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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.