Edet Okon Iko v. The State

 I have read in advance the judgment of my learned brother Kalgo, JSC just delivered and for the reasons given by him which I hereby adopt, I, too, allow the appeal.
Though corroboration is not required in law it is considered unsafe to convict of rape on the uncorroborated testimony of the prosecutrix. See Inspector General of Police v. Sunmonu (1957) WRNLR 23 and R. v. John Alexander Graham (1910) 4 CR. APP. R. 218. The learned trial Judge recognised the legal principles laid down by this court on corroborative evidence in sexual offences and when he proceeded to ask himself whether there is anything outside the evidence of PW1 which corroborated her evidence, I understand it to mean that it was not safe to convict on the evidence of PW1 alone. He listed two circumstances which he held to be independent testimony connecting the appellant with the crime:
(i) The admission by the appellant that he took PW1 to his house and;
(ii) the fact that PW1 ran away from his house when the appellant went to park his vehicle.
These cannot be the independent testimony which affect the appellant by connecting or implicating him with the crime. See R. v. Baskerville (1916/17) All ER (Reprint) 38. The court below was therefore in error in affirming the conclusion of the learned trial Judge that the circumstances set out above corroborated the evidence of PW1. There was indeed no corroborative evidence direct or circumstantial implicating the appellant with the offence charged.
For the above reasons and the fuller reasons contained in the judgment of my learned brother Kalgo, JSC, I allow this appeal and set aside the judgment of the court below.

The appellant is acquitted and discharged.

P.15

 I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Kalgo, JSC and I am in agreement that there is merit in this appeal and that the same ought to be allowed.
It is not necessary for me to recount all over again the unpleasant facts of this case as the same have been fully taken care of in the leading judgment. It is enough to say that the appellant was at the High Court of Justice of the former Cross River State of Nigeria, holden at Uyo charged with the offence of rape contrary to section 358 of the Criminal Code. The particulars of the offence were that the appellant on the 2nd day of May, 1982 at Akpan Essien Street, Uyo in the Uyo Judicial Division had carnal knowledge of the prosecutrix, Grace Asuquo Etim, without her consent. He was at the conclusion of his trial on the 30th day of May, 1986 found guilty as charged by the trial court and sentenced to 7 years imprisonment with hard labour. His appeal to the Court of Appeal, Calabar Division, was on the 11th day of May, 2000 dismissed. He has now appealed to this court.
The main issue upon which this appeal turned is whether the evidence of PW1, the prosecutrix, was sufficiently corroborated to warrant the conviction of the appellant.
In this regard the learned trial Judge was satisfied that the essential particulars of the evidence of the prosecutrix were corroborated. Said he:-
“The evidence of the PW1 does not require hundred per cent corroboration, and that of course is not possible. All that is needed is that the most essential particulars of the evidence be corroborated. That has been done in this case and I am satisfied with it.”

P.16

I will return to this finding of the trial court in this judgment. I need only state at this stage that the leaned trial Judge, having found the evidence of the prosecutrix fully corroborated had no difficulty in accepting the same as true. he said:-
“Accused reached the Uyo Motor Park, but refused to drop the PW1 there when the PW1 asked him to drop her there. He took her to his house at No.2 Effiong Ukpong street. Accused said he took the PW1 to his house because the PW1 would not like to go back home on a motor-cycle. I do not believe this. I believe that he just took her home against her wish.
There at home, the PW1 removed her luggages, but the accused collected them from her and put them back into the vehicle. He deceived her, he was taking her back to where she lived.
Instead, he took her to an isolated Akpan Essien street in that rainy evening. There he stopped, wound up the glass in the door of the vehicle.
He started to struggle with the PW1. The P.W.1 resisted, but the resistance was short-lived for it was not long before accused over-powered her and removed her pants, inserted his penis into her vagina and had carnal knowledge of her.
He drove her back to his house and was prepared to make her spend the night there even after the first round of sexual intercourse. He left her in, his house and went to park his vehicle. During that time, the PW1 ran away into the house of the PW IV at No.5 Effiong Ukpong Street, and there she slept till the following morning.
The following morning, she went to her father at Calabar and reported all that happened to her, to him.
I wish to say here that I believe all that this witness has said I do not believe the accused person. When this sequence of events is carefully considered, it is difficult to agree with the defence counsel that the victim in this case had given her consent to the sexual intercourse between her and the accused.

