at Uyo at about 6 pm. He did not drop PW 1 there but took her with other passengers to Ikot Efre Itak village where he dropped all the passengers except PW1. He came back to Uyo with PW1 where they arrived at 8 pm. PW1 said that on their way back to Uyo from Ikot Efre Itak village, the appellant asked her to spend the night in his house at Uyo that night. She said no; but the appellant drove his vehicle, with her to his house at No.1 Effiong Ukpong Street. There, P.W.1 refused to enter the house, came out of the vehicle, removed all her luggages from the vehicle (comprising of a bag of gari, a bag containing books and her clothes) and wanted to take a motor cycle to her house. The appellant took back the luggages into his vehicle and promised to take her direct to her house at Akpan Etuk street. PW1 then entered the vehicle and the appellant took her to Akpa Essien street instead of Akpan Etuk street, and asked her to come down and go home. PW1 said she then cried and begged the appellant to take her home. It was raining heavily at this time. The appellant wound up the glasses of the vehicle doors and locked the vehicle with only him and PW1 inside. The appellant struggled with PW1 inside the vehicle and finally over powered her, removed her pant and had sexual intercourse with her. He then drove her back to his house where he again off-loaded her luggages and put them in his house. He told PW1 to wait for him as he was going to park his vehicle. He then drove away. This was after 9.00 p.m.
PW1 then ran out of the house (leaving her luggages in the appellant’s house) and entered No.5 Effiong Ukpong street (appellant’s neighbours). PW1 said she narrated her ordeal to a woman (PW4) and her husband whom she found in the house where she slept until the following morning. The following morning PW1 reported the incident to her father PW2, who in turn reported the matter to the Police in Uyo and the appellant was later arrested. This is the gist of what happened in this case as narrated by the witnesses at the trial.
In this court, the parties filed and exchanged briefs of argument as required by the rules of court. The appellant raised only one issue for determination of this court which reads:-
“whether the learned Justices of the court below were right in holding that from the evidence adduced at the trial court, the testimony of PW1 contained no serious contradictions and was only amply corroborated in all material respects including the question whether or not there was consent.”
For the respondent, 5 issues were formulated as follows:-
“1. Whether there is a material contradiction in the evidence of PW1 and PW2 in respect of the prosecution’s case sufficient in law to impugn the appellant’s conviction.
- Whether there is material contradiction in the evidence of PW1 andPW4 in the prosecution’s case sufficient in law to impugn the appellant’s conviction.
- Whether in the circumstances of this case, failure to call a medical Doctor by the prosecution to testify is sufficient in law to impugn the appellant’s conviction.
- Whether the evidences (sic) of PW1 was sufficiently corroborated so as to merit the conviction of the appellant.
- Whether in the circumstances of this case, the conduct of PW1 amounts to consent.”
Looking at the grounds of appeal filed by the appellant in his notice of appeal in this case, it is clear to me that the only issue raised by him was properly distilled from the grounds of appeal.
On the respondent’s issues, it appears to me that issue 3, was not supported by any ground of appeal filed by the appellant and since there was no cross appeal by the respondent, that issue cannot be argued in this appeal and is hereby struck out. The other 4 issues of the respondent can properly be argued together as set out in the only issue raised by the appellant.
The charge against the appellant in the trial court reads:-
“STATEMENT OF OFFENCE RAPE CONTRAY to section 358 of the Criminal Code. PARTICULARS OF OFFENCE
EDET OKON IKO on the 2nd day of May, 1982 at Akpan Essien Street, Uyo in the Uyo Judicial Division had carnal knowledge of GRACE ASUQUO ETIM without her consent.”
The appellant pleaded not guilty to the charge after it was read and explained to him in Ibibio the language he understood. The prosecution called 4 witnesses to prove their case and the appellant gave evidence in his own defence but called no witness.
Counsel for the parties addressed the trial court before the case was adjourned for judgment.
“Rape” in legal parlance means a forcible sexual intercourse with a girl or a woman without her giving consent to it. The most important and essential ingredient of the offence is penetration and consent of the victim is a complete defence to the offence.
