Girl child age 11 cannot give consent – SC

The one count information laid against the appellant reads:
“Statement of Offence:
Rape punishable under Section 358 of the Criminal Code Cap C 21 Vol 1 Laws of Delta State of Nigeria, 2006.
Particulars of Offence:
Afor Luck (m) on or about the 7th day of April, 2012 at Oleh in Oleh Judicial Division had carnal knowledge of one Iruoghene Ogodo without her consent”.
Appellant was tried and convicted as charged in the High Court of Delta State, in the Oleh Judicial Division sitting at Oleh. After the appellant was convicted by the trial Court, his learned Counsel, S. O. Obaro, Esq., in allocutus pleaded, inter alia:
“ The accused is truly repentant of the offence and has vowed never to find himself in this situation again “
The learned trial Judge sentenced the appellant, thus: “ this accused person is sentenced to a term of imprisonment of five (5) years with hard labour or with an option of fine of three hundred thousand (=N=300,OOO.OO)” .
Appellant appealed to the Court of Appeal, Benin Judicial Division sitting at Benin City. The Court below dismissed the appeal on l7 November, 2014. Appellant appealed to this Court on six grounds of appeal.
From the six Grounds of Appeal, learned Counsel for the Appellant formulated these five issues for determination:
    “1.     Whether the Court of Appeal was right to have held that Counsel for the appellant conceded that rape was committed. (Ground 1).
2. Whether the Court of Appeal did not speculate when it held that the appellant had sexual intercourse with the prosecutrix (PW 1). (Ground 2).
3. Whether in the circumstances of this case the Court of Appeal was right in holding that the defence of alibi was not open to the appellant. (Ground 3).
4. Whether the evidence of PW3 (Medical Doctor) can in the circumstances of the case amount to corroboration. (Ground 4).
5. Whether allocutus amounts to admission of guilty.”
 
RESOLUTION OF ISSUES:
Learned Counsel for the Respondent formulated a single issue and in the course of argument he traversed the five issues argued by learned Counsel for the appellant. It is therefore appropriate to deal with the appeal on the five issues in the appellant’s brief.
Issue 1 framed from Ground 1 of the Notice of Appeal is on whether the Court of Appeal was right to have held that Counsel for the appellant conceded that rape was committed.
Learned Counsel built his issue one on a portion of lead judgment of the lower Court to the effect that:
“Learned Counsel for the appellant conceded to the fact that from the fact as adduced in the lower Court, it is clear that the offence of rape had been committed.”
Learned Counsel for the appellant vehemently denied the admission credited to him by the Court below. He contrasted the alleged admission with what he said he actually said, to wit:
“From the circumstances of this case it is highly difficult to draw the conclusion that the PWl was raped by the appellant and that assuming but without so conceding that there was penetration, the prosecution did not prove that it was done without the consent of the PW1.”
    “5.30     A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.”
The above provision shows that the PW1 who was 11 years old as at the time of the act on 7/4/2012 could not have been held criminally responsible for an act or omission. It follows that the PWl could not have done anything to decriminalise an otherwise criminal act done to, or with her, on 7/4/2012.
At the material time she was dolic incapax and contrary to the argument of learned Counsel for the appellant the PWl could not have given a consent which in law she did not possess. The purported consent on which the appellant’s Counsel relied to disprove rape cannot avail him, there being no evidence of such precocity that could bring the PW1 within the exception in Section 30 of the Criminal Code Law.
In the circumstances, I agree with the Court below that learned Counsel for the appellant conceded that rape was committed as the consent on which he relied to argue that the intercourse was consensual had crumbled. I resolve issue one against the appellant.
 Issue 2 is on whether or not the Court of Appeal speculated when it held that the appellant had sexual intercourse with the prosecutrix (PW1).
Issue 3 with which Issue 2 was argued is on the propriety vel non of the lower Court’s finding that the defence of alibi was not open to the appellant.
In spite of the fact that the appellant pleaded not guilty to the charge, saying he did not at any time have carnal knowledge of the prosecutrix his Counsel, in paragraphs 3.11, 3.12 and 3.14 of his brief conceded that the appellant had carnal knowledge of the PW1 as charged but sought to justify the said act on alleged consent to the act by the PW1. It was demonstrated in the resolution of issue one that no such consent could have been given by the PW1 at the material time.