P.17

Here was a girl who, as alleged in the charge before it was amended, was under the age of 16 years, exposed to this type of hazard, in a cold rainy night and on a dark road where houses were not nearby. What was the poor little girl to do, either than to yield to the mounting pressure from the accused? This does not show that she did it with consent. If she did it with consent, she would have stayed on in the house with the accused that night She would not have run out to No.5 Effiong Ukpong Street. She would not even have rushed to her father the following day to report the incident. She would have kept it to herself. I am unable, in the circumstances to agree that the little girl consented to the ordeal she passed through with the accused person, that evening.”
I think it is necessary to observe that the learned trial Judge in accepting the above evidence of PW1 did warn himself of the danger of convicting the appellant on the uncorrobotated evidence of the prosecutrix. He was, however, able to identify two pieces of evidence which, with respect, he conceived amounted to corroboration of the most essential particulars of the evidence of PW1.
Enumerating the two pieces of evidence which he found were corroborative of the evidence of PW1, the learned trial Judge stated:” The question to examine now is whether there is anything outside the evidence of the PW1 to corroborate her evidence…………….
First, the accused himself admitted he took the PW1 to his house and asked her to wait there while he went to park his vehicle.
Secondly, the PW1 said she ran away from the house of the accused person into the house of the PWIV at No.5 Effiong Ukpong Street. This has been confirmed by the accused when he said that by the time he returned from where he went to park the car, the PW 1 had left his house to a place he did not know. She ran and left her luggages in the house of the accused. It was the following day that she went with her father and took the bags away.

P.18

The evidence of the PW1 does not require hundred percent corroboration, and that of course is not possible. All that is needed is that the most essential particulars of the evidence be corroborated. That has been done in this case and I am satisfied with it.”
I will, later in this judgment, consider to what extent these two pieces of evidence corroborated the essential particulars of the evidence of PW1 in this case and whether the court below was right when it held that evidence of PW1, as found by the trial court, was “amply corroborated. ”
In legal parlance, 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, is guilty of the offence of rape. See section 357 of the said Criminal Code. Sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. See R. v. Marsden (1891) 2 QB 149. Rutherford v.  Richardson (1923) AC 1. It has, however, been held that any, even the slightest penetration will be sufficient to constitute the act of sexual intercourse. The fact that a prosecutrix who is alleged defile is found to be virgo imacta (i.e. a virgin) is not inconsistent with partial sexual intercourse and the court will be entitled to find that sexual intercourse has occurred if it is satisfied on that point from all the evidence led and the surrounding circumstances of the case. Where a penetration was proved but not of such a depth as to injure the hymen, it was held sufficient to constitute the crime of rape. See C R v. M’rue 8 C & P 641, R.v. Allen 9 C &P 31 etc. Proof of the rapture of the hymen is therefore unnecessary to establish the offence of rape. See R. v. Hughes 2 Mood 190.

