NWLR (Pt 693) 16 and Ogbuanyinya & 3 Ors v Okudo & Ors (No. 2) (1990) 4 NWLR
(Pt 146) 551 at 556.
There are indeed many concessions that cannot be denied learned appellant's
counsel. I entirely agree with him, and learned respondent's counsel does not
begrudge the point, that to establish the offence of rape for which the appellant
is convicted, the four ingredients to be proved are:(i) That the appellant intentionally had sexual intercourse with PW1, the
prosecutrix.
(ii) That the sexual intercourse was without the consent of PW1.
(iii) That PW1, at the time of the sexual intercourse, was not appellants wife and
(iv) That there was penetration. See Affor Lucky v. The State (2016) LPELR-40541
(SC), POSU & Anor v. The State (supra) and Kazeem Popoola v. The State (2013)
LPELR-20973 (SC).
The aggregate implication of these ingredients is that the appellant is only guilty
of the offence of rape if the concurrent findings to that effect by the two Courts
below are based on evidence that the appellant knowingly had sexual intercourse
with PW1, without her consent. From the record of this appeal, PW1, appellant's
victim, was three years at the time of the rape which fact necessitates reminding
the learned appellant's counsel the import of the clear and unambiguous words
that constitute Section 39(c) and more particularly Section 282(1)(e) of the Penal
Code. The Sections provide:"39 (c) A consent is not such a consent as it intended by any Section of this Penal
Code, if the consent is given(c) by a person who is under fourteen years of age.
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