Joseph Aderemi V. The State (1975)

LawGlobal-Hub Lead Judgment Report

NASIR, J.S.C 

This is an appeal from the judgment of Akhigbe, J. sitting at the Warri High Court, convicting the appellant of the offence of rape contrary to Section 299 of the Criminal Code of the Midwestern State of Nigeria. At the hearing of this appeal on the 6th day of November, 1975, learned counsel for the Appellant sought leave to substitute and argued six new grounds of appeal in place of the original grounds of appeal. After leave was granted learned counsel argued the first and sixth grounds of appeal together; before arguing the other grounds.

After hearing arguments of learned counsel on all the grounds we called upon learned Principal State Counsel to reply to the arguments and in particular to address us in reply to the arguments in respect of grounds 1 and 6. Learned Principal State Counsel indicated (and very rightly in our view) that as a matter of law he did not support the conviction as the evidence of the prosecutrix was unsatisfactory and unreliable and could not support the charge under Section 299 of the Criminal Code. In the light of this submission. It became unnecessary for us to hear further arguments on the other grounds. We allowed the appeal and said that we would give our reasons later. This we now do.

The facts of this case are as follows: The Appellant was a police constable stationed at Warri and living at No. 44 Obire Street and has a girl friend one Miss Rosaline Alakpa (the 4th prosecution witness and hereinafter referred to as prosecutrix) whose address was No. 23 Obire Street, across the road from the Appellant’s house. On or about the 3rd day of May, 1973, the Appellant arranged with the prosecutrix for her to visit him in his house. This the prosecutrix did by going to the Appellant’s house at 11 p.m. in the night. While in the house the Appellant had sexual intercourse with the prosecutrix as a result of which the prosecutrix was injured and she saw blood coming from her private part.

The Appellant assisted her to clean this blood. After the incident the prosecutrix reported the matter to the 2nd and 3rd prosecution witnesses and subsequently the matter was reported to the police. The 2nd and 3rd prosecution witnesses both stated in evidence that the prosecutrix complained that the Appellant had sexual intercourse with her by force. As a result of this complaint the matter was reported to the Police Station where the prosecutrix made a written statement in which she clearly stated that the Appellant used force on her and had sexual intercourse with her. Apparently at the preliminary inquiry she testified as in her statement to the police.

At the trial in the High Court, however, the evidence of the prosecutrix was different. She stated on oath that she went to the house of the Appellant at 11.00 p.m. in response to an arrangement made in the afternoon. She further stated that she consented to have sexual intercourse with the Appellant but because she was afraid she told P.W.2 that a policeman (the Appellant) forced her to have intercourse with him and she repeated the same story at the Police Station.

Thus the 4th Prosecution witness has in her evidence on oath retracted what she told the 2nd and 3rd prosecution witnesses and what she told the police at the Police Station. Faced with this problem learned Principal State Counsel (Mr. Gwam) asked permission of the trial court to “contradict the witness on certain aspects of her evidence” and permission was granted. The witness then was confronted with her statement to the police (Exhibit D) and some portions of her evidence at the preliminary inquiry in the Magistrate’s Court. In answer to questions she admitted having said all what was in the statement to the police and the question asked in respect of her evidence at the preliminary inquiry in the Magistrate court. It is to be noted that the deposition of the witness at the preliminary inquiry have not been put in evidence.

The first and the sixth grounds of appeal as substituted read as follows:-

“1. The learned trial Judge erred in law in finding the Accused/Appellant guilty of the offence of rape contrary to S. 299 of the Criminal Code of the Western Region of Nigeria Applicable in the Mid-West State.

(a) When there was no proof of an essential element of the offence namely absence of consent by the prosecutrix to sexual intercourse with the Appellant.

(b) When there was in fact evidence of consent to sexual intercourse by prosecutrix Rosaline Alakpa (P.W.4).

6. The judgment/verdict of the trial unreasonable and cannot be supported having regard to the evidence.”

Learned counsel for the Appellant argued that for the prosecution to succeed in a case of rape it must prove by evidence that there was no consent to the sexual intercourse or must adduce enough evidence from which to infer that consent was not given. He further submitted that the only evidence from which consent or lack of consent could have been proved in this case was the evidence of the prosecutrix (the 4th prosecution witness). But the evidence as given in court on oath was that the witness gave her consent to the sexual intercourse and there was no other evidence on oath to contradict this evidence. Alternatively as the prosecution had applied under Section 206 of the Evidence Act to contradict or treat this witness as hostile and had been allowed to do so, the effect is that the evidence of the witness could not be relied upon by the court as it has become unreliable and there is no other evidence from which consent or lack of consent could be established. He referred to a number of decided cases to which we would later refer.

Learned Principal State Counsel agreed with the submission made by learned counsel for the Appellant as stated above and agreed that if the evidence of the prosecutrix in this case was unreliable then that was the end of the prosecution case. We share this view. At the trial the prosecuting Principal State Counsel made his submissions in respect of the issue of consent and section 206 of the Evidence Act to the effect that the evidence of the prosecutrix and the evidence of the other witnesses, that is P.W.2, P.W.3, P.W.5 and P.W.1 and together with the statement to the police by the prosecutrix (Exhibit D) and her evidence at the preliminary inquiry, would not only prove lack of consent but would prove that an offence has been committed on the prosecutrix. He further submitted that the case of Joshua v. The Queen (1964) 1 All NLR 1 cited by counsel for the accused was not applicable because in this case the witness said something before a lower court and again said a different thing at the trial. We mentioned these submissions because the learned trial Judge seemed to have accepted them as correct.

Having gone over the facts as far as we consider them relevant to this appeal we have to consider the effect of treating the prosecutrix as a hostile witness under Section 206 of the Evidence Act. The effect of allowing a party producing a witness to impeach the credit of the said witness by showing that the witness made statements inconsistent with the evidence on oath is to make the witness unreliable; and this court has said so, over and over again. In the case of Christopher N. Onubogu and another v. The State (1974) 9 SC 1 at 17 this court said: