Thomas F. Olaleye V. The State (1980)

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COKER, J.S.C. 

The appellant was convicted by Hassan, J. (High Court, Sokoto, North-Western State) of rape contrary to section 283 of the Penal Code. The case against him was that he had unlawful sexual intercourse with one Ibidun Jobi, a girl under the age of 14 years on Sunday the 1st September, 1968. The appellant was sentenced to three years I.H.L. and he has appealed to this Court against his conviction.

The only point that deserves any consideration on the appeal is whether there was corroboration as regarded by law of the evidence of the complainant. The facts are despicable and it has not been argued or even suggested before us that there are any circumstances of mitigation.

The complainant, Ibidun Jobi, found by the learned trial Judge to be “between 12 to 13 years” gave evidence at the trial of the appellant and described vividly how the appellant on the day in question had invited her into a room or studio in the compound where both lived, asked her to lie down on the ground, removed her underwear and upper garment, raised her legs up, placed his hands on her mouth and put his penis into her vagina. She stated that she felt considerable pain but the appellant did not release her until he had finished having sexual intercourse with her. She testified that she was so afraid afterwards she could not tell anybody what had happened to her on that day but that on the following day she had to and did inform her parents of the occurrence.

After the complaint police investigation was initiated and in time both the appellant and the complainant were sent to the Gummi Hospital where they were medically examined by Dr. Amiya Kushue De, another prosecution witness. Dr De gave evidence at the trial of the appellant and testified that on examination of the girl, Ibidun Jobi, he found her fourchette torn, her hymen partially ruptured, that there were present on her signs of vaginatis and that laboratory examination of her vaginal secretions showed gonococcus. He testified further that the torn fourchette had been brought about by violence inflicted upon the girl that the rupture of the hymen had taken place simultaneously with the tearing of the fourchette: he also thought that the gonococcus terms in the girl were introduced as a result of sexual intercourse with her. The doctor had also examined the appellant about the same time. He found no marks of violence around his private parts but found that he was suffering from ”venereal disease since his urethral swab showed gonococcus.” The doctor testified that the girl, Ibidun Jobi, must have been carnally known “at most three days” before the examination since the gonorrhea infection in her was of recent origin.

Both at his trial and in his statement to the Police, made after his arrest, the appellant had denied having sexual intercourse with the girl Ibidun Jobi. The learned trial Judge, after a careful review of the evidence, came to the conclusion that he it was that raped the girl on the 1st September, 1968, convicted him as charged and sentenced him as stated before in this judgment.

Before us on appeal the only point canvassed concerned corroboration, a point about which the learned trial Judge was not oblivious. There was at the trial, as there is now before us, the further complication caused by the circumstances of the complainant who, on account of her tender age, was unable to give sworn evidence. Her evidence was given unsworn and that fact put into issue the provisions of section 182 of the Evidence Law, Cap. 40 (Laws of Northern Nigeria, 1963) which section deals generally with the production and admission of the unsworn evidence of children of tender age. Section 182(3) reads as follows:-

“182 (3) A person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution is corroborated by some other material evidence in support thereof implicating the accused.”

Thus, there is an absolute prohibition to a conviction by virtue of the unsworn evidence of a person of tender age unless the evidence be corroborated. Again, the offence of which the appellant was charged falls within the provisions of section 282(1)(e) of the penal code. In dealing with the evidence concerning that subsection, it is necessary to advert to the provisions of section 178(5) of the Evidence Law, Cap. 40 which provides as follows:-

“178. (5) A person shall not be convicted of the offences mentioned in section 275 or paragraph (e) of subsection (1) of section 282 of the penal code upon the uncorroborated testimony of one witness.”

It is manifest therefore that in order to ground a conviction the unsworn evidence of the complainant must be corroborated. In both cases the requirement for corroboration is statutory.

Before us on appeal it was submitted by the learned Senior State Counsel (North Western State) that the evidence of gonorrhoea on the girl, Ibidun Jobi, in the circumstances of this case was corroborative evidence implicating the appellant in some material particular. Learned Senior State Counsel also referred us to the case of R. v. Jones (1939) 27 Cr. App. R.33 where, at p.34, the following statement of the law appears:-

“If the jury were entitled so to regard the fact that the appellant, knowing the child as he did, was found to be suffering from gonorrhoea and that the child who alleged that an attack had been made by him on her body was also suffering from gonorrhoea, then the conviction of the appellant was almost inevitable. The jury, considering the case in the light of that evidence and being properly directed by the Judge as to its importance and implications, found the appellant guilty.”

It is manifest that in the case of Jones, (supra), the Court of Criminal Appeal regarded the incidence of gonorrhoea on the victim as corroborative of the evidence implicating he appellant in the circumstances of that case. We are not ourselves convinced that in every case where gonorrhoea occurs in both the accused and the victim the Court must regard this as corroborative evidence implicating the accused. Great care must be taken to isolate individual cases for individual consideration and it is idle to contend that there cannot be cases in which the collateral circumstances can and do make the incidence of venereal infection of the victims a matter of corroboration. Such is the case where the court or the jury is satisfied that the victim was not previously infected and the age of the infection in her, like cause and effect, are reasonably only referrable to the act of the accused complained of.

In the present case the doctor who examined both the complainant and the appellant gave evidence that the girl, Ibidun Jobi, must have been infected at most three days before the medical examination. Her evidence of being raped was substantially confirmed and corroborated by the evidence of the doctor and this took place on the 1st September, 1968. A medical examination was performed on both the appellant and the victim on the 3rd September, 1968. The doctor testified to the duration of the infection in the girl and the appellant was found on examination to be suffering from the same type of venereal disease. There is the evidence that both the complainant and the appellant had stayed in the same house for about one year and indeed were so staying on the 1st September, 1968. The learned trial Judge thought that in the particular circumstances of this case the presence of veneral infection in the girl and the appellant was corroborative of her evidence that it was the appellant who had raped her. We think that this is a conclusion to which the learned trial Judge is entitled to come and we see no reasons whatsoever to hold that he had acted wrongly.

Appeal dismissed.

SC.330/69