P.19

Adverting now to the evidence of the prosecutrix on the question of what happened between the appellant and herself, she testified thus:- “It was after the accused had indicated his willingness to drop me at Akpan Etuk Street that I entered the vehicle. At Akpan Essien Street, the accused stopped and asked me to get down from the vehicle. I then cried and begged him to take me to our house. At that time it was really dark and it was raining. The accused wound up the glass of the vehicle, and locked the vehicle … The accused started to struggle with me and attempted to remove my pants. I refused and resisted. After a prolonged struggle inside the van, the accused over powered me and removed my pants. There in the van, he had carnal knowledge of me. When the accused overpowered me, he inserted his penis into my vagina and had carnal knowledge of me once. After the sexual intercourse the accused took me back to his house at No.2 Effiong Ukpong Street. By that time, it was past nine(9) p.m. There he removed my loads and put them into his house. He asked me to wait for him at his house to enable him go and park his vehicle. He did not tell me where he was going to park his vehicle. He did not park it in his compound. When he left the house to go and park his vehicle, I ran out of his room to No.5 Effiong Ukpong Street where I spent the night.”
Without doubt, the above description of what the prosecutrix was allegedly subjected to by the appellant would constitute the clearest case of rape if appropriately believed and/or corroborated. The  Accordingly, he was obliged to accept the entire evidence of the prosecutrix as true. it is now convenient to consider whether, as found by the learned trial Judge and affirmed by the Court of Appeal, the most essential particulars of the evidence of PW1 were corroborated as required by law or at all.

P.20

I should, perhaps, start by stating that the word “corroboration” has been held not to be a technical term of art and means no more than evidence tending to confirm, support and strengthen other evidence sought to be corroborated. See D.P.P v. Kilborrne (1973) AC 729 at 758. Corroboration of the testimony of a witness must be offered by independent evidence which affects the accused person by connecting or tending to connect him with the offence charged. See R. v. Baskerville (1916) 2 KB 658 at 667 (CCA) R v. Jones (1939) 27 CR. APP. REF. 33 (CCA)., R v. Hartley (1941) 1 KB 5 (CCA). The corroboration need not consist of direct evidence that the accused person committed the offence, nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respects material to the charge in issue. See R.v. Rice (1963) 1QB 857, R v. Goldstein (1916) 11 Cr. App. Rep 27 (CCA). The law is however settled that the required corroboration must not merely establish that a crime has been committed but must go to identify the accused with the crime in some material particular. See R. v. Mumuna and another (1938) 4 WACA 39 at 41, R. v. Baskerville (1917) 12 Cr. App Rep. 81, R. v. Preprah and others 4 WACA 34 at 36, Ekelagu v. Queen (1960) 5 F.S.C. 217, (1960) SCNLR 488. On a charge of rape, for example, the corroborative evidence must confirm in some material particulars that:-
(1) Sexual intercourse has taken place, and
(2) that it took place without the consent of the woman or girl, and also
(3) that the accused person was the man who committed the crime.  See James v. R (1971) 55 CR. App. Rep 299 (PC)
Reverting once again to the two pieces of evidence which the trial court found were corroborative of the testimony of PW1 and affirmed by the court below, these constitute as follows:-

P.21

(i) That the appellant admitted he took PW1 to his house and
(ii) That PW1 ran away from the house of the appellant when the said appellant went to park his vehicle. And I ask myself whether these two pieces of evidence are unequivocally referable to or confirm that the prosecutrix had definitely been when the said appellant went to park his vehicle.  And I ask myself whether these two pieces of evidence are unequivocally referable to or confirm that the prosecutrix had definitely been raped without any shadow of doubt. I think not.
In this respect, I must stress that suspicion, no matter how high, cannot ground criminal responsibility. In my view, the facts that the appellant admitted that he drove PW1 to his house and that PW1 ran away from the house of the appellant when he went to park his vehicle are neutral facts which do not necessarily and conclusively point to any specific criminal conduct on the part of the  appellant. I cannot, therefore, accept that these two pieces of evidence corroborate the essential elements of the offence of rape with which he was charged. In my view the Court of Appeal was in error when it affirmed the finding of the trial court that the evidence of PW1 was amply corroborated by the two pieces of evidence in issue.
I think I ought to state at this stage that it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. The proper direction which is now a well established rule of practice is that it is not safe to convict on the uncorroborated evidence of the prosecutrix; and the court may after paying due attention to the warning nevertheless convict the accused person if it is satisfied with the truth of her evidence. See I.G.P. v. Sunmonu (1957) WRNLR 23; R. v. Graham (1910) 4 CR. APP. Rep. 218; R. v. Pitts (1913) 8 Cr. App. Rep 126; R. v. Berry (1925) 18 Cr. App. Rep. 65 etc.

