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IN THE SUPREME COURT OF NIGERIA
(1975) 9-11 S.C. (REPRINT) 72.
BEFORE THEIR LORDSHIPS
T.J.O. Okpopo – for the Appellant
M.E. Agidee, Principal State – Counsel for the Respondent
CRIMINAL LAW – Rape
PRACTICE AND PROCEDURE – Evidence – Hostile witness – Use of previous statements at the trial.
NASIR, J.S.C. (Delivering the Judgment of the Court):
This is an appeal from the judgment of Akhigbe J. sitting at the Ward High Court, convicting the appellant of the offence of rape contrary to Section 299 of the Criminal Code of the Midwestern State of Nigeria. At the hearing of this appeal on the 6th day of November 1975, learned counsel for the Appellant sought leave to substitute and argue six new grounds of appeal in place of the original grounds of appeal. After leave was granted learned counsel argued the first and sixth grounds of appeal together; before arguing the other grounds. After hearing arguments of learned counsel on all the grounds we called upon learned Principal State Counsel to reply to the arguments and in particular address us in reply to the arguments in respect of grounds 1 and 6. Learned Principal State Counsel indicated (and very rightly in our view) that as a matter of law he did not support the conviction as the evidence of the prosecutrix was unsatisfactory and unreliable and could not support the charge under section 299 of the Criminal Code. In the light of this submission, it became unnecessary for us to hear further arguments on the other grounds. We allowed the appeal and said that we would give our reasons later. This we now do.
The facts of this case are as follows: The Appellant was a police constable stationed at Warri and living at No. 44 Obire Street and has a girl friend one Miss Rosaline Alakpa (the 4th Prosecution Witness and hereinafter referred to as Prosecutrix) whose address was No. 23 Obire Street, across the road from the Appellant’s house. On or about the 3rd day of May 1973 the Appellant arranged with the prosecutrix for her to visit him in his house. This the prosecutrix did by going to the Appellant’s house at 11 p.m. in the night. While in the house the Appellant had sexual intercourse with the prosecutrix as a result of which the prosecutrix was injured and she saw blood coming from her private part. The Appellant assisted her to clean this blood. After the incident the prosecutrix reported the matter to the 2nd and 3rd prosecution witnesses and subsequently the matter was reported to the police. The 2nd and 3rd prosecution witnesses both stated in evidence that the prosecutrix complained that the Appellant had sexual intercourse with her by force. As a result of this complaint the matter was reported to the Police Station where the prosecutrix made a written statement in which she clearly stated that the Appellant used force on her and had sexual intercourse with her. Apparently at the preliminary inquiry she testified as in her statement to the police. At the trial in the High Court, however, the evidence of the prosecutrix was different. She stated on oath that she went to the house of the Appellant at 11.00 p.m. in response to an arrangement made in the afternoon. She further stated that she consented to have sexual intercourse with the Appellant but because she was afraid she told P.W.2 that a policeman (the Appellant) forced her to have intercourse with him and she repeated the same story at the Police Station.
Thus the 4th Prosecution Witness has in her evidence on oath retracted what she told the 2nd and 3rd prosecution witnesses and what she told the police at the Police Station. Faced with this problem learned Principal State Counsel (Mr. Gwam) asked permission of the trial court to “contradict the witness on certain aspects of her evidence” and permission was granted. The witness then was confronted with her statement to the police (Exhibit ‘D’) and some portions of her evidence at the preliminary inquiry in the Magistrate Court. In answer to questions she admitted having said all what was in the statement to the police and the question asked in respect of her evidence at the preliminary inquiry in the Magistrate Court. It Is to be noted that the deposition of the witness at the preliminary inquiry have not been put in evidence.
The first and the sixth grounds of appeal as substituted read as follows:
“1. The learned trial judge erred in law in finding the Accused/Appellant guilty of the offence of rape contrary to S.299 of the Criminal Code of the Western Region of Nigeria applicable in the Mid-West State.
