Whether Sexual Intercourse with Consent of Thirteen Year Old Girl is Rape

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In the Supreme Court of NigeriaHolden at Abuja On Friday, the 13th day of March, 2020
Before Their Lordships Olabode Rhodes-Vivour Chima Centus Nweze Amina Adamu Augie Ejembi Eko Paul Adamu Galinje Justices, Supreme Court SC.662/2016

Between

Eyong Idam … … Appellant

And

Federal Republic of Nigeria … … Respondent

(Lead Judgement delivered by Honourable Paul Adamu Galinje, JSC)

Facts

The Appellant, who was a Police Officer, was alleged to have raped a thirteen year old daughter of his colleague, with force. He was therefore, arraigned before the High Court of the Federal Capital Territory, Abuja on a two count charge of rape contrary to Sections 282(1)(a)(b) and (c) and punishable under Section 283 of the Penal Code Law, as well as criminal force contrary to Section 265 of the Penal Code Law. The charge was read and explained to the Appellant, who pleaded not guilty.

In proof of its case, the prosecution called four witnesses and tendered in evidence, the statements of the Prosecutrix, that of her father, and the Appellant’s statement. These were admitted in evidence, though the statement of the Appellant was subsequently expunged along with the evidence of PW 3, who was not available for cross-examination.
At the end of the trial, the Appellant was found guilty as charged; he was sentenced to ten years imprisonment on the count of rape, and one-year imprisonment on the count of criminal force. The Appellant, who was aggrieved by the decision, appealed to the Court of Appeal. In its considered judgement, the appellate court dismissed the appeal and affirmed the judgement of the trial court. Still dissatisfied, the Appellant further appealed to the Supreme Court.

Issue for Determination

The sole issue for determination which the Apex Court considered was:
Whether the lower court was right in affirming the decision of the trial court having regard to the evidence adduced at the trial, and if so, whether the sentences passed on the Appellant were not excessive.

Arguments

In his argument, counsel for the Appellant submitted that the Prosecution failed to prove the essential elements of the offence of rape, which is penetration. Counsel called in his aid, the authority of POSE v STATE (2011) 2 NWLR (Pt. 1234) 393 at 416-417, to buttress his submission, that where in a charge of rape penetration of the vagina is not proved, the accused person will be discharged. Regarding the issue of sentence of ten years for the offence of rape and one year for criminal force, counsel argued that sentence was excessive. The Appellant relied on EKPO v THE STATE (1982) NSCC 146 at 155 in support of his submission that the trial Judge erred, when he failed to take into consideration the fact that the Appellant is a young first time offender who had been dismissed from his employment, as a result of this case. He argued further that, the trial court ought to have exercised its discretion in imposing a minimal sentence which should commence running from 12th April, 2006 when his detention in prison custody commenced. He invited the Supreme Court to interfere with the exercise of discretion by the trial court, and allow the appeal.

Refuting the submissions above, counsel for the Respondent posited that the Prosecution established before the trial court, all the ingredients of the offence of rape. With respect to the submission on the sentence, counsel contended that the sentence was imposed by the trial court in exercise of its discretionary powers and an appellate court, the Supreme Court inclusive, can only interfere with such exercise, if it is shown that the trial court acted under a misconception of law or under a misapprehension of facts NWADIO ABU v A.I.R.B.D.A. (2010) 19 NWLR (Pt. 1226) 364 at 381. He urged the court, to dismiss the appeal.

Court’s Judgement and Rationale

Deciding the appeal, the Supreme Court quoted the provisions of Sections 282 and 283 of the Penal Code and deciphering the provisions, held that for the Prosecution to prove the offence of rape, the following ingredients must be established – (i) that the accused person had sexual intercourse with the woman in question; (ii) that the act was done in circumstances following under any one of the five paragraphs in Section 287(1) of the Penal Code; (iii) that the woman was not the wife of the accused person; or if she was his wife that she had not attained puberty; and (iv) that there was penetration of the vagina of the victim no matter how slight by the penis of the accused person.

Going by the evidence on record, the Prosecution established that the Prosecutrix was less than fourteen years of age; PW2, the father of the Prosecutrix, who had record of her birth, gave evidence that she was thirteen years old at the material time. By Section 282(1)(e) of the Penal Code, sexual intercourse with or without consent of a girl who is under fourteen years of age, is rape. The Appellant admitted under cross-examination that he had had sexual intercourse with the Prosecutrix more than six or seven times, before the incident leading to the charge for rape. Going by this admission, the question of penetration of the vagina of the Prosecutrix, was no longer in controversy.

Further, the Prosecutrix gave evidence that she was raped, and this evidence was corroborated by that of the medical doctor who treated her while she was on admission at the Wuse General Hospital. The evidence of the Doctor from the examination conducted on the Prosecutrix, was to the effect that there was a fresh rim of hymen with a tear at the lower aspect of the vagina extending to the skin of the perineum. There was also blood observed in the vagina, and the area of laceration of the skin. Needless to say, that the Prosecution established the offence of rape by the Appellant.

Regarding the issue of whether the Appellant used force, the Prosecutrix gave evidence that she went close to the Appellant who threatened her that, as a Mobile Police Officer (Mopol), he would kill her if she shouted. She was too scared to shout, while the Appellant pulled off her pant, pushed her to the ground and raped her. Pushing the Prosecutrix to the ground was clearly and act of criminal force. Having established that there was rape, any act of trespass to the body of the Prosecutrix in preparation to commit an offence, is clearly an act of criminal force as provided for under Section 263 of the Penal Code. It follows that, the Appellant committed criminal force against the Prosecutrix.

On the issue sentence, their Lordships held that imposition of sentence by the trial court was purely a matter of discretion, which must be exercised judicially and judiciously at all time. Where however, judicial discretion has been exercised bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the court, the general rule is that the appellate court will not interfere. By Section 283 of the Penal Code, the punishment for rape is life imprisonment and a mandatory sentence of fine. The trial court, in this instance, imposed a sentence of ten years imprisonment, and left out the mandatory fine. The Apex Court held that the trial court was quite magnanimous and lenient with the sentence imposed, which was affirmed by the Court of Appeal. There is nothing on record to show that these findings were perverse, for the Supreme Court to interfere therewith. It would amount to turning justice on its head, for the Supreme Court to disturb the concurrent findings of the two lower courts in this instance. More so, the Appellant was a Policeman, who was supposed to protect a young girl, 13 years of age; instead, he abused his office and the trust reposed on him, by raping her.

Appeal Dismissed.

Representation

G.O. Adih, Esq. for the Appellant/Applicant.

Ibrahim Angulu Esq. with Nureni Usman for the Respondent.

Reported by Optimum Publishers Limited, Publishers of Nigerian Monthly Law Reports (NMLR)