P.22

On the issue of the warning, it is settled that no particular form of words need be used by the court but the Judge must use simple and plain language that will, without doubt, convey to the jury that there is a danger in convicting on the complainant’s evidence alone. The jury should then be told that bearing that warning well in mind, they must look at the particular facts of the case and if having given full weight to the warning that it is dangerous to convict, they came to the conclusion that in the particular case the complainant is, without any doubt, speaking the truth, then the fact that there is no corroboration, as I have already stated, cannot be any matter of great moment and they are entitled to convict the accused accordingly. Even where there is such a warning but matters are suggested by the trial court as being corroborative of the relevant evidence which are not in fact so, the conviction, in a proper case, may be quashed on appeal. See R  v. Phillips (1925) 18 Cr. App. Rep. 115; R v. Whitehead (1929) 1 K.B.  99(1930) 21 Cr. App. Rep. 23; R. v. Henry Ross (1925) 18 Cr. App.  Rep. 141; R.v. keeling (1943) 28 Cr. App. Rep. 121 etc. It will be necessary later in this judgment to revert to this aspect of the law with regard to corroboration.
In the present case, there can be no doubt that the learned trial Judge duly warned himself of the danger of convicting the appellant on the uncorroborated evidence of the prosecutrix. But he erroneously relied on two pieces of evidence already set out as being corroborative of the evidence of the prosecutrix. I think there lies the flaw on the judgment of the learned trial Judge which, with respect, was erroneosly affirmed by the Court of Appeal.
Perhaps, I should observe that I did carefully examine the entire evidence led on behalf of the prosecution in the case and observed that PW2, the father of the prosecutrix, testified under cross examination that the appellant admitted the offence when he came to his house with his father and the owner of his vehicle to beg for his forgiveness.

P.23

His evidence ran thus:
“Q.Q: What did your daughter tell you when she came back to you?
Ans. She told me that you forced her and had sexual intercourse with her inside your vehicle.
Q.Q: Did PW1 show you any torn dress which she said was torn as a result of this incident?
Ans: She brought a torn pant and showed to me. I don’t know where she kept it.
Q.Q.: Did I and my father and the owner of the vehicle come to your house to see you?
Ans; Yes. You came to beg me.
Q.Q.; Did you tell my father that I forced your daughter and had sex with her on that day?
Ans: Yes, and that was why he brought you to my house to beg.”’
It is crystal clear that the above testimony of PW2, if believed, was sufficient corroboration of the evidence of the prosecutrix. This is because it is not only an admission that sexual intercourse had taken place between the appellant and the prosecutrix, it is also an affirmation that the sexual intercourse took place without the consent of the prosecutrix and that the appellant was the person who committed the crime. Admission of an offence by an accused person to other persons may amount to sufficient corroboration in law. So in  R. v. Francis Kufi (1960) WNLR 1, the accused was charged with indecent assault against a young girl of 10 years. It was held, and rightly in my view, that the admission of the offence by the accused to the father of the girl was sufficient corroboration in law.

