Sunday Jegede v. The State

I read in advance the judgment of my learned brother, Belgore, JSC just delivered. I agree with him that this appeal deserves to succeed. I too allow it, set aside the judgment of the court below. I enter a verdict acquitting the appellant of the offence of attempted rape of which he was convicted by the court below. I set aside the term of five years imprisonment passed on him. He is discharged and acquitted. I have a few comments to make in addition to the reasoning of my learned brother.
The appellant was charged in the High Court of the now defunct Bendel State of Nigeria with the offence of rape contrary to section 358 of the Criminal Code of Bendel State in that he, on or about the 24th October, 1989 had carnal knowledge, of Oghogho Ogunbor without her consent. He pleaded ‘not guilty’ to the charge.

P.5

At the ensuing trial the prosecution called six witnesses and closed its case. The appellant gave evidence in his defence and called three witnesses. After addresses by learned counsel for the parties, the learned trial Judge in a reserved judgment found the appellant guilty as charged and sentenced him to five years imprisonment.
The appellant appealed to the Court of Appeal. That court, in the lead judgment of Akaahs, JCA with which Akintan and Rowland, JJCA agreed, allowed the appeal on the conviction for the offence of rape but substituted it with attempted rape with five years imprisonment. In coming to this conclusion Akaahs, JCA had reasoned:
“Learned counsel for the appellant has submitted following Okoyomon v. State (supra) that the prosecution had not established that the accused did have carnal knowledge of the prosecutrix in the sense that there had been penetration as required by section 299 of the Criminal Code. I agree with this submission. The finding made by PW1 did not link the appellant directly with the condition of PW2’s private part. If the appellant had been examined, this would have confirmed if he had a similar disease as found with PW2. I agree with appellant’s counsel’s submission that for the Medical Officer’s evidence to qualify as corroboration of the fact that the appellant penetrated the vagina of the prosecutrix, it must point directly and irreversibly to the appellant. The nature of a corroborative evidence capable of grounding conviction on a charge of rape is that it must be cogent, compelling, and unequivocal as to show without more that the accused committed the offence charged. See: Igbine v. State (1997) 9 NWLR (Pt.519) 101. As in Igbine’s case (supra) the evidence of PW1 shows that there was an act of rape but there is nothing in this evidence to link the appellant with the offence: Okpanefe v. State (1969) 1 All NLR 420; Olaleye v. State (1970) 1 All NLR 300.”

P.6

One would think that on this reasoning the logical conclusion would be an acquittal. But the learned Justice of the Court of Appeal went on to say:
“This is not the end of the matter. PW1 went further to state that there was forceful penetration of the genital tract of PW2 associated with attempted strangulation. This finding by PW1 has negatived the element of consent by PW2. In her evidence in chief PW2 stated that the appellant held her neck and threatened to shoot her on the face if she refused to remove her pants. Also testifying in-chief, 3rd PW Fidelis Erameh stated that at the Police Station the appellant gave him his name and he said he was sorry for what he had done and asked for his forgiveness since he (appellant) was a friend to 3rd PW’s elder brother, Dr. Erameh. He then reminded him that he was accused of raping a school girl but he denied raping her but tried to force her. This piece of evidence coupled with the evidence of Irene Osagie who testified as DW3 at page 27 of the records that-
‘The girl came and held me and said one man wanted to rape her are all pieces of evidence which point toward attempted rape. In Okoyomon v. State (supra) the Supreme Court in a similar situation as this one substituted the offence of attempted rape for the offence of rape which the trial court found proved.”
The appellant has further appealed to this court upon 3 grounds of appeal. And in the appellant’s brief filed pursuant to the rules of this court, the following 4 issues are formulated for the determination of the appeal:
“1. Whether given all circumstances of the case, the prosecution proved the offence of rape or attempted rape, more so when the evidence of the prosecutrix (PW2) relied heavily upon by both trial court and Court of Appeal was inadmissible as having been received contrary to sections 155(1) and 183(1) of the Evidence Act.

