Afor Lucky v. The State (2016)

⦿ CASE SUMMARY OF:

Afor Lucky v. The State (2016) – SC

by PaulPipar

⦿ THEME(S)

Rape;
Punishment for rape;
Alibi;

⦿ PARTIES

APPELLANT
Afor Lucky

v.

RESPONDENT
The State

⦿ CITATION

(2016) LPELR-40541(SC);

⦿ COURT

Supreme Court

⦿ LEAD JUDGEMENT DELIVERED BY:

Nwali Sylvester Ngwuta, J.S.C.

⦿ LAWYERS WHO ADVOCATED

• FOR THE APPELLANT
• Ikhide Ehighelua.
• FOR THE RESPONDENT
• Peter Mrahpo.

⦿ FACT

“STATEMENT OF OFFENCE:
Rape punishable under Section 358 of the Criminal Code Cap C 21 Vol 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE:
Afor Lucky (m) on or about the 7th day of April, 2012 at Oleh in Oleh Judicial Division had carnal knowledge of one Iruoghene Ogodo without her consent.”

Appellant was tried and convicted as charged in the High Court of Delta State, in the Oleh Judicial Division sitting at Oleh. After the appellant was convicted by the trial Court, his learned counsel, S. O. Obaro, Esq., in allocutus pleaded, inter alia: “… The accused is truly repentant of the offence and has vowed never to find himself in this situation again…” The learned trial Judge sentenced the appellant, thus: “…this accused person is sentenced to a term of imprisonment of five (5) years with hard labour or with an option of fine of three hundred thousand (N300, 000.00)”

Appellant appealed to the Court of Appeal, Benin Judicial Division sitting at Benin City.
The Court below dismissed the appeal on 17th November, 2014.
Appellant appealed to this Court on six grounds of appeal.

⦿ ISSUE(S)

1. Whether the Court of Appeal was right to have held that Counsel for the appellant conceded that rape was committed?
2. Whether the Court of Appeal did not speculate when it held that the appellant had sexual intercourse with the prosecutrix (PW1)?
3. Whether in the circumstances of this case the Court of Appeal was right in holding that the defence of alibi was not open to the appellant?
4. Whether or not the evidence of PW3 (Medical Doctor) can in the circumstances of the case amount to corroboration?
5. Whether allocutus amounts to admission of guilt?

⦿ HOLDING & RATIO DECIDENDI

[APPEAL: ]

1. ISSUE 1 was resolved against the Appellant.

RATIO:
i. Section 30 of the Criminal Code Law Cap C21 Laws of Delta State provides, inter alia: “S.30 A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.” The above provision shows that the PW1 who was 11 years old as at the time of the act on 7/4/2012 could not have been held criminally responsible for an act or omission. It follows that the PW1 could not have done anything to decriminalise an otherwise criminal act done to, or with her, on 7/4/2012. At the material time she was dolic incapax and contrary to the argument of learned Counsel for the appellant the PW1 could not have given a consent which in law she did not possess. The purported consent on which the appellant’s Counsel relied to disprove rape cannot avail him, there being no evidence of such precocity that could bring the PW1 within the exception in Section 30 of the Criminal Code Law. In the circumstances, I agree with the Court below that learned Counsel for the appellant conceded that rape was committed as the consent on which he relied to argue that the intercourse was consensual had crumbled, I resolve issue one against the appellant.

2. ISSUE 2 was resolved against the Appellant.

RATIO:
i. In spite of the fact that the appellant pleaded not guilty to the charge, saying he did not at any time have carnal knowledge of the prosecutrix, his Counsel, in Paragraphs 3.11, 3.12 and 3.14 of his brief conceded that the appellant had carnal knowledge of the PW1 as charged but sought to justify the said act on alleged consent to the act by the PW1. It was demonstrated in the resolution of issue one that no such consent could have been given by the pW1 at the material time. In relation to issue one, learned Counsel for the appellant conceded the fact of sexual intercourse between the PW1 and the appellant and argued there was no rape because the PW1 consented to the act. At the tender age of 11 years, even if the prosecutrix (PW1) solicited the act of sexual intercourse with the appellant, the appellant would have had unlawful carnal knowledge with the prosecutrix if he had intercourse with her. It would have been unlawful carnal knowledge of a woman or girl without her consent for the PW1, in law, could not give consent.