P.24

The real problem in the present case, however, is that the learned trial Judge gave no consideration whatsoever to the above piece of material evidence led against the appellant by PW2. All that the learned trial Judge did was to set out the relevant evidence tendered before the court by PW1, the prosecutrix. At the end of this exercise, the learned trial Judge as he was entitled to do, believed the evidence of the prosecutrix. Having fully set out the relevant evidence of PW1, the learned trial Judge observed:-
“I wish to say here that I believe all that this witness has said.’
He did not, however, give any consideration whatever to the said vital piece of evidence of PW2. He neither indicated whether that piece of evidence was reliable and established nor did he as  much as mention it, even in passing, throughout his judgment.
It cannot be over-empahsised that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which saw, heard and assessed the witnesses as they testified in the witness box. See Akinloye and Another v. Eyiyola and others (1968) NMLR 92 at 95; Woluchem v. Gudi (1981) 5 SC 291 at 320etc. It is only where an appellate court is in as good a position as the trial court to evaluate evidence which has been given in a case, such as where the issue is essentially a matter of inference that can be drawn from proved facts, not resting on the credibility of witnesses as a result of their demeanor in the witness box or of the impression of them by the trial court that it must not hesitate to do so. See Okafor v. Idigo 111(1984) 6 C 1 at 36; The Registered Trustees of the Apostolic Faith Mission and Another v. James and Another (1987) 2 NWLR (Pt.61) 556 at 567. 
In the present case, whether or not the testimony of PW2 is true on the issue of his evidence that the appellant came to beg him for the rape on his daughter is entirely a matter that rest on the credibility of the witness which this appellate court is not in a position to resolve.

P.25

I think in the absence of a definite finding on the issue by the trial court, it would be entirely speculative for this court to hold that the piece of evidence in question is reliable and therefore corroborative of the evidence of the prosecutrix on the issue of rape for which the appellant was charged.
The position, as I see it, is that this is a case in which the learned trial Judge after duly warning himself erroneously identified two pieces of evidence as corroborative of the testimony of the prosecutrix. It was on this basis that he proceeded to accept her entire testimony on the issue of rape as true. Those two pieces of evidence are, in fact, no corroboration, no matter how remotely of the evidence of PW1. Without doubt, if the learned trial Judge after warning himself, frankly held that there was no corroboration of the evidence of the prosecutrix and that in the absence of such corroboration, it would be unsafe to convict but that he was nevertheless satisfied with the truth of her evidence and convicted the appellant, it may well have been that the conviction would have been unassailable. But his mind was left with the belief that he found certain matters to be corroboration, whereas they were not. In such circumstance, there may be no other option open to this court than to allow the appeal. See R v. Parker (1925) 18 Cr. App. Rep. 103. This is because although the necessary warning relating to corroboration was clearly given by the learned trial Judge himself by enumerating matters as corroboration which were in fact not so. In such a situation, it cannot be possible for this court to say with any degree of certainty that, with a proper direction, the court must still have come to the same conclusion as it did. See R. v. Philips (supra).

P.26

So, too, in  R.v. Ross (1925) 18 Cr. App. Rep. 141 at 142. Hewart, L.C.J. on facts which are not too dissimilar to those in the present case had this to say, namely:-
“In a case of this kind, corroboration of the story of the prosecutrix, though not essential in law, is required in practice. It is the well-settled practice to warn juries that it is not safe to convict on the uncorroborated testimony of the prosecutrix. To tell the jury that something is corroboration which is not corroboration may have a more unfortunate result than the omission of any warning on the matter Here a matter was treated as corroboration which was not corroboration … The conviction must be quashed.”
It is for the above and the more detailed reasons contained in the judgment of my learned brother, Kalgo, J.S.C. that this appeal succeeds and it is hereby allowed. The conviction and sentence passed on the appellant are hereby set aside and it is ordered that he be acquitted and discharged.

I have had the privilege of reading in draft the judgment of my learned brother Kalgo, JSC in this appeal. I entirely agree with it.
The appellant stood trial in the High Court, Oyo, on a charge of rape contrary to section 358 of the Criminal Code. The particulars of the offence were that at Akpan Street, Oyo, on the 2nd of May, 1982 he had carnal knowledge of one Grace Asuquo Etim without her consent.
At the trial the prosecutrix and three other witnessess testified for the prosecution. The appellant also gave evidence in his defence. He called no other witness.
The prosecutrix part of her Grace Asuquo Etim testified as P.W.1 part of her evidence-in-chief reads as follows:
“On that day, the accused brought passengers to Creek Town, from Uyo, my father saw him and hired him to take me from Creek Town to Uyo. My father paid the accused the sum of N5.00 (Five Naira).

