⦿ CASE SUMMARY OF:
Eyong Idam v. Federal Republic of Nigeria (2020) – SC
– Criminal force;
Federal Republic of Nigeria
⦿ LEAD JUDGEMENT DELIVERED BY:
Paul Adamu Galumje, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr. Abdullahi Haruna;
* FOR THE RESPONDENT
– Mr. Ibrahim Angulu;
⦿ FACT (as relating to the issues)
The Appellant herein, was arraigned before the High Court of the Federal Capital Territory on a two count charge of rape contrary to Sections 282(1)(a)(b) and (c) and punishable under Section 283 as well as criminal force contrary to Section 265, all of the Penal Code Law. On the 12th of April, 2006, the two count charge was read and explained to the Appellant and he pleaded not guilty. In order to prove its’ case, the prosecution called four witnesses and tendered in evidence the statements of the prosecutrix, the prosecutrix’s father, as well as that of the Appellant and they were admitted and marked Exhibits A, B and D respectively. Exhibit D was later expunged along with the evidence of PW3 who did not turn up for cross-examination.
After a careful consideration of the evidence before him, the learned trial Judge in his reserved and considered judgment found the Appellant guilty as charged and sentenced him to ten years’ imprisonment on count 1 and one-year imprisonment on count 2. Both sentences were ordered to run concurrently.
The Appellant was dissatisfied with the decision of the trial Court. Being aggrieved, he appealed to the Court of Appeal, Abuja Division and submitted two issues for determination of his appeal. The two issues were resolved against him and his appeal was dismissed. Again, the Appellant is dissatisfied with the decision of the Court of Appeal and has now brought this appeal.
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 are not excessive?
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the instant case, the Trial Court at page 154 paragraph two of the record of this appeal held: “In the course of this judgment, I have held that the prosecution had established that the prosecutrix was under fourteen years of age. By Section 282(1)(e) of the Penal Code, it is rape to have sexual intercourse with or without the consent of a girl who is under fourteen years of age. I have also found that the accused person had sexual intercourse with the prosecutrix. The cumulative effect of these findings is that the ingredients of an offence under Section 282(1)(e) of the Penal Code have been made out by the prosecution”.
ii. At pages 251 of the record, the Appellant admitted under cross-examination that he had had sexual intercourse with the prosecutrix more than six or seven times before this one for which he is standing trial. With this admission, the question of penetration of the vagina of the prosecutrix is no longer in controversy. The question is whether the victim was below 14 years as at the time of the commission of the offence. PW2 the father of the prosecutrix who had the record of her birth gave evidence that she was 13 years at the material time. Whether she consented to the sexual intercourse or not, the Appellant’s act of sexual intercourse with her amounted to rape.
iii. The question now is whether the Appellant used force against PW 1. PW 1 at page 172 of the Record of this appeal testified as follows: – “I went close to him and he grabbed me and told me that if I shout that Mopol is to kill and go. When I was scared to shout, he pulled off my pant, fall me down on the ground and raped me”. Pushing PW1 to the ground was clearly an act of criminal force. Since there is evidence of rape, any act of trespass to the body of PW1 in preparation to commit an offence is clearly an act of criminal force.
IN REGARDS TO THE SENTENCE THE SUPREME COURT HELD: It is equally settled that where judicial discretion has been exercised bona fide uninfluenced by irrelevant consideration and not arbitrarily or illegally by the Court, the general rule is that the Appellate Court will not interfere. The punishment for rape as provided under Section 283 of the Penal Code is life imprisonment, and a mandatory sentence of fine. The Trial Court imposed a sentence of ten years’ imprisonment and left out the mandatory fine. I am of the firm view that the Trial Court was sufficiently magnanimous in the manner it imposes sentence of imprisonment. The learned trial Judge was also lenient in passing sentence under Section 265 of the Penal Code. I therefore have no reason to interfere with the exercise of the Trial Court’s discretion which was affirmed by the Lower Court.
⦿ SOME PROVISIONS
Section 282 provides as follows:
282(1) A man is said to commit rape who, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstances:
(a) against her will;
(b) without her consent;
(c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt.
(d) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(e) With or without her consent, when she is under fourteen years of age or of unsound mind.
(2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.
Section 283 of the same Penal Code provides as follows: Whoever commits rape, shall be punished with imprisonment for life or for any less term and shall also be liable to fine.
Section 263 of the Penal Code thus:
Whoever intentionally uses force to any person without that person’s consent:
(a) While preparing to commit any offence;
(b) In the course of committing any offence, or
(c) Intending by the use of such force, he will cause injury, fear or annoyance to the person to whom the force is used is said to use criminal force to that other.
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
Finally, this appeal is against the concurrent findings of the trial court and the Court of Appeal and the attitude of this Court is that it will not interfere with those findings, unless it is shown that they are perverse. The Appellant has failed to convince me to so interfere with these concurrent findings. The sole issue formulated by me is therefore resolved against the Appellant. This being so, this appeal shall be and it is hereby dismissed. – Adamu Galumje, J.S.C. Eyong v. Federal Republic of Nigeria (2020)