(a) When there was no proof of an essential element of the offence-namely absence of consent by the prosecutrix to sexual intercourse with the Appellant.
(b) When there was in fact evidence of consent to sexual intercourse by prosecutrix Rosaline Alakpa (P.W.4).
Learned Principal State Counsel agreed with the submission made by learned counsel for the Appellant as stated above and agreed that if the evidence of the prosecutrix in this case was unreliable then that was the end of the prosecution case. We share this view. At the trial the prosecuting Principal State Counsel made his submissions in respect of the issue of consent and section 206 of the Evidence Act to the effect that the Evidence of the prosecutrix and the evidence of the other witnesses, that is P.W.2, P.W.3, P.W.5 and P.W.1 and together with the statement to the police by the prosecutrix (Exhibit ‘D’) and her evidence at the preliminary inquiry, would not only prove lack of consent but would prove that an offence has been committed on the prosecutrix. He further submitted that the case of Joshua v. the Queen (1964) 1 All N.L.R. 1 cited by counsel for the accused was not applicable because in this case the witness said something before a lower court and again said a different thing at the trial. We mentioned these submissions because the learned trial judge seemed to have accepted them as correct.
Having gone over the facts as far as we consider them relevant to this appeal we have to consider the effect of treating the prosecutrix as a hostile witness under section 206 of the Evidence Act. The effect of allowing a party producing a witness to impeach the credit of the said witness by showing that the witness made statements inconsistent with the evidence on oath is to make the witness unreliable; and this court has said so, over and over again. In the case of Christopher N. Onubogu and another v. The State (1974) 9 S.C. 1 at 17 this court said:
‘We thought that the submission of learned counsel for the appellants are well founded. In our view, where a witness, such as the complainant (P.W.4) in this case in hand, has made a statement before trial which is inconsistent with the evidence he gives in court, the court, provided that no cogent reasons are given for the Inconsistency, should regard his evidence as unreliable.”
In this same case (Onubogu’s case) this court re-affirmed its decision in the case of The Queen v. Joshua (above). The relevant passage at p. 18 reads:
“Again there is the decision of this court in the case of The Queen v. Joshua (1964) 1 All N.L.R. 1 at page 3 where we referred to the decision in R. v. Golder (1960) 1 W.L.R. 1169 with approval and also observed that where a witness has made previous statements inconsistent with the evidence given at the trial the court has been slow to act on the evidence of such a witness. In our decision in the case of The Queen v. Joshua we referred in particular to the observation of Lord Parker L.C.J. in his judgement in R v. Golder (Supra) on this point. The observation which is at p.1172 of the said judgment reads:-
‘In the judgement of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unswom, do not constitute evidence upon which they can act.’
It only remains for us to say that the learned trial judge in the instant case was clearly in error in stating, as he did in judgement, that this court did not, in the case of The Queen v. Joshua, say or hold the view that such inconsistency makes the evidence always unreliable. This is exactly what our decision in that case was intended to convey and did convey.”
In the instant case there is no doubt, from the totality of the evidence available, that the evidence given in court by the prosecutrix was complete contradiction to the evidence of P.W.2 and P.W.3 and also contradicted her statement to the police (Exhibtt’D’). It is pertinent hereto refer to the way the learned trial judge dealt with the contradictions in the evidence of the prosecutrix. Having quoted a passage in R v. Wainright 13 Cox C.C. 171 (as to variations between witness’s deposition and evidence at the trial) and after quoting the passage already quoted above in R v. Golder the learned trial judge continued as follows:
“From the above quotation, it is quite clear, that the judgment in R v. Golder does not confine itself to:
(a) inconsistency between deposition and evidence at the trial both of which are on oath it goes beyond the needs of the case and includes:
(b) inconsistency between an unsworn statement and the evidence at the trial. ……….
But with regard to (a) the judgment in Joshua v. The Queen (1964) 1 All N.L.R. page 1 is more guarded as Ademola C.J.N. in the judgment only said that:
‘In the case of a witness who had made previous statements inconsistent with the evidence given at the trial the court has been slow to act on the evidence of such witness’.