Let me first deal with the question of consent. PW1 emphatically denied that she consented to the appellant having sexual intercourse with her throughout her testimony. She maintained complete innocence all through. The learned trial Judge, after considering the sequence of events in the case, came to this conclusion in P. 49 of the records:-
“I am unable in the circumstances to agree that little girl consented to the ordeal she passed through with the accused person, that evening.”
The Court of Appeal also agreed with him on his assessment of the evidence before him and found that there was no consent by PW 1 and that everything that happened to her on that day was done against her will. I have also carefully examined the evidence adduced at the trial and find myself in complete agreement with the lower courts that there was nothing to indicate from the evidence that the issue of consent has arisen in this case.
I shall now examine the question of contradictions in the evidence of the prosecution witneses. There is no doubt that there were some contradictions in the evidence of PW1 and PW2, her father, on the question of whether she was to be dropped at Itam junction or Uyo town. Whereas PW2 maintained that his instructions to the appellant was to take PW1 to Itam junction as he (the appellant) was not going direct to Uyo. PW 1 said that the instruction was that she should be taken to Uyo. And although the learned trial Judge did not resolve the contradiction as such, he believed the evidence of PW 1 that she was to be dropped at Uyo motor-park.
The next item of contradiction also centred around the pant of PW1. This was mentioned in the evidence of PW3 and PW4. PW1 said her pant was torn and PW3 , the investigating Police Officer said she told him that her pant was not torn. PW4 said that when PW 1 came to her in the night in question, PW1 looked as if she was holding her pant, but PW 1 did not show the pant to her. On this issue, the evidence of PW4 did not contradict the evidence of PW 1 or PW3, but the evidence of PW 1 and PW3 contradicted each other on whether the pant was torn or not. Unfortunately the pant was not produced in court as Exhibit and the trial court did not use it in coming to its decision. In fact, the learned trial Judge considering this evidence said:-
“It is not possible to resolve this conflict since the pant was not tendered in evidence. However, failure to tender the pant, to my mind, is not sufficient to demolish the case for the prosecution …”
I agree with him on this point.
The 3rd item of contradiction mentioned in the appellant’s brief is in the evidence of PW4 when she said that on 2/5/82, she was in his uncle’s house, whereas PW1 said she met her (PW4) in her husband’s house on that day at No.5 Effiong Ukpong Street. The learned trial Judge believed PW 1 that she spent the night in question with PW4 in the latter’s house. PW4 confirmed this in her testimony; she was not asked and she did not say that No.5 Effiong Ukpong Street was her Uncle’s, and there was no suggestion that it was not. What is important in her testimony was the fact that PW1 came to meet her in the house on 2/5/82 in the night and spent the night with her in the house. PW4 confirmed this.
From all the 3 items of contradictions I examined above, there is none of them which appears to me to be of any vital importance or of such substance as to affect the conviction of the offence of rape. I also agree with the Court of Appeal when it held on P. 105 of the record that:-
“The learned trial Judge had a proper and full appraisal of all the evidence before him and found that there was no material contradiction … ”
in the evidence of the prosecution. It is now well settled that for contradictions on evidence of witnesses for the prosecution to affect conviction, they must be sufficient to raise doubt as to the guilt of the accused. In the instant case the minor discrepancies in the evidence of the prosecution witnesses are not in my view, sufficient, by themselves, to entitle the appellant to an acquittal. See Ogoala v. State (1991) 2 NWLR (Pt.175) 509 at 525; Nwosisi v. State (1976) 6 SC 109; Ejigbadero v. State (1978) 9-10 SC 81; Atano v. A.-G. Bendel State (1988) 2 NWLR (Pt.75) 201; Ayo Gabriel v. State (1989) 5 NWLR (Pt.122) 457 at 468 – 469.
