Does a Visit Imply Consent to Sex?

CASE TITLE: OLOYEDE V. STATE OF LAGOS LPELR-82724(CA)
JUDGMENT DATE: 2ND DECEMBER, 2025

JUSTICES: DANLAMI ZAMA SENCHI, J.C.A.
ABDULAZEEZ MUHAMMED ANKA, J.C.A.
UWABUNKEONYE ONWOSI, J.C.A.

PRACTICE AREA: CRIMINAL LAW

FACTS:

This appeal borders on the Offence of Rape.

This is an appeal against the decision of the High Court of Justice of Lagos State, sitting at Ikeja, Judicial Division delivered by his Lordship, Honourable Justice A. O. Soladoye on the 25th of June, 2021.

The Appellant, (as Defendant) was arraigned on a one-count charge contained in the Information for the offence of rape Contrary to Section 260 of the Criminal Law, Cap C.17, Vol. 3, Laws of Lagos State, 2015.

The victim (PW2), who testified that she was lured under the influence of ritualistic commands into the Appellant’s residence. PW2 stated that when the Appellant attempted to remove her underwear, she resisted and cried for help, but no one responded. He threatened to detain her and he repeatedly rape her for seven days by hitting her with the ring in his finger. Despite her pleas and disclosure that she was a virgin, he overpowered and raped her, warning her not to tell anyone or she would vomit blood and die. She informed her sister (PW1) about the incident following which, they reported same to the Police and were given a letter by the IPO to Ikorodu General Hospital where they underwent medical examination. She testified that the Appellant initially fled during arrest but reported later and then arraigned. During cross examination, she stated that she gave the police her torn white-and-black underwear. PW1 confirmed that she went to the Police Station and hospital with PW2.

PW3, the IPO testified that she investigated the rape allegation against the Appellant. She obtained the statements of PW2 who came with her guardian, PW1; referred them to Ikorodu General Hospital, where the medical report confirmed sexual assault. She affirmed that the Appellant initially evaded arrest but later reported on the 15th of January, 2020 after his family was served a letter by the Police. During interrogation, he confessed to the act, stating his intention was to verify if PW2 was a virgin.

PW3 confirmed the recovery of PW2’s pants and tight as Exhibits B1 and B2, and the Appellant’s confessional statement as Exhibit C. PW4, the medical doctor, confirmed that PW2’s hymen was ruptured and that penetration had occurred. Although, he acknowledged that hymenal rupture could result from consensual intercourse.

The Appellant was found guilty of the offence of rape contrary to Section 260 of the Criminal Law, CAP C17, Laws of Lagos State, 2015 and accordingly, convicted and sentenced him to a term of twenty-five (25) years in prison without the option of a fine.

Dissatisfied, the appellant filed the instant appeal

ISSUES FOR DETERMIATION:

The Court determined the appeal on this issue:

Whether the trial Court properly evaluated the evidence and rightly found that the prosecution proved the offence of rape against the Appellant beyond reasonable doubt, particularly with respect to the element of consent and the credibility of the prosecution’s witnesses?

COUNSEL SUBMISSIONS:

Counsel  to the Appellant contended that the prosecution’s case relied heavily on the testimonies of PW1, PW2, PW3, and PW4, none of which, in his view, were sufficient to sustain a conviction. He noted that PW1 was not present during the alleged incident, and PW2’s testimony lacked corroboration. PW2 admitted knowing the Appellant prior to the incident and voluntarily entered his residence and bedroom. Her claim of being influenced by fetish substances was unsupported, as none of those items were produced in Court. With respect to PW4, the medical doctor, Counsel submitted that his evidence was riddled with contradictions and lacked conclusiveness. The doctor acknowledged that the complainant’s hymen could have been ruptured through consensual intercourse and failed to conduct further diagnostic tests. PW3’s testimony, he argued, was based solely on hearsay. Counsel emphasized that where doubt exists in the prosecution’s case, the benefit must be accorded to the accused, citing EKPE V. STATE (1994) 9 NWLR (PT. 368) 263 AND OGUNBAYO V. STATE (2001) NWLR (Pt. 1035) 157. He submitted that the issue of consent was not properly resolved and that the prosecution failed to establish that the sexual act occurred without the complainant’s consent. He further argued that corroboration was essential in cases of this nature, relying on IKOV V. STATE (2001) 14 NWLR (Pt. 732) 221. The absence of the alleged fetish substances, which could have served as corroborative evidence, was fatal to the prosecution’s case. Counsel cited MBELE v. STATE (1990) 4 NWLR (Pt. 145) 484 and UBIERO V. STATE (2005) All FWLR (Pt. 2545) 804, stressing the need for judicial caution when convicting on uncorroborated evidence.

