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KINGSLEY EZE v. THE STATE

(2019) LPELR-47984(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 3rd day of July, 2019

CA/E/81C/2017


Before Their Lordships

MONICA BOLNA'AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria


Between

KINGSLEY EZE - Appellant(s)

AND

THE STATE - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal and cross-appeal borders on Criminal Law and Procedure.
FACTS:
This appeal and cross-appeal are against the judgment of High Court of Ebonyi State, Abakaliki.

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 canal 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 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 trial Court, the Appellant/Cross Respondent appealed to the Court of Appeal.

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

ISSUES:
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 for 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 for 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 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 is to  run concurrently with the five years term ordered by the trial Court  in the main appeal.


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