I shall now consider the question of corroboration raised in the appellant’s issue for determination. The learned counsel for the appellant submitted in his brief that the Court of Appeal erred in affirming the views of the learned trial Judge that the evidence of PW1 was amply corroborated. Counsel further submitted that the fact that the appellant took PW1 to his house and asked her to wait for him while he went to park his vehicle and that PW1 ran away to the house of PW4 where she told PW4 and her husband what happened to her, cannot constitute corroboration in law. He cited the case of Francis Okpanefe v. The State (1969) 1 ALL NLR 420 at 423-424.
The learned counsel for the respondent however submitted in her brief that although as a rule of practice courts always insist that it is unsafe to convict on the uncorroborated evidence of a prosecutrix like PW 1, the court can still convict without it, if the court is fully satisfied of the truth of the evidence of the prosecutrix. She cited the case of R. v. Berry (1925) I.G.P v. Sunmonu (1957) WRNLR 23. Learned counsel further submitted that in this case the learned trial Judge was satisfied of the truth of the PW1’s evidence which he found to be amply corroborated before he convicted the appellant. She referred to the trial Judge’s findings on pp 50-51 of the record and the views of the Court of Appeal on them on p. 105 of the record.
“Corroboration” in my understanding simply means “confirming or giving support to” either a person, statement or faith. What then constitute corroboration in law In R. v. Baskerville (1916-17) All ER Reprint 38 at 43, Lord Reading CJ defined what evidence constitutes corroborative evidence for the purpose of the statutory and common law rules when he said:-
“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offence for which corroboration is required by statute” (Italics mine)
It therefore follows, in my view, to ask what is the purpose of corroborative evidence In D.P.P. v. Hester (1973) AC 296 at 315, Lord Morris said:-
“The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible: and corroborative evidence will only fill its role if it itself is completely credible evidence.” (Italics mine)
The above two quotations put together would appear to mean that while corroborative evidence must be independent and capable of implicating the accused in relation to the offence charged, it must be credible and must go to confirm and support that evidence which is sufficient, satisfactory and credible whether the case is one in which it is required by statute or by rule of practice.
I now come to consider the class of criminal cases in which corroboration is required to prove the guilt of the accused. It is common ground that in all cases where the law provides that corroboration is necessary, a conviction of an accused can only be valid when there is such corroborative evidence. That is the case where statutory corroboration is required. But there are other cases in which though there is no statutory requirement for corroboration, yet as a matter of practice, corroboration though not essential, is almost always required before conviction. The latter is mostly in cases of evidence on oath. Any witness in any of these categories would conveniently be regarded as “suspect” witness and that is why the law requires that if any conviction is to be based on their evidence, the Judge must warn himself or the jury as the case may be, of the danger of convicting on the uncorroborated evidence of such witness. Lord Diplock in D.P.P. v. Hester (supra) explained the danger sought to be cleared by this rule when he said on P.244 of the report that:-
“The danger sought to be obviated by the common law rule in each of these three categories of witnesses is that the story told by the witness may be inaccurate for reasons not applicable to other competent witnesses, whether the risk be of deliberate inaccuracy, as in the case of accomplices, or unintentional inaccuracy, as in the case of children and some complainants in cases of sexual offences. What is looked for under the common law rule is confirmation from some other source that the suspect witness is telling the truth in some part of his story which goes to show that the accused committed the offence with which he is charged.”
In the instant appeal, we are dealing with the first category of those witnesses i.e complainants in a sexual offence. Rape is a sexual offence and PW 1 is the prosecutrix and the complainant in the case.
The learned trial Judge has quite properly recognised the issue of corroboration in sexual offences like this one when on p. 50 of the record he said:-
“Corroborative evidence is such evidence that goes to support or strengthen the assertions of the complainant. There is no statutory provision in this country that makes such corroboration mandatory. It has however been considered expedient that, as a matter of practice. the court should be very slow to convict on the uncorroborated evidence of the complainant. This has been the view held in quite a number of cases decided in this country.” (Italics mine)
I agree entirely with the learned trial Judge that what he said is the correct legal position in this country on the issue of corroboration of the evidence of a complainant in a sexual offence. It would also appear to me that by that statement, he had warned himself of the danger of convicting on the uncorroborated evidence of the com also appear to me that by that statement, he had warned himself of the danger of convicting on the uncorroborated evidence of the complainant (PW1) in this case.
