Ofordike v. The State [2019] 5 NWLR (Pt. 1666) 395 at 422, paras. C-E, per Okoro, JSC:

In the instant case, although the PW1 stated that the Appellant actually penetrated her, the Appellant, in Exhibit A, said he was about to penetrate. The learned trial Judge gave him the benefit of the doubt in view of the fact that both PW1 in her testimony before the Court and in Exhibit A (the Confessional Statement) of the Appellant, it is clearly shown that the Appellant’s penis could not attain erection immediately but had to be caressed by PW1 before it kick started like the old Moris Minor Lorry which had to be wound up as generator to start the engine. In the process, Gedu gave signal that “yawa don gas” meaning “alarm don blow”. At that stage he put on his dress and joined Gedu to escape. Unfortunately for him, he was pursued and arrested. He joined Gedu to drag the PW1 into the bush, joined in tearing the lady’s dress and pant, watched the environment for Gedu to rape the PW1 and thereafter “climbed” her only to experience low current. Had Gedu not signaled him of persons coming to the rescue of the PW1, the Appellant could have completed the act of rape. He was, in my opinion properly convicted of attempt to commit rape. The court below was also right to affirm his conviction for attempted rape.

Notes:

This was a case decided based on the testimony of the victim of crime, who was the sole witness for the prosecution (PW1), and the Confessional Statement of the Appellant. The sad narrative was that a married woman and trader was on her way to attend Adult School when she was accosted by the Appellant and one other who stopped her and forcibly took her bag, threatened her with a short gun and broken bottle. They took the N2,000 found in the bag but because the money was too small, they dragged her into the bush. According to the PW1, she was raped in turns. After the first man raped her, the second, being the Appellant had a little difficulty. The Appellant had torn her skirt, her knicker and pant but could not have erection. He then ordered the woman to caress his penis so that his penis could get erect. The woman obliged him out of fear and he was able to penetrate her. According to PW1, her shouting in the process alerted people in the neighbourhood who came to her aid while her assailants fled. But the Appellant was caught after 200 yards race. He pleaded with the woman saying, “Madam, forgive me, madam forgive me, it is devil work.” He was thereafter taken to the police station. He was lucky he was not lynched.

There was slight discrepancy which existed between the woman’s story and the story of the Appellant as contained in his Confessional Statement, which he unsuccessfully denied as not his statement. In his Confessional Statement (admitted as Exhibit A), the Appellant stated that after the woman caressed him and he had erection, he was yet to rape the woman before the people came after them and they had to flee. In his words, “As the woman was robbing my penis, Gedu shout from where he was standing saying yawa don gass, which means alarm don blow. I saw Gedu running I now quickly dress up and started running.” However, in her own account, the woman said that the Appellant also raped her after she helped him awaken his sleeping device.

The trial Judge was of the opinion that the Appellant must go down for attempted rape instead of the charge of rape itself. The Court of Appeal and the Supreme Court upheld the decision. However, Okoro, JSC still found it necessary to express an opinion (obiter dictum) when he said:

The PW1 said that she helped to kick start the penis out of fear. For me, had the learned trial Judge convicted the Appellant for rape, I will have no problem because the PW1 who is the owner of her body testified that there was penetration. That notwithstanding, I am satisfied to agree with the Court below that the learned trial Judge was right to convict the appellant for the offence of armed robbery and attempted rape.

The writer agrees with his Lordship’s opinion. It seems the learned trial Judge was only persuaded by the undisputed evidence that the Appellant had experienced low voltage in his erectile capacity. The Judge could have also averted his mind to the fact that there was undisputed evidence that the period of “low voltage” was immediately followed by “normal voltage” after the woman electrified the sleeping organ.

Well, it is important to mention that although the Appellant was convicted for attempted rape, he was also convicted for armed robbery and accordingly sentenced to death by hanging.