The judgment did not say that such inconsistency makes the evidence always unreliable. A witness may have a good explanation for why he told a different story and the court may think his evidence is credit worthy. In my view the judgement in Joshua v. The Queen leaves it open to argument.
In the light of the views expressed by Lord Cockburn C.J. in R v. Wainright, 13 Cox C.C. 171, 173 and Ademola C.J.N. in Joshua v. The Queen (1964) 1 All N.L.R. page 1 and careful consideration of the evidence of P.W.4 and at the trial, I am of the opinion that there is a substantial agreement between the evidence of P.W.4 at the PA. and that adduced at the trial and therefore her evidence should not be rejected as unreliable.”
We have not been able, with the greatest respect, to follow the reasoning of the learned trial judge in the last paragraph quoted above from the judgement. In the case of R v. Wainright (above) what Lord Cockburn C.J. said was:-
‘Too much importance ought not be attached to such variations, and if there is a substantial agreement between the evidence at the preliminary inquiry and that adduced at the trial that is sufficient.”
In the present case the deposition of P.W.4 (the prosecutrix) at the preliminary inquiry has not been put in evidence and we are therefore not in a position to compare the evidence at the trial with the evidence as contained in the deposition. In our opinion the learned trial judge was wrong in making such comparison as the deposition has not been put in evidence. If however the learned trial judge was relying on the questions put to the prosecutrix after she has been treated as hostile under section 206 of the Evidence Act, we find it difficult to see how he got the substantial agreement between the evidence of “P.W. 4 at the P.1 and that adduced at the trial.” The relevant portion of the evidence in chief reads:
‘The accused told me to come and I promised that I will come …… I went there at 11 p.m. in the night … When I took the sugar cane to him in the night, he said he was going to have sexual intercourse with me; then I agreed for the sexual intercourse. The accused said that I should pull my pants and I did so…… I laid on the mattress …..”
After the witness was treated as hostile the following transpired:
“From my statement to the Police and my evidence at the preliminary investigation I said I refused when he said he wanted to have sex with me. I said I refused to lie down and that he wanted to slap me if I cry. …… 1 said he pushed me down and tore my pants . . . .”
We could not see how these two portions could be reconciled to get substantial agreement. In any event any sworn or unsworn statement used in contradicting a witness, as in the present case, does not form part of the evidence which the trial court could act upon to prove the offence charged. (See Joshua v. The Queen and Onubogu v. The State above.)
We are also not in agreement with the learned trial judge in his observation of the passage in the judgment of Ademola CAN. in Joshua v. The Queen (quoted above). The learned trial judge had done exactly what the trial judge did in Onubogu v. The State. We need do no more here than re-affirm our decision in Onubogu v. The State on this point.
We have come to the conclusion that the evidence of the prosecutrix is unreliable and cannot be relied upon by the trial judge to find as he did, any lack of consent and base any conviction on such evidence. We have not also been able to trace any reliable, or indeed any evidence, upon which the trial court could have based its finding of fact to convict the appellant as charged. The evidence of P.W. 2 and P.W. 3 was no more than a report of the complaint made to them by the prosecutrix and could, at the best, be only used to show the consistency of the prosecutrix. This is the decision of the court in The Queen v. Lillyman, 1896, 2 OR 167 at 177 the relevant passage, with which we agree, reads:
‘The evidence is admissible only upon the ground that it was a complaint of that which is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness box, negativing her consent, and affirming that the acts complained of were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her.”We have in this case the evidence on oath of the prosecutrlx that she consented to the sexual intercourse; so even the consistency was not maintained. In the circumstances of this case and for the reasons which we have given we are satisfied that there was no evidence upon which the learned trial judge could have convicted the Appellant. For these reasons both the first and sixth grounds of appeal must succeed. The appeal was therefore allowed and the conviction and sentence quashed and verdict of acquittal substituted.