The learned trial Judge then proceeded in his judgment to ask a pertinent question. He said:-
“The question to examine now is whether there is anything outside the evidence of the PW 1 to corroborate her evidence.”
By saying this, it appears to me very clearly that he has heeded to the warning and that he did not intend to convict on the evidence of PW1 alone. He would look for corroborative evidence. What then did he find as corroborative evidence On P. 50 of the record from lines 16-25, he dealt with the issue of the pant when he said:”
The PW 1 swore that the under pant she wore at the material time was torn during the struggle. The police who investigated the cases swore that he was told by the PW1 that the pant was not torn. It is not possible to resolve this conflict since the pant was not tendered in evidence. However failure to tender the pant, to my mind is not sufficient to demolish the case for the prosecution, because there is more other evidence which serve as corroboration. ” (Italics mine)
He then proceeded on the same page to list what he found to be corroboration thus:-
“First, the accused himself admitted he took the PW1 to his house and asked her to wait there while he went to park the vehicle.
Secondly, the PW1 said she ran away from the house of the accused person into the house of the PWIV at No.5 Effiong Ukpong street. This has been confirmed by the accused when he said that by the time he return (sic) from where he went to park the car, the PW1 had left his house to a place he did not know. She ran and left her luggages in the house of the accused. It was the following day that she went with her father and took the bags away.”
These are the only pieces of evidence which the learned trial Judge found to be corroborative evidence and of which he was satisfied before convicting the appellant. The Court of Appeal agreed with the learned trial Judge that this constituted ample corroboration of the evidence of PW1 that she was raped and refused to interfere with the Judge’s findings.
With due respect to the Court of Appeal, I think they were wrong to affirm that the trial Judge’s finding of corroborative as listed by him properly constituted ample corroboration of the offence of rape on PW1. The only 2 items of corroboration listed by the learned trial Judge were:-
(i) the fact that the appellant admitted bringing PW1 to his house; and
(ii) the PW1 ran away from the house when the appellant went to park his vehicle.
What have these 2 items got to do with the confirmation that PW1 was actually raped There was no doubt or dispute that PW1 was in the appellant’s house on the night in question and she ran away to the house of PW4 where she spent the night. The appellant did not dispute this in his evidence at the trial. It is also true that PW1 told PW4 and her husband what happened between her (PW1) and the appellant. This will not, in my respectful view, constitute corroboration of the material aspect of rape, but can be evidence of the consistency of the conduct of the PW 1 with her evidence at the trial. See R. v. Lillyman (1896) 2QB 167, R. v. Osborne (1905) 1 K.B. 551; R v. Hedges (1910) 3 Cr. APP. R 263.
It is trite law that evidence in corroboration must be independent testimony, direct or circumstantial, which confirms in some material particular not only that an offence has been committed but that the accused has committed it. See R. v. Baskerville (supra). In this case the evidence which the learned trial Judge found to be corroboration and which was confirmed by the Court of Appeal is not such evidence. I find no such other evidence in this case.
It is my respectful view, and having regard to the authorities I have quoted earlier in this judgment that although corroboration of the evidence of the complainant in a rape case is not essential in law, it is always looked for in practice. In the case of Ibeakanma v. Queen (1963) 2 SCNLR 191 at 194-195 this court said:-
“It is an established practice in criminal law that though corroboration of the evidence of the prosecutrix in a rape case is not essential in law, it is, in practice always looked for and it is also the practice to warn the jury against the danger of acting upon her uncorroborated testimony.” (Italics mine)
In the Ibeakanma’s case (supra) the appellant was charged with rape in that he had sexual intercourse with a married woman against her will. The appellant denied the offence. The trial Judge relied on the scar on the appellant’s shoulder as a result of a bite by the complainant during the intercourse, as corroborative evidence and he convicted the appellant. The Supreme Court found that in the absence of any other evidence implicating the appellant on the offence of rape, the scar on the appellant’s shoulder alone did not constitute corroboration. The appellant was discharged and acquitted.