3. ISSUE 3 was resolved against the Appellant.

RATIO:
i. The offence was committed at 4 pm on 7/4/2012 at the house of the appellant’s mother. Appellant swore that he worked with his boss, DW2, till 7pm on 7/4/2012. DW2 confirmed that the appellant worked with him till 7pm on 7/4/2012. However, appellant failed to state when he left his mother’s house to work with his boss, DW2. Appellant claimed he returned to his mother’s house by 12:45pm to eat his lunch. Yet, DW2 claimed that “we began to work from between 12.00 noon to 1.00pm until 7 pm.” This cannot be correct. Appellant returned to his mother’s house about 12:45 pm, ate his lunch and “eventually” went to work with DW2 till 7pm. He did not state the time he left the house. The time he left the house is the crucial missing link in his chain of evidence in proof of his plea of alibi. The Court below did not speculate when it held that defence of alibi failed. I resolve issues 2 and 3 against the appellant.

4. ISSUE 4 was resolved against the Appellant.

RATIO:

i. In my view, the tearing of the hymen by causes other than forceful penile penetration of the vagina was completely eliminated by the fact that, as found by the PW3, there was also an injury on the vaginal wall, which injury the PW3 sutured. While the tearing of the hymen could have been caused by causes other than penile penetration by force there is no evidence that such other causes could have caused the injury on the vaginal wall which injury needed suturing by the PW3. It is my view; therefore, that the tearing of the hymen and the injury to the virginal wall of the PW1 are not only consistent with forceful penile penetration of the PW1’s vagina but also exclude other causes such as the riding of a bicycle. The evidence of the PW3 sufficiently corroborated the evidence of the PW1 that she was raped within the meaning and intendment of Section 357 of the Criminal Code Law Cap C21 Laws of Delta State of Nigeria 2008. In other words, the evidence of PW3 corroborated the evidence of the PW1 that she was raped.

ii. In the case at hand, while there is ample corroborative evidence that the PW1 was raped there is no direct evidence, in my view, corroborating the evidence of the PW1 that it was the appellant who raped her. However, in his defence appellant set up a defence of alibi which was exhaustively considered and in my view rightly rejected by the two Courts below. I dealt with the appellant’s plea of alibi in the resolution of issue 3 in the appellant’s brief. It is not helpful to have a repeat performance. Suffice it to say that the two Courts below rightly held that the appellant failed to substantiate the plea on the balance of probabilities. See Ntam v. The State (1968) 1 NMLR 31 86; Ozaki v. The State (1988) 2 NSCC 25. In the particular circumstances of this case, the plea of alibi set up by the appellant is a two-edged sword, as it were. It could avail the appellant and ipso facto destroy the prosecutrix’s case against him. On the other hand, it could crumble, and on the facts as I appreciate them corroborate the prosecutrix’s case that about 4pm on the 7th day of April, 2012 the appellant was at the locus criminis and violated her. If the plea had been sustained it would have meant that the appellant was somewhere other than the scene of crime and as he could not have been capable of being in two different places simultaneously, he could not have violated the PW1. On the other hand, the fact that the appellant, by his evidence and the evidence of his witnesses could not prove on the balance of probabilities that he was somewhere else and not at the scene of crime by 4 pm on 7/4/2012, a fact upon which he rested his case that he did not commit the offence, the reverse is the case, that he was at the scene at the material time and committed the offence as claimed by the PW1. The high watermark of the defence of the appellant that about 4pm on 7/4/2012 he was somewhere other than at the scene of crime has become his undoing. In my humble view, the failure of his plea of alibi, on the facts of this case, leads to one inevitable conclusion that the appellant was at the scene of crime and had raped the appellant. The corroborative evidence could come from either side of the divide. In my view, there is corroborative evidence, not only that the PW1 was raped but also that it was the appellant who raped her.

5. ISSUE 5 was resolved against the Appellant.

RATIO:

i. Before the Court below made its reference to learned Counsel’s plea in mitigation of sentence, the Court had already concluded that the prosecution proved its case against the appellant beyond reasonable doubt. It follows that contrary to the learned Counsel’s argument the comment is an aside and was not the basis of the Lower Court’s judgment. Though I am constrained to resolve the issue in favour of the appellant, the effect is a pyhrric victory which in reality confers no benefit to the appellant. The issue is based on erroneous interpretation of the comment of the Lower Court. It was taken out of context.

