pg 140
Appeal Court, 6th Nov., 1941.
Charge
of Indecent Assault, contra.
section 360 of the Criminal
Code-On appeal from Magistrate
to High Court convioction for
indecent assault on wife-Verdict
of guilty of common assault
substituted.
On appeal the Judge upheld a
conviction of the accused in the
Magistrate's Court for indecent
assault on his wife after
amending an obvious clerical
error in the statement of
offence under section 172 (1) of
Chapter 20: it was proved that
the appellant had shaved the
pubic hairs of the complainant
whom he had married in
accordance with native law and
custom.
Held: That the assault as
between husband and wife could
Dot properly be characterised as
indecent and a verdict of
assault contra. 'section 351 of
the Criminal Code was
substituted.
Sir William Geary
for' Appellant. Respondent in
person.
The following joint judgment was
delivered:-
BUTLER LLOYD, ACTING C.J., BROOK
AND JEFFREYS, JJ.
The appellant in this case was
tried before the Magistrate of
Ijebu-Ode on counts charging
offences against sections 360
and 353 of the Criminal Code but
by an obvious clerical error the
statement of offence in each
count was worded" Grievous Harm"
which is appropriate to the
latter only. In the first, as is
obvious from the particulars of
offence, it should have been
"Indecent Assault.' ,
There was another count of
larceny with which we are not
concerned. The Magistrate
convicted appellant on the count
contra. section 360 only.
On appeal to the High Court the
learned Judge upheld the
conviction but amended the
statement of offence to read "
Indecent Assault on a female"
under section 172 (1) of Chapter
21 as we think h~ had power to
do. pg141
The facts proved were that
appellant shaved the pubic hairs
of the complainant whom he had
married in accordance with
Native law and custom and the
only point which falls for our
decision is whether a conviction
of a man for indecent assault on
his wife can stand.
Appellant's counsel has argued
that it cannot on the ground
that a man cannot be convicted
of rape upon his wife and that
the greater includes the less.
While not agreeing that this
argument is conclusive or even.
logical, since a man can
undoubtedly be convicted as an
accessory to a rape on his wife
and presumably also to an
indecent assault upon her, and
indecent assault is not as the
argument seems to assume a
lesser form of rape, we think
that there is this much in it
that an assault upon a wife is
not rendered indecent by
circumstances which would render
it indecent in the case of
another woman.
In the present case the
appellant undoubtedly committed
an assault the enormity of which
a very slight acquaintance with
native ideas will suffice to
make apparent, but we do not
think that as between husband
and wife it could properly be
charaeterised as indecent. It
is, however, clear that the
Magistrate could have found the
appellant guilty of a common
assault contra. sec. 351 under
the provisions of section 58 (1)
Chapter 20, and we accordingly,
in exercise of our power under
section 11 (2) of the West
African Court of Appeal.
Ordinance substitute fol' the
verdict of guilty of indecent
assault contra. sec. 360 a
verdict of guilty of assault
contra. section 351 of the
Criminal Code and pass sentence
of six weeks imprisonment with
hard labour.