The essential and most important ingredient of the offence of rape is penetration and unless penetration is proved the prosecution must fail (See R. v. Hill, 1 East P.C 439). But penetration however slight, is sufficient and it is not necessary to prove an injury or the rupture of the hymen to constitute the crime of rape. (See R. v.Allen 9C &p.31).
In the instant appeal, P.W.1 testify that:-
“There in the van, he had carnal knowledge of me. When the accused over powered me, he inserted his penis into my vagina and had carnal knowledge of me once.”
The learned trial Judge believed this evidence and held that:”
What is required is evidence that the accused inserted his penis into the victim’s vagina. Once that has been proved, the insertion, no matter how slight, is sufficient penetration in law.”
The Court of Appeal also agreed with this finding by the trial Judge and confirmed the conviction of the appellant. I am of the view, that both the trial court and the Court of Appeal are wrong on this point. There was no medical or other evidence to support the evidence of penetration apart from what PW1 said. The two pieces of evidence which the learned trial Judge found to be corroborative evidence are in my view not corroboration of the crime of rape in law. The circumstantial evidence in this case is not sufficient at all to connect the appellant with the actual commission of the offence.
The fact that PW1 said that the appellant inserted his penis into her vagina is not ipso facto sufficient proof of penetration in the absence of corroborative evidence in a case of this nature. This is because, as I said earlier, the evidence of the prosecutrix, PW1 in this case needs in practice to be corroborated in material particular implicating the appellant before he could be found guilty of rape. I find support in this view in the case of Simon Okoyomon v. The State (1972) 1 NMLR 292, (1972) 1 SC 21 at p. 33. In that case the accused was charged with the offence of having unlawful carnal knowledge (rape) with a girl under 14 years without her consent. The evidence was that “the accused fell her down, removed her pant and his own pair of shorts, and started to have carnal knowledge of her. She shouted and hailed PW3, the accused covered her mouth with a piece of cloth. She was lying on her back as the accused lay on her and inserted his penis into her vagina, shaking his waist up and down on her.” The Supreme Court considered the whole evidence and finally found that there was no evidence of penetration just because the complainant said the accused inserted his penis into her vagina. The court held on p.33 of the report:-
“(a) That we are of the view that the prosecution had not established that the accused did have unlawful carnal knowledge of the prosecutrix in the sense that there had been penetration as required by section 300 of the Criminal Code. It was not enough that the prosecutrix alleged the insertion of the accused’s penis into her vagina or that he lay on her. See Jos N.A. Police v. Allah Na Gani (1968) NMLR 8 ” (Italics mine)
In the Okoyomon’s case, (supra) the evidence of the complainant PW4 was substantially corroborated by that of PW3 who was together with her before the accused took PW4 away to where he had sexual intercourse with her. In fact she saw the accused on top of PW4 during the act. That was why in the absence of proof of penetration, the accused was found guilty of attempted rape – (a lesser offence) by the Supreme Court.
From all what I have said above, I am of the firm view that there is need to corroborate the evidence of PW1 in material particular in the circumstances of this case as a matter of practice and that the 2 items listed by the learned trial Judge in his judgment as constituting such corroboration cannot amount to corroboration in this case. The Court of Appeal was therefore wrong to accept them as ample corroboration. I resolve the only issue for determination in this appeal in favour of the appellant.
For all the reasons stated above, this appeal must succeed and I allow it. I find that there are good and substantial reasons for me to interfere with the concurrent findings of the trial court and the Court of Appeal in the circumstances of this case. I so do.
Accordingly, this appeal succeeds and it is allowed. The conviction and sentence passed on the appellant by the trial court and affirmed by the Court of Appeal are hereby set aside. The appellant is hereby acquitted and discharged,
SC.177/2001