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2. Whether the court can properly convict the appellant on the evidence of PW3?
   3.  Whether having regard to the finding of the lower court that the evidence of PW1 did not link the appellant with the offence of rape, whether it was still open to the Court of Appeal to use the same evidence to convict the appellant for attempted rape.
   4.  Whether the Court of Appeal was right in law and fact to hold that there was no need to corroborate the evidence of PW2 the victim of the alleged attempted rape?”
   The respondent’s three issues are subsumed in the above issues placed before us. Issues 1-3 above taken together are, in my respectful judgment, sufficient to dispose of this appeal. Issue 3 as framed appears to be rather inelegantly drafted and does not cover all the appellant’s complaint in ground(1) of the grounds of appeal upon which the issue is predicated. I will, therefore, reframe it thus: Whether the facts upon which the Court of Appeal convicted the appellant are sufficient to establish the offence of attempted rape.
   ISSUES 1-3:
   The facts of this case are fully stated in the judgment of my learned brother, Belgore, JSC. I don’t think it is necessary for me to go over them again in detail. It is sufficient for the purpose of this judgment to state that the case for the prosecution was that on the 24th May, 1989, the appellant went to the University of Benin Staff School where he met the prosecutrix (PW2), a girl of about 11 years old at the time. He requested the girl to help him count the number of the bad toilets in the school.

P.8

The girl did not know the appellant before that day but thinking he was a teacher in the school she obliged. When they were around the toilet area at a place where there were some bad chairs, the appellant grabbed the girl on the neck and asked her to remove her pant or else he would shoot her: ‘The appellant removed the girl’s pant by himself and had sexual intercourse with her. The girl’s father, a medical practitioner (and head of the General Hospital Benin at the time) called later to pick his daughter from school. The girl narrated to him what happened. Strangely, however, the doctor/father took his daughter home and did not produce her for police investigation and medical examination until the third day when Dr. Abu of the General Hospital Benin (PW1) examined the prosecutrix and found:
“On general appearance she was depressed looking. She told me somebody forcefully had sex with her. On examination the vagina was very tender with some whitish brown discharge. The cervix and fomice were purplish blue on the mucosa. due to traumatic inflammation. I tried a swab for the vagina for examination. This showed a group of bacteria called staphylococcus areas and a few yeast cells. In my opinion I consented (sic) that this girl has forceful penetration of the genital tract associated with attempted strangulation. The injuries for (sic) my own observation and experience were between 48 hours and 60 hours old.”
According to PW1, both Dr. Ogunbor and Mrs. Ogunbor worked at the General Hospital Benin as Consultant and staff nurse respectively.
The appellant denied committing the offence. According to him, the prosecutrix and her elder brother were his pupils in the private classes he used to organize. When the two pupils left his classes their father was owing him part of their fees. Their father took offence when he asked him for the money and promised to punish him. The charge was trumped up. He admitted seeing the girl on the day of the incident and that the girl led him to look for her brother.

P.9

On the said day the appellant had gone to the University of Benin Staff School to drop a passenger he carried on his motor bike. He saw the prosecutrix and asked her about the money she and her brother were owing him. He asked her to lead him to her brother who was in primary 6 in the school. The girl led him round the school but could not find her brother. The appellant accused the girl of deceiving him knowing that her brother was not in school. There was an altercation between the two. The girl shouted “thief’, “thief’ and ran away. People on hearing the girl’s shout ran to the scene carrying cudgels, etc. and were about to lynch the appellant in the belief that he was a thief. On explaining to the mob what happened, they left him. Some came back and accused him of trying to rape a girl and he was taken to the police station.
The appellant called DW1 and DW2 who confirmed that they as well as the prosecutrix and her brother were pupils in appellant’s private classes and that the latter were owing him some fees. Another witness, DW3 testified that when the incident happened the prosecutrix ran to her and held her that somebody wanted to rape her. The evidence of DW1, DW2, and DW3 remained unchallenged.
It was on these facts that the learned trial Judge convicted the appellant of rape. The court below found that the verdict was erroneous and acquitted the appellant of rape but convicted him of attempted rape. There has been no appeal against the acquittal for rape. On the contrary, it is the appellant who has appealed against his conviction, by the court below, of attempted rape. As there has been no appeal against the acquittal for rape that finding must be taken, rightly or wrongly, as correct for the purpose of this appeal.

P.10

In convicting for attempted rape, the court below relied on OKOYOMON V. THE STATE (1973) 1 All NLR (Pt.1) p.16. While I agree that this case supports the finding of the court below that the appellant in the case on hand was not guilty of the offence of rape. I do not, however, with profound respect to their Lordships, that that case supports their finding that the appellant was guilty of attempted rape. In OKOYOMON V. THE STATE, this court found there was corroboration by an eye witness of the evidence of the prosecutrix that the accused was on top of her and that she shook her legs in resistance. There was no such evidence in the present case. Moreover, the trial Judge in that case was found to be in some doubt as to whether the ingredients of the offence of rape which was the subject-matter of the charge had been unequivocally established when the learned trial Judge found:
“I believe that when accused and Rose reached a certain  spot in the bush, the accused felled her down, pulled off her pant, pulled down his own pair of shorts and then started to have (or attempted to have) carnal knowledge of Rose Ibori.”
This court, per Elias, CJN observed:
“It is essential that the offence of which the accused is being convicted should be indicated with sufficient particularity by the trial Judge. In this case, the Judge should have made it clear whether he found proved against the accused ‘carnal knowledge’ or only ‘attempted carnal knowledge’.
For the foregoing reasons we think that the proper charge of which the appellant can be convicted is one of attempted rape and not rape, as the ingredient of the latter offence has not been satisfactorily established.”
Thus, on the evidence given in OKOYOMON, it was not difficult to find that the offence of attempted rape was proved. There was the evidence of PW1 (an eye witness) in that case to the effect that – When I saw the accused on top of Rose as he was apparently having carnal knowledge of her, I saw Rose shaking her legs in resistance.”

