HOW TO ESTABLISH THE OFFENCE OF DEFILEMENT

CASE TITLE: EZE v. STATE (2019) LPELR-47984(CA)

JUDGMENT DATE: 3^RD JULY, 2019

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: ABUBAKAR SADIQ UMAR, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal and cross-appeal borders on Criminal Law and Procedure.

FACTS

This appeal is against the judgment of the High Court of Ebonyi State, Abakaliki Judicial Division, delivered by D.O. OKOH J. on the 22nd December, 2014 wherein the Appellant/Cross-Respondent was arraigned on a two-count charge of defilement contrary to Section 218 of the Criminal Code Law cap 33 Vol. 1, Laws of Ebonyi State of Nigeria 2009 and indecent assault punishable under Section 222 of the Criminal Code law Criminal Code Law cap 33 Vol. 1, Laws of Ebonyi State of Nigeria 2009.

The brief facts that culminated into the filing of the instant appeal as gleaned from the record are that the Appellant on the 17th day of May 2012 walked into the compound of Mrs Ifeyinwa Egbe, PW2 at the Court below when neither PW2 nor any adult was at home. The Appellant was said to have met PW2’s children the oldest of whom was Chiemerie Amaka (PW1). Appellant requested for a cup of water from the said PW1 and the Appellant’s request was granted. The Appellant was said to have asked PW1 to show him the stone on which her parents sharpened machetes within the compound and all of a sudden, the Appellant was said to have suddenly seized PW1, gagged her mouth, whisked her into a bush behind PW1’s compound, stripped her of her clothing and had unlawful carnal knowledge of her.

The Respondent/Cross-Appellant at the Court below called four witnesses who testified as PW1 – PW4 while the Appellant/Cross-Respondent testified in his defence without calling any other witness (es). At the conclusion of the trial, the Court below in its judgment discharged the Appellant/Cross-Respondent for the offence of indecent assault but convicted him for the offence of defilement and sentenced him to five years imprisonment, without an option of fine.

Dissatisfied with the decision of the Court below, the Appellant/Cross-Respondent appealed to the Court of Appeal.

Also dissatisfied with a part of the decision of the Court below, the Respondent/Cross-Appellant cross-appealed.

ISSUES FOR DETERMINATION

The Court determined the main appeal on a sole issue:

“Whether the offence of defilement was proved beyond reasonable doubt by the prosecution to warrant a conviction?”

The Court determined the cross-appeal on a sole issue:

“Whether the trial Court was right in law to have discharged the Cross-Respondent for the offence of indecent assault despite having held that he was guilty of the offence of rape?”

DECISION/HELD

On the whole, the Court found no merit in this main appeal and same was dismissed. Accordingly, the part of the judgment of the trial Court holding that the Appellant is guilty of the offence of defilement contrary to Section 218 of the Criminal Code Law cap 33 Vol. 1, Laws of Ebonyi State of Nigeria 2009. was affirmed.

On the other hand, the cross-appeal was held meritorious and same upheld. Accordingly, the part of the judgment of the trial Court discharging the Cross-Respondent on the offence of indecent assault contrary to Section 222 of the Criminal Code Law cap 33 Vol. 1, Laws of Ebonyi State of Nigeria 2009 was set aside. In its place, an order of guilt was entered and the Cross-Respondent was sentenced to 3 years imprisonment. The sentence shall, however, run concurrently with the five years term ordered by the Court below in the main appeal.

RATIOS:

• CRIMINAL LAW AND PROCEDURE – OFFENCE OF DEFILEMENT: Whether the failure to bring a charge of defilement within the two months robs the court of jurisdiction to entertain same
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF DEFILEMENT: Whether the evidence required to prove defilement is the same as in a charge of rape; exception
• CRIMINAL LAW AND PROCEDURE – CONVICTION FOR LESSER OFFENCE: Instance when an accused can be convicted of a lesser offence other than the one charged
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF DEFILEMENT: What the prosecution must prove in order to sustain a conviction for the offence of defilement