In relation to issue one, learned Counsel for the appellant conceded the fact of sexual intercourse between the PW1 and the appellant and argued there was no rape because the PW1 consented to the act. At the tender age of 11 years, even if the prosecutrix (PW1) solicited the act of sexual intercourse with the appellant, the appellant would have had unlawful carnal knowledge with the prosecutrix if he had intercourse with her.
It would have been unlawful carnal knowledge of a woman or girl without her consent for the PW1, in law, could not give consent.
In my view and based on the resolution of issue one, the Court below did not speculate but was on a firm ground when it held that the appellant had sexual intercourse with the prosecutrix.
Alibi means “elsewhere”.
 The essence of the plea is that the accused person, at the time the offence was committed, was somewhere other than the locus in quo and could therefore not have committed same. The Court below did not speculate when it held that defence of alibi failed. I resolve issues 2 and 3 against the appellant.
Issue 4 is whether the evidence of PW3 (Medical Doctor) can in the circumstances of the case amount to corroboration.
My Lords, I will consider issue 4 on corroboration, first, in relation to the complaint of the prosecutrix that she was raped and in relation to the allegation that it was the appellant who raped her.
The legal principle in respect of the offence of rape is that corroboration is evidence or pieces of evidence tending to show that the story of the prosecutrix that the accused raped her is true.
Corroboration need not be direct evidence that the accused committed the offence charged. It need not amount to a confirmation of the whole account given by the prosecutrix. However, it must be completely credible evidence which corroborates the prosecutrix’s evidence in some aspect material to the charge.
It is in the light of the above principle that I will settle issue 4 as regards the evidence of PW3.
Dr Obefor Benedict, testifying as PW3, stated that: “I am a Medical doctor attached to the General Hospital, Oleh . I am a Chief Medical Officer. On that 10th April, 2012 she was still bleeding from her vagina. I examined her and there was bleeding from the vagina, where the hymen was torn. There was also an injury from the vagina wall. In my opinion the injury might be due to forceful penetration of the vagina. I took the PWl to theatre where I sutured the injured wall of the vagina. The PWl was discharged on the 15th day of April, 2012. I subsequently issued a Medical Report.”
Under cross-examination, the PW3 stated, inter alia: “Other causes could lead to the tearing of the virginal wall other than forceful penile penetration. The riding of a bicycle could cause a tearing of the hymen if it comes into contact with the sharp edge.”
The PW3 did not perform any test on the appellant to find a link between the appellant and the offence committed on the PW1. In the circumstances, the corroborative quality of the evidence of PW3 is limited to, and does not exceed, the fact that the PWl was raped. The two Courts below, in my humble view, erred to have held that the evidence of PW3 corroborated the entire evidence of the PWl that she was raped and that the rapist was the appellant. That the appellant was the one who raped the PWl could only be ascertained on the totality of the evidence adduced by both sides before the trial Court.
My Lords, I will now consider the totality of the evidence before the trial Court to determine whether the evidence of the PWl that it was the appellant who violated her was corroborated.
In a majority of cases where the rapist was not caught in the act and was not subjected to medical examination there is usually no direct evidence that the appellant raped the prosecutrix as alleged. Corroboration of the evidence of the prosecutrix that the appellant raped her can be gleaned from the pieces of evidence before the trial Court, or inference drawn from same.
In the case at hand, while there is ample corroborative evidence that the PWl was raped there is no direct evidence, in my view, corroborating the evidence of the PWl that it was the appellant who raped her. However, in his defence appellant set up a defence of alibi which was exhaustively considered and in my view rightly rejected by the two Courts below. I dealt with the appellant’s plea of alibi in the resolution of issue 3 in the appellant’s brief.
It is not helpful to have a repeat performance. Suffice it to say that the two Courts below rightly held that the appellant failed to substantiate the plea on the balance of probabilities. In the particular circumstances of this case, the plea of alibi set up by the appellant is a two-edged sword, as it were.
It could avail the appellant and ipso facto destroy the prosecutrix’s case against him. On the other hand, it could crumble, and on the facts as I appreciate them corroborate the prosecutrix’s case that about 4 pm on the 7th day of April, 2012 the appellant was at the locus criminis and violated her. If the plea had been sustained it would have meant that the appellant was somewhere other than the scene of crime and as he could not have been capable of being in two different places simultaneously, he could not have violated the PW1.