P.11

In regard to this piece of evidence Elias, CJN observed:
” the evidence of PW1 has only a limited probative value in corroborating the prosecutrix’s story that the accused was on top of her but not as corroborating the actual act of penetration.”
There was no such evidence in the case on hand corroborative of the story of the prosecutrix (PW2) as to what happened at the scene.
I have earlier quoted a passage from the judgment of Akaahs, JCA detailing his reasoning for convicting for attempted rape. He considered the following facts:-
(1) That the medical officer, PW1 who examined the prosecutrix, Oghogho stated that there was forceful penetration of the genital tract of PW2 associated with attempted strangulation;
(2) That this finding by PWI had negatived the element of consent by PW2;
(3) That PW2 in her evidence stated that the appellant held her neck and threatened to shoot her on the face if she refused to remove her pants;
(4) That PW3, Fidelis Erameh stated at the police station that the appellant gave him his name and he said he was sorry for what he had done and asked for forgiveness. PW3 reminded the appellant that the (appellant) was accused of raping a school girl; the appellant denied raping her but admitted trying to force her.
(5) That DW1, Irene Osagie testified to the effect that ‘The girl came and held me and said one man wanted to rape her.”
At this stage I need to set out the provisions of the Criminal Code of Bendel State relevant to this case.

P.12

They are:
“357. Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of an offence which is called rape.
358. Any person who commits the offence of rape is liable to imprisonment for life, with or without caning.
359. Any person who attempts to commit the offence of rape is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning.
4. When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.”
The same considerations apply to the charge of attempt as to the charge of the particular offence – see R. v. Akinpelu Ajani & Ors. (1936) 3 WACA 3. In Ozigbo v. Commissioner of Police (1976) 1 All NLR 133 at 141, this court, per Alexander, CJN, declared- 
“To constitute an attempt the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence.”
See also Orija v. Inspector-General of Police (1957) NRNLR 189, where, as in Ozigbo, R. v. Eagleton, (1854-1855) Dears, 515, 538, 169 ER 826, 835 was followed. In Eagleton, Parke, B declared as long ago as 1855 the law on attempt to be this:
“The mere intention to commit a misdemeanor is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanor are indictable.

P.13

Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; ….”
This dictum has been regarded as the correct law on the subject and has been followed ever since by the courts both in England and in this country.
In Hope v. Brown (1954) 1 WLR 250, Lord Goddard, L.C.J. acknowledged R. v. Eagleton as the locus classicus of what amounts to an attempt. Smith, I. delivering the judgment of the High Court of Northern Nigeria in Orija v. Inspector-General of Police (supra) observed at pages 192-193:
“But it is not necessarily the last act in every case which proves the attempt. All that is required is an act immediately connected with the particular offence which clearly shows that the offender was attempting to commit it. That is what section 4 of the Criminal Code requires, i.e., an overt act which clearly manifests the intention but which does not amount to its fulfillment. It may be the last of a series of overt acts because up to that point it is not clear whether the offender is attempting to commit the particular offence charged or some other offence. It may be the first act because that act was unequivocally an attempt to commit the particular offence and no other. The test in EAGLETON is applicable to section 4 of the Criminal Code because it is necessary to ascertain the acts immediately connected with the crime in order to decide which overt act or acts clearly manifest the intention to commit that crime. But a more practical test is that suggested by the learned author of Russell on Crime (10th Ed. p.170): ‘the prosecution must prove that the steps taken by the accused must have reached the point when they indicate beyond reasonable doubt what was the end to which they were directed.”
I agree entirely with the above dictum of Smith J.
Learned counsel for the appellant has in his brief meticulously examined the facts relied on by the court below in convicting the appellant of attempted rape and submitted that the evidence available did not prove the offence beyond reasonable doubt.