P.27

On other occasions I used to pay a fare of four naira from Creek Town to Uyo. My father had instructed the accused to hand-over the balance of one Naira to me when we reached Uyo. I entered the vehicle to Creek Town and the accused drove the vehicle to Uyo. The vehicle was a pick-up van. When we arrived at the Uyo Motor Park, I asked the accused to drop me there but he refused. I had known the number of the vehicle at the time of this incident but I have now forgotten it. We arrived at Uyo at about 6 p.m. I wanted to go to No.26 Akpan Etuk Street, in Uyo. Accused took me to Ikot Efre Itak where he dropped some other passengers. There at Itak, all the other passengers dropped. I was the only passenger remaining in the van. The accused drove me back to Uyo. We arrived at Uyo at about 8 p.m. The accused suggested to me on our way back to Uyo that I should come with him and spend the night at his house. I told him I would not come with him. The accused drove to No.2 Effiong Dkpong street where he lived and there he said he was going to give me something to eat. I came out of the vain. I removed my loads comprising a bag of garri, a bag containing my clothes and my books. I wanted to take a motor-cycle and go home. The accused came and collected the loads back from me and put in his van. He did not tell me why he did this. He then turned to the direction of our street and said he would take me to our house. It was after the accused had indicate his willingness to drop me at Akpan Etuk street that I entered the vehicle. At Akpan Essien Street, the accused stopped and asked me to get down from the vehicle. I then cried and begged him to take me to our house. At that time it was really dark and it was raining. The accused wound up the glass of the vehicle, and locked the vehicle. The accused and I were at that time inside the vehicle.

P.28

One man on a bicycle came and asked the accused what the problem was but the accused did not say anything to the man. I was still crying inside the vehicle. Since the accused did not say anything the man the man left. I said nothing to the man. The accused started to struggle with me and attempted to remove my pants. I refused and resisted. After a prolonged struggle in the van, the accused over-powered me and removed my pants. There in the van, he had carnal knowledge of me. When the accused over-powered me, he inserted his penis into my vagina and had carnal knowledge of me once. After the sexual intercourse the accused took me back to his house at No.2 Effiong Ukpong Street. By that time, it was past nine (9) p.m. There he removed my loads and put them into his house. He asked me to wait for him at his house to enable him go and park his vehicle, I ran out of his room to No.5 Effiong Ukpong street where I spent the night.”
This witness’ disclosed that the Police took her to St. Luke’s Hospital, Anua, Uyo where she was examined by a Doctor. The Doctor was not called to give evidence nor was the report to his finding tendered in evidence.
It is an established practice in criminal law that though corroboration of the evidence of the complainant in a rape case is not a statutory requirement, it is, in practice, always looked for. In other words, it is now a well established practice, by the courts in Nigeria, that in cases of rape the evidence of the complainant must be corroborated. The nature of the corroboration must necessarily depend  on the peculiar facts of each case. Where rape is denied by the accused the sort of corroboration the courts must look for is medical evidence showing injury to the private part of the complainant, injury to other parts of her body which may have been occasioned in a struggle, seminal stains on her clothes or the clothes of the accused or on the place where the offence is alleged to have been committed.

