CaseLaw
Ogunbayo V. State (2007) CLR 3(a) (SC)
Judgement delivered on March 9th 2007
Brief
Facts
The facts of this case leading to the instant appeal, according to the prosecution/the Respondent, briefly stated, are that the Appellant raped and had carnal knowledge of the PW1- one Kemi Adekunle (a girl of thirteen (13) years of age), without her consent at Oke-Ijebu, Abeokuta, Ogun State on 23rd December, 1987 contrary to Section 357 of the Criminal Code Cap. 29 Vol. II, Laws of Ogun State of Nigeria, 1978 and punishable under Section 358 of the same Law, Five (5) witnesses, testified for the prosecution and twelve (12) Exhibits were tendered. The case for the prosecution, is that on 23rd December, 1987, while PW1- the prosecutrix, was stooling in their own garden toilet, the Appellant surprisingly, opened the door of the said toilet and rained slaps on her face. He then dragged her from the said toilet, through the open boundary/fence of the Appellant's house and their own house where the PW1 was living. The P.W.1 swore that she was struggling with the Appellant, but she was overpowered by the Appellant. She shouted in the process of her being so dragged. The Appellant dragged her into a room where he undressed by removing his trousers and floored her on the bare floor of the said room and forcefully had carnal knowledge of her i.e. sexual intercourse with her after forcefully removing her pants. That it was in the process of being dragged on the ground, that her dress-Exhibit "B", was/became smeared with mud dirt. That after the act of having sexual intercourse with her, that the Appellant, warned her that if she continued shouting for help, he would open the room door and expose her nakedness to the world or household so as to shame her.
After That shortly thereafter, one of her sisters by name Yemisi, came to knock on the door of the said room and told her that her father wanted to see her. That when she got up from the floor and came out of the room reeling with pain, she came face to face, with her father who was coming in her direction. She there and then, reported the entire incident to him of how the Appellant forcefully had sexual intercourse with her and that her father enquired from her, the whereabouts of the Appellant. She took the father to the said room where the Appellant was. That at the sight of her father, the Appellant bolted away or fled. That her father beat her up and took her to the police station where he reported the ugly incident of the forcible sexual intercourse with her by the Appellant. She identified the dresses (Buba and native trousers) worn by the Appellant at the time of the incident, which were tendered and marked Exhibits A and B respectively.
That shortly thereafter, one of her sisters by name Yemisi, came to knock on the door of the said room and told her that her father wanted to see her. That when she got up from the floor and came out of the room reeling with pain, she came face to face, with her father who was coming in her direction. She there and then, reported the entire incident to him of how the Appellant forcefully had sexual intercourse with her and that her father enquired from her, the whereabouts of the Appellant. She took the father to the said room where the Appellant was. That at the sight of her father, the Appellant bolted away or fled. That her father beat her up and took her to the police station where he reported the ugly incident of the forcible sexual intercourse with her by the Appellant. She identified the dresses (Buba and native trousers) worn by the Appellant at the time of the incident, which were tendered and marked Exhibits A and B respectively.
The Appellant who claimed to be an Actor or Dramatist, denied the allegation or charge and claimed that the PW1, had been his girl friend for eight (8) months before the date of the incident. That he had never had any sexual intercourse with the PW1. The PW1 visited him about 3.15 p.m. on the day in question to solicit for his assistance to find out from her school teacher, whether she had indeed failed in her examination which result was being expected. That while in the bathroom, he heard the voice of the PW2- the father of the PW1 asking about his (Appellant's) whereabout. That PW2 met him in the bathroom in company of some others and gave him "unexpected" slaps and then, ordered his drivers (two of whom he knew very well) to beat him up. That he was thoroughly beaten up by PW2 and the five (5) drivers. That they tore his dress- Exhibit K. That he enquired from the PW2 why he chose to beat him up assisted by his drivers. That some neighbours came and enquired from PW2, why he was being beaten. That 2nd PW stated that he had no moral right to befriend his daughter Kemi since he was poor when the likes of Oba Oyebade Lipede's sons who are rich and eligible, have/had not dared. That he succeeded to escape and went to his father's house at Ijemo Agbadu to explain what happened to him in the hands of PW2 to his brother who lives there. That his said brother, treated him for his pains and advised him to lodge a report with the Police of the incident at the Police Station which he did-accusing the PW2 of assault. That a police corporal was assigned to him to go to the house of PW2 to invite him to the police station, but that they did not meet him in his house. That the only time he was naked was on 23rd December, 1987, when he struggled to escape from the clutches of the PW2 and his five (5) drivers after they had beaten him up and tore the dress he wore during the said beating. He called two (2) witnesses which did not include his said brother and some of the said neighbours.
At the close of the defence, the learned counsel for the parties, addressed the Court. In a considered judgment delivered on 3rd December, 1991, the learned trial Judge - Somolu, J. (as he then was), found the Appellant guilty of the charge and sentenced him to a term of seven (7) years imprisonment with hard labour or in its lieu, to a fine of N5,000.00 (five thousand naira).
The learned trial Judge found that there was evidence (from the plaintiffs) that there were other children and grandchildren of Chief T. K. Dada who were not mentioned in Exhibit A. He therefore found that those other children and grandchildren acquired no interest in the land granted. The learned trial Judge observed that there was no averment in the statement of claim that the Aige family ever granted or allotted the land in dispute delineated on Exhibit A to Chief T.A. Dada.Dissatisfied with the conviction and sentence, the Appellant, appealed to the Court below that dismissed the appeal, hence the appeal to this Court.