P.14

Learned counsel for the respondent, on the other hand, argued that the prosecution established the charge of rape or attempted rape and urged the court to dismiss the appeal.
I will now consider the facts upon which the court below convicted the appellant of attempted rape. As regards (1) and (2), there could be no question that whatever happened to Oghogho on the fateful day, that is if anything at all happened to her, could not have been with her consent. As was rightly found by the court below when dealing with the offence of rape, these two facts do not link the appellant to the offence of rape. Nor could they have linked him with the offence of attempted rape either.
As to (3), there was no evidence that the appellant had a gun on him at the time with which he could have carried out the alleged threat. PW6, the police investigator testified:
“I did not see any torn shirt on the accused I did not see any finger nail scratches on his face. I did not see any weapon on him that day.”
This witness’s evidence must throw some doubt on the credibility of the evidence of the prosecutrix, PW2 who in her testimony on oath had said:
“He removed my pant by himself and started sexing me. I then tore his shirt and ran away.”
In any event, the removal of the pant of the prosecutrix without more will not suffice to prove attempted rape. In R. v. Offiong 3 WACA 83 there was evidence that the accused entered the room of complaint uninvited, took off his clothes and expressed a desire to have sexual connection with her and actually caught hold of her. The West African Court of Appeal, per Kingdom, C.J. (Nigeria) held, allowing the appeal of the accused:
“These acts clearly fall short of an attempt to commit rape. They are merely acts which indicate that accused wanted to have and had made preparation to have connection with complainant.”

P.15

I now turn to the 4th factor taken into consideration by the court below. It would appear that PW3 was called to show that appellant made a confession to him. The witness testified thus:
“At the police station that accused Sunday Jegede, gave me his name and said he was sorry for what he had done and I should forgive him because he was a friend to my late brother Dr. Erameh. I told him he was accused of raping my school girl. He said he didn’t do anything to the girl but he tried for (sic) force her.”
Cross-examined he deposed-
“The accused told me he was sorry for what he did before I made a statement to the police. It was in the compound. I did not write all that in my statement to the police.”
What credibility could be ascribed to the evidence of this witness? one may ask. He made a statement to the police on 24th May, 1989 when the matter was still fresh but did not say in that statement that the appellant made some admissions to him on that day. He only remembered about the admissions two and a half years later when he was giving evidence in court! Surely if the evidence in this case had been looked at dispassionately, neither the evidence of PW2 nor that of PW3 would have been considered credible. Be that as it may, what did the appellant confess to? That he tried to force the prosecutrix? Force her to do what? There was no answer to this question. And is that sufficient evidence of attempted rape? I rather think not. The evidence of PW3 is lacking in clarity and unambiguity; it is not unequivocal.

P.16

The last factor the court below put into consideration in convicting the appellant of attempted rape is the evidence of DW 1 to the effect that the prosecutrix came to her, held her and told her that one man wanted to rape her. This pieces of evidence, without more, cannot be evidence to sustain a charge of attempted rape. It would appear that the court below lost sight of the reason for calling this witness. It was to discredit the evidence of the prosecutrix in that at the first opportunity she had, she did not say that she was raped but rather that one man wanted to rape her. In any event, the evidence of DW1 could not be sufficient evidence to sustain a conviction for attempted rape.
In my respectful view, neither any nor all of the factors taken together would suffice to establish a case of attempted rape. They simply did not meet the required standard in law to constitute an attempt to commit rape. The appellant was wrongly convicted and his conviction will not be allowed to stand; it will be set aside. Consequently, I answer Issues 1-2 and Issue 3 as reframed by me in the negative. And with this conclusion I do not see the necessity to consider the fourth issue placed before us. It is for the reasons given herein and the other reasons contained in the judgment of my learned brother, Belgore, JSC that I too allow this appeal and set aside the judgment of the court below in so far as it relates to the conviction of the appellant for attempted rape. His acquittal by that court on the charge of rape is affirmed. I order that he be discharged and acquitted.

 I agree that this appeal has merit. I have had the preview of the judgment of my learned brother, Belgore, JSC in draft, and I have nothing more to add. I allow the appeal and set aside the judgment of the Court of Appeal. The appellant is discharged and acquitted.

P.17

I have had the privilege of reading in advance the leading judgment of my learned brother, Belgore, JSC just delivered. I too allow it, set aside the judgment of the court below. His acquittal by that court on the charge of rape is affirmed. I order that he be discharged and acquitted.