P.29

Where the prosecution evidence is not sufficiently strong to warrant a conviction, it would be unsafe to convict merely on the accusation of the woman who alleges that she has been raped. The Judge must warn himself against the danger of convicting a man on such uncorroborated testimony. See lbeakanma v. Queen (1963) 2 SCNLR at 195; Reekie v. Queen (1954) 14 WACA 501. In the latter case, the West African Court of Appeal held at p. 502 as follows:
“In cases of a sexual character it is eminently desirable that the evidence of the complainant should be strengthened by other evidence implicating the accused person in some material particular. It is true that there is nothing in law to prevent the court from convicting on the uncoroborated evidence of the complainant, but it is an established rule that the presiding judge must direct himself and the assessor in such a case on the desirability of there being corroboration of the complainant’s evidence”
In Ibeakanma’s case this court held at p. 195 thus:
“In the present case the learned trial Judge attached importance to the scar which he said the complainant’s bite had left on the shoulder of the appellant. The appellant’s explanation was that it was a bite inflicted on him by one of his children five days before the date on which he was alleged to have raped the complainant. The police witness stated in his evidence that he took the appellant to the hospital and that he was examined by the doctor. As the appellant did not deny that the mark on his shoulder was caused by a human bite, it must be assumed that the object of the appellant being taken to the doctor for examination was for the purpose of determining whether the bite was inflicted on the previous day or five days earlier. The doctor’s evidence or report would have enabled the court to determine whether the complainant’s story was the correct one or whether the appellant’s was.

P.30

As this was not done, we think it was wrong and a misdirection on the part of the learned trial Judge to have concluded that it was the complainant’s bite which left the scar on the appellant’s shoulder. It was equally wrong in the circumstances to have treated the bite as a corroboration of the complainant’s evidence.”
In the present case, although PW1 claimed she was examined by a doctor, no medical evidence was called. Again, in answer to a question in cross-examination she said “my pants were torn.” Her said pants was not tendered in evidence. Yet again, she said under cross-examination that she did not know the exact spot where the offence was alleged to have been committed. So that the evidence of PW 1 that she was raped by the appellant was not corroborated in any way whatsoever. The trial Judge rightly warned himself against the danger of convicting the appellant solely on the evidence of the complainant. He therefore found corroboration of the evidence in the fact that “First, the accused himself admitted he took the PW1 to his house and asked to wait there while he went to park his vehicle.
Secondly, the PW1 said she ran away form the house of the accused person into the house of the PW IV at No.5 Effiong Ukpong Street.” With all due respect, the trial Judge was wrong to have treated these facts or circumstances as corroboration of the complainant’s evidence.
I find myself unable, on the facts and circumstances of this case to accept that the guilt of the appellant was proved with the satisfaction required in criminal cases. I am therefore in complete agreement with my learned brother Kalgo, JSC that this appeal has merit and must be allowed. Accordingly I, too, allow this appeal and set aside the conviction and sentence of the appellant. The appellant is acquitted and discharged.

P.31

I have before now been privileged to have read in advance the judgment just delivered by my learned brother Kalgo JSC. The facts of this case have been carefully set out in the said judgment, and for reasons given the appeal was found meritorious. I also agree that the appeal should succeed, but I would add a few words of my own.
The basic facts in this case are not in dispute. The appellant was charged for the offence of rape contrary to section 358 of the Criminal Code, in that on the 2nd day of May, 1982, he unlawfully had carnal knowledge of Grace Asuquo Etim without her consent. At the end of the trial at the High Court, he was found guilty of the offence and sentenced to a term of imprisonment of 7 years with hard labour. He appealed to the court below against that decision of the trial court, but his appeal was dismissed. He has now appealed to this court. Pursuant thereto, his learned counsel filed two grounds of appeal, which I do not consider necessary to set down here. However, on these two grounds of appeal his learned counsel in the brief filed on his behalf raised only one issue for the determination of the appeal. Though the learned counsel for the respondent also filed a respondent’s brief in which issues were also raised for the determination of the appeal, but it is not necessary to refer to them. This is because, the only issue germane to this appeal is that raised in the appellant’s brief. it reads:-
“Whether the learned Justices of the court below were right in holding that from the evidence adduced at the trial court, the testimony of PW1 contained no serious contradictions and was only amply corroborated in all material respects including the question whether or not there was consent.”