On the other hand, the fact that the appellant, by his evidence and the evidence of his witnesses could not prove on the balance of probabilities that he was somewhere else and not at the scene of crime by 4 pm on 7/4/2012, a fact upon which he rested his case that he did not commit the offence, the reverse is the case, that he was at the scene at the material time and committed the offence as claimed by the PW1. The high watermark of the defence of the appellant that about 4 pm on 7/4/2012 he was somewhere other than at the scene of crime has become his undoing.
In my humble view, the failure of his plea of alibi, on the facts of this case, leads to one inevitable conclusion that the appellant was at the scene of crime and had raped the appellant. The corroborative evidence could come from either side of the divide. In my view, there is corroborative evidence, not only that the PWl was raped but also that it was the appellant who raped her.
So even without the evidence of the PW3 and the failed alibi of the appellant, the Court, having believed the evidence of the PW1, could have rightly convicted the appellant after warning itself that it is unsafe to convict on the uncorroborated evidence of the PW1. Issue 4 is resolved against the appellant.
Issue 5 is whether or not allocutus amounts to admission of guilt? The issue reproduced supra is built on the concluding portion of the lead judgment of the Court below, reproduced hereunder:
I shall for purposes of clarification and emphasis reproduce the Allocutus as proffered by learned Counsel for the appellant after the latter had been convicted as charged: ‘On behalf of the accused person I hereby make this allocutus. He is a first offender. A young man who is an apprentice deserved the leniency of Court. The accused is fully repentant of the offence and has vowed never to find himself in this situation again. We plead that Court be lenient my Lord’.
From the totality of all of the above findings and conclusions, it is my humble view that this appeal is totally lacking in merit and I do dismiss it accordingly. The conviction and sentence of the appellant is hereby upheld.”
Allocutus is a plea in mitigation of the punishment richly deserved by appellant for the offence with which he was charged and for which he was tried and found guilty and convicted accordingly.
Learned Counsel for the appellant appears to have interpreted the comment made by the lower Court in the plea of allocutus to mean that the Court held that the appellant at that stage changed his plea of not guilty to that of guilty. This is erroneous. Whatever impression learned Counsel for the appellant gathered from the Court’s comment, the fact remains that under our law of criminal procedure an accused person cannot plead or change his plea by proxy. The plea is that of the accused, not that of his Counsel. See Section 215 of the Criminal Procedure Law of Delta State (supra).
While learned Counsel may enter a plea in mitigation for his client who has been convicted of a criminal offence prior to sentencing, a plea or change of plea remain the prerogative of the accused person.
Before the Court below made its reference to learned Counsel’s plea in mitigation of sentence, the Court had already concluded that the prosecution proved its case against the appellant beyond reasonable doubt. It follows that contrary to the learned Counsel’s argument the comment is an aside and was not the basis of the lower Court’s judgment. Though I am constrained to resolve the issue in favour of the appellant, the effect is a pyrrhic victory which in reality confers no benefit to the appellant. The issue is based on erroneous interpretation of the comment of the lower Court. It was taken out of context.
I was tempted to revisit the sentence in this case but that would have violated the principle that appellate Court cannot disturb a sentence imposed unless there is an appeal against the sentence. A violation of that principle would be as much a wrong as the punishment imposed on the appellant and there is a truism that two wrongs do not make one right.
In the case at hand appellant killed something in the psyche in the life of PW1, leaving the poor girl devastated and with a permanent scar for life. The principle of inviolability of a sentence not appealed against which I am duty bound to apply herein most regrettably and painfully appears to give credence to the saying that the law is an ass. May be the asinine attribute is not inherent in the law but in the application of its provision as amply demonstrated in this case.
In conclusion, having resolved the five issues, except one, against the appellant I dismiss the appeal for want of merit. The judgment of the Court below which affirmed the judgment of the Court below is hereby affirmed.
Appeal dismissed.
NWALI SYLVESTER NGWUTA, JUSTICE, SUPREME COURT

Appearances:
Ikhide Ehighelua (with him A. E. Alagun) for the appellant.
Peter Mrahpo, AG Delta State (with him O. F. Enenmo and C. O. Agbogun) for the respondent.