I was privileged to have read in its draft form the judgment just delivered by my learned brother Belgore, JSC. I am in full agreement with him that this appeal deserves to succeed. I therefore also allow the appeal for the reasons given in the said judgment.
However, it is necessary to observe further that the lower court did not apparently consider carefully when a person charged with a full offence may be convicted for an attempt to commit the same offence.
In this case the appellant was charged for the offence of rape, contrary to section 358 of the Criminal Code, Cap. 48, Vol. II, Laws of former Bendel State of Nigeria. He was tried and convicted of that offence by the learned trial Judge. Following his conviction the learned trial Judge Aiwerioghene J., sentenced him to serve a term of five years imprisonment on the 16th June, 1995.
Being very dissatisfied with that judgment, the appellant appealed to the Court of Appeal. His appeal to that court was partially successful. This is because the court below upheld his appeal for his conviction for the offence of rape, but found him guilty of the offence of attempted rape.
To reach this conclusion, it is pertinent to refer to the reasoning of the Court of Appeal, per Akaahs, JCA:-
“This is not the end of the matter. PW1 went further to state that there was forceful penetration of the genital tract of PW2 associated with attempted strangulation. This finding by PW1 has negatived the element of consent by PW2.

P.18

In her evidence in chief PW2 stated that the appellant held her neck and threatened to shoot her on the face if she refused to remove her pants. Also testifying in-chief, 3rd PW. Fidelis Erameh stated that at the Police Station the appellant gave him his name and he said he was sorry for what he had done and asked for his forgiveness since the appellant was a friend to 3rd PW2’s elder brother, Dr. Erameh. He then reminded him that he was accused of raping a school girl but he denied raping her but tried to force her. This piece of evidence coupled with the evidence of Irene Osagie who testified as DW3 at page 27 of the records that:-
“The girl came and held him and said one man wanted to rape her.”
are all pieces of evidence which point towards attempted rape. In Okoyomon v. State (1973) 1 All NLR 16 which the Supreme Court in a similar situation substituted the offence of attempted rape for the offence of rape which the trial court found proved.
It is rather unfortunate that the appellant who was arrested soon after the incident and taken to the Police Station was not subjected to medical examination. This may not be unconnected with the unexplained absence of the Prosecutrix for two days despite the fact that she narrated her ordeal to her father on the same day that the incident occurred.
The second issue raised by the appellant does not merit further consideration. I find that there are no material contradictions in the evidence of the prosecution witnesses concerning the offence of attempted rape.
The question then from the above narration from the judgment of the lower court is whether the court below gave adequate consideration to the evidence before it before the conclusion was reached that the appellant could properly be found guilty of the offence of attempted rape.

P.19

The definition of what elements of the fact of a case that might be relied upon to constitute an attempt to commit the main offence for which an accused was charged has not been without judicial authority in this court and other common law jurisdictions. For present purposes I will refer to the decision of the House of Lords in England in DPP v. Stonehouse (1978) AC 55 where Lord Diplock at page 68, said:-
“The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that merely preparatory to the commission of the
offence such as in the instant case, the taking out of the insurance policies are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so. And it was put in the locus classicus Reg. v. Eagleton (1855) Dears C.c. 505, 538:
“The mere intention to commit a misdemeanor is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanor are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are ”
In other words the offender must have crossed the Rubicon and burnt his boats.”
In this court, Fatai-Williams, JSC (as he then was) in Adeosun v. State (1975) 9-11 SC 1, delivering the judgment of the court at pages 15-16, observed thus:-
“Returning to the question whether an accused person can be convicted of an attempt to commit an offence which the prosecution has failed to prove to be an offence, the answer is that no such conviction can be sustained. Any other conclusion to my mind, would not only be impractical, it would also constitute an affront to common sense.”

P.20

And in Ozigbo v. C.O.P. (1976) 2 SC 67, (1976) NSCC 124, Alexander CJN delivering the judgment of the court at page 128, said:
“To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence. See R. v. Eagleton, (1855) Dears, 515; R. v. Robinson 11 Cr. App. R. 305.”
In the instant case, it was conclusively found that the prosecution failed absolutely to prove the charge of rape against the appellant. The resort to the conviction of the inchoate offence of an attempt to commit the same offence was indeed unfortunate. It is unfortunate in the sense that if due consideration had been given to the evidence, it is my view that nothing was proved against the appellant that he took any steps to rape the prosecutrix.
As was said in the case of DPP v. Stonehouse (supra), there must be such evidence as would show that the offender must have crossed the Rubicon and burnt his boats. This statement, if I may explain further, only means that the action proved against the offender must be such as would show that the offender had done all he needed to do to complete the act before he was stopped. As this appeal is clearly meritorious, I would also allow for the reasons given above and the fuller reasons given in the lead judgment of my learned brother Belgore, JSC. I also enter a verdict of discharge and acquittal.
Appeal allowed.

P.21