P.32

Undoubtedly, for the offence of rape to be established by the prosecution, it is a cardinal requirement that the prosecutrix did not give her consent to the act of the appellant. In other words the unlawful carnal knowledge of the prosecutrix by the appellant must be proved beyond a shadow of doubt that it was without the consent of the prosecutrix. Before considering whether that ingredient of the offence was established, I will dwell briefly upon another aspect of a necessary ingredient of the offence of rape. This aspect of the proof of the offence of rape is that there must be evidence that there was intercourse in the sense that the penis of the appellant entered the vagina of the prosecutrix. It is pertinent in this context to refer to the provisions of section 357 of the Criminal Code. it reads:-
“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.”
As I have said above, sexual intercourse is deemed complete upon proof of penetration of the penis into the vagina. See R. v. Marsden (1891) 2 Q.B. 149; Rutheford v. Richardson (1923) A.C.
1. It has also been held that the slightest penetration will be sufficient to constitute that act of sexual intercourse.
In the instant case it became therefore the duty of the prosecution to establish that there was the act of sexual intercourse as explained above and that it was without the consent of the prosecutrix.
The trial court in coming to its conclusion reviewed the evidence before the court. I do not need to restate those facts as they have been sufficiently reviewed in the lead judgment of my learned brother Kalgo JSC.

P.33

The narration of the events leading to the alleged rape of the prosecutrix clearly showed that the appellant, a motor driver who was charged for a fee to take the prosecutrix to a particular point in Uyo and drop her there chose to drive her to several places before the alleged rape took place.
The learned trial Judge after a consideration of all these events then said at page 47 of the record of proceedings; thus:
“I am unable in the circumstances to agree that the little girl consented to the ordeal she passed through with the accused person, that evening.”
From this observation, the question that has been of some concern to me it whether the learned trial Judge was there considering all that happened to the enforced movement of the girl by the appellant in his vehicle or the offence of rape for which he was charged.
I do not confess to some difficulty in ascertaining the thrust of the observation of the learned trial Judge in all the circumstances. Though it is manifest that references were made to what constitute rape as charged, but I do, and with the greatest respect to the learned trial Judge that had the offence of rape for which the appellant was charged was addressed directly, then the errors that the court fell into with regard to the corroborative evidence which reliance was placed upon to convict the appellant would perhaps have been avoided. In this context, I refer to the two items of corroboration identified by the learned trial Judge. These were:
(i) the fact that the appellant admitted bringing PW1 to his house; and
(ii) that PW1 ran away from the house when the appellant went to park his vehicle.

P.34

Now, it is settled that evidence which would be acceptable as corroborative of the evidence of the prosecutrix must be such evidence as would support the consistency of the evidence of the prosecutrix, or such evidence as would show that the offence was committed, but it must also identify the appellant in some material particular with the commission of the offence. See R. v. Rice (1963) 1 Q.B. 857; R v. Goldstein (1916) 11 CR App. Rep 27 (CCA); R v. Baskerville 12 CR App. Rep. 81; R. v. Preprah & Others 4 WACA 34 at 36; R. v. Mummuna & Another (1938) 4 WACA 39 at 41 and R. v. Ekelagu (1960) 5 FSC 217.
With the greatest respect to the learned trial Judge, having regard to the established principles, discussed in those cases and other dealing with situations of this kind, I fail to see how those items listed above can be said to be corroborative of the story of the prosecutrix that she was raped as alleged by the appellant. The court below, also in my humble view fell into error in upholding the judgment of the trial court.
I think also that it must be borne in mind that in all criminal cases, the prosecution has throughout the burden to prove beyond reasonable doubt the guilt of the person charged. See Miller v. Minister of Pensions (1947) 2 All. E.R. 372, 373; Lori v. State (1980) 8 -11 SC 81; Ameh v. State (1978) 6-7 SC 27. 
In the instant case, there was no evidence that proved beyond reasonable doubt that the appellant raped the prosecutrix as alleged. I therefore must reverse the judgments of the court below and the trial court convicting the appellant of this offence of rape. The judgments of the court below affirming the judgment of the trial court is hereby set aside.
The appellant is hereby discharged and acquitted for the above reasons and fuller reasons given in the judgment of my learned brother Kalgo JSC.
Appeal allowed

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