He referred to ADONIKE V. STATE (2015) 1 MISC, where the Supreme Court outlined the ingredients of rape or defilement, including sexual intercourse, absence of consent, mens rea, and penetration. Counsel submitted that the trial Court erred in concluding that these elements were proved beyond reasonable doubt. He maintained that PW4’s admission that the hymen could have been ruptured through consensual intercourse, coupled with the absence of rough handling and failure to conduct further tests, rendered the evidence inconclusive. He cited OGBU v. STATE (2007) 2 NCC 370 and UDOSEN V. STATE (2007) 2 NCC 428 – 429, submitting that contradictions and doubt in the evidence must be resolved in favour of the Appellant.

On the final issue, Counsel argued that the trial Court failed to consider all defences available to the Appellant. He noted that the complainant, a 25-year-old woman who knew the Appellant as a neighbour, voluntarily entered his bedroom and later claimed to have acted under the influence of fetish substances – none of which were produced. He submitted that the testimonies of PW1 and PW2 supported the Appellant’s account of a pre-existing relationship and consensual intercourse.

Learned Counsel for the Respondent submitted that the prosecution had successfully discharged the burden of proof required to establish the guilt of the Appellant beyond reasonable doubt. He stated that under Nigerian criminal jurisprudence, the prosecution may prove its case through any of the following: (a) a confessional statement by the accused; (b) direct eyewitness testimony; or (c) circumstantial evidence. In support, Counsel cited SAMINU V. STATE (2019) LPELR-47622 (SC), where the Supreme Court affirmed these modes of proof and reiterated that the burden of proof lies solely with the prosecution, not the accused. He also referred to AGBOOLA V. STATE, NIGERIAN NAVY V. LAMBERT (2007) 18 NWLR (Pt. 1066) 300, and ALUFOHAI V. STATE (2014) 12 SCM (Pt. 2) 122; (2015) 3 NWLR (Pt. 1445) 172.

Counsel argued that in the present appeal, the prosecution called PW2, the victim, who gave a vivid and consistent account of the events on the day of the incident. He noted that PW2 remained firm under cross-examination and described how the Appellant overpowered her and tore her underwear before raping her in a small room. He referred the Court to pages 82 – 83 of the Record of Appeal.

He further submitted that PW3’s testimony reinforced PW2’s account and confirmed that the under pant and tight worn by the victim on the day of the incident were torn. These items were tendered and admitted as Exhibits B1 and B2. Counsel stated that PW4’s medical findings were consistent with PW2’s narrative and that all prosecution witnesses gave unshaken testimony before the trial Court. To establish the offence of rape, Counsel outlined the required elements: (i) sexual intercourse with the victim; (ii) the victim not being the wife of the accused; (iii) lack of consent or recklessness as to consent; and (iv) penetration of the vaginal vault. He cited OGUNBAYO V. STATE (2007) 1 NWLR (Pt. 1035) 157 and submitted that these ingredients were present in the case. He argued that the collective testimonies of PW1 through PW4, along with the exhibits, constituted sufficient circumstantial evidence to prove the charge beyond reasonable doubt. He urged the Court to resolve Issue One in favour of the Respondent.

On Issue Two, Counsel submitted that the trial Court rightly considered all defences raised by the Appellant. He identified the defences as follows: (i) that PW2, aged 25, knew the Appellant as a neighbour and entered his bedroom voluntarily; and (ii) that the sexual intercourse was consensual. Counsel contended that these defences were untenable in the light of PW3’s investigative findings, which revealed that the Appellant expressed interest in PW2 specifically because she was a virgin. This statement, along with Exhibits B1 and B2, remained unshaken under cross-examination.

DECISION/HELD:

The appeal was dismissed.

RATIO:

CRIMINAL LAW AND PROCEDURE – OFFENCE OF RAPE: Whether mere visitation of a person to the residence of another constitute consent to sexual activity; nature of consent required

“The Appellant’s contention that PW2’s voluntary visit to his residence constituted consent to sexual intercourse is untenable in law. It is trite that consent in sexual relations must be freely given and is determined at the moment of the sexual act – not by prior conduct or presence in a particular location. The mere fact that a person visits another’s home does not imply consent to sexual activity. In OGUNBAYO V. STATE (2007) 8 NWLR (PT. 1035) 157, the Court held that consent must be unequivocal and voluntary, and any act of intimidation, coercion, or deceit vitiates such consent. Similarly, in IDI V. STATE (2017) LPELR-42587 (SC), the Supreme Court emphasized that the prosecution must prove that the sexual act occurred without the victim’s consent, and that consent obtained through fear or manipulation is no consent at all. To cap it all, Per ARIWOOLA, J.S.C in POPOOLA V. STATE (2013) LPELR-20973 (SC) (PP. 33 PARAS. A) vividly stated the position of the law as follows:

“Rape is unlawful carnal knowledge of a girl or woman without her consent, by force, fear or fraud, and it is an essential ingredient of that offence that the intercourse must be without the woman’s consent. In other words, a man will be said to have committed rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and at the time, he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it. Even when consent is obtained by force or threat or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, the offence can be committed. See Sunday Jegede v. The State (2001) 14 NWLR (pt 733) 264, (2001) 7 SC (pt 1) 122.

In view of the above, the complaint of the Appellant as regards consent is a grossly misconception of the law.” Per SENCHI, J.C.A.

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