⦿ REFERENCED

S.30 Criminal Code Law, Laws of Delta State;
S.358 Criminal Code Law, Laws of Delta State;

⦿ SOME PROVISIONS

On the purpose of punishment imposed by the Court, Samuel Johnson said: “Since revenge for its own sake cannot be justified, it will follow that the natural justice of punishment, as of every other act of man to man, must depend solely on its utility, and that its only lawful end is some good more than equivalent to the evil which it necessarily produces.”

Speaking of prison terms for crimes committed, Michael Howard at Conservative Party Conference of October, 1993 said: “Prison works. It ensures that we are protected from murders, muggers and rapists and it makes many, who are tempted to commit crime think twice.”

⦿ RELEVANT CASES

⦿ NOTABLE DICTA

• PROCEDURAL
• SUBSTANTIVE

Alibi means “elsewhere”. The essence of the plea is that the accused person, at the time the offence was committed, was somewhere other than the locus in quo and could therefore not have committed same. – Ngwuta, JSC. Afor v. State (2016)

Alibi ought to be raised by the accused himself. – Ngwuta, JSC. Afor v. State (2016)

To sustain the plea of alibi as a defence in criminal proceedings, it must be unequivocal and made during investigation. The time and place and the people with the accused at the material time must be stated to enable the police verify same. – Ngwuta, JSC. Afor v. State (2016)

Though proof of alibi is on the balance of probabilities the accused relying on same must give particulars of the place he was and the time he was there and the name of another person who can testify that he was there at the material time. – Ngwuta, JSC. Afor v. State (2016)

The legal principle in respect of the offence of rape is that corroboration is evidence or pieces of evidence tending to show that the story of the prosecutrix that the accused raped her is true. – Ngwuta, JSC. Afor v. State (2016)

Corroboration need not be direct evidence that the accused committed the offence charged. It need not amount to a confirmation of the whole account given by the prosecutix. However, it must be completely credible evidence which corroborates the prosecutrix’s evidence in some aspect material to the charge. – Ngwuta, JSC. Afor v. State (2016)

In a majority of cases where the rapist was not caught in the act and was not subjected to medical examination there is usually no direct evidence that the appellant raped the prosecutrix as alleged. Corroboration of the evidence of the prosecutrix that the appellant raped her can be gleaned from the pieces of evidence before the trial Court, or inference drawn from same. – Ngwuta, JSC. Afor v. State (2016)

When any of the documents is lifted from the file and tendered and received in evidence it becomes an exhibit in the case. An exhibit is defined, inter alia, as a document, record or other tangible object formally introduced as evidence in Court. – Ngwuta, JSC. Afor v. State (2016)

The makers of the medical report and the Police investigation report testified in Court in line with their prepared documents. It was not necessary to tender the documents in evidence unless the counsel for the appellant needed them to impeach the credit of their authors. – Ngwuta, JSC. Afor v. State (2016)

Allocutus is a plea in mitigation of the punishment richly deserved by appellant for the offence with which he was charged and for which he was tried and found guilty and convicted accordingly. – Ngwuta, JSC. Afor v. State (2016)

I was tempted to revisit the sentence in this case but that would have violated the principle that appellate Court cannot disturb a sentence imposed unless there is an appeal against the sentence. A violation of that principle would be as much as wrong as the punishment imposed on the appellant and there is a truism that two wrongs do not make one right. – Ngwuta, JSC. Afor v. State (2016)

The law is that corroboration need not be direct evidence that the accused committed the offence charged. However, it must be completely credible evidence which corroborates the prosecutrix’s evidence in some aspect material to the charge. – Galadima, JSC. Afor v. State (2016)

Finally, I must observe that in sexual offences it is not safe to convict on the uncorroborated evidence of the prosecutrix, but the Court can go ahead and convict if satisfied that the prosecutrix evidence is true. – RHODES-VIVOUR, J.S.C. Afor v. State (2016)

Corroboration is not restricted only to evidence of a witness pointing to the appellant as the person who committed the offence. This is not the position of the law. Sex is usually not performed in the presence of a third party. In most cases it is a hidden act performed behind closed doors, away from prying eyes. It is rare to get a witness to give evidence on oath that he saw the appellant have sex with the prosecutrix. – RHODES-VIVOUR, J.S.C. Afor v. State (2016)