R

A re-trial order should not be used as a tool to assist the prosecution that has failed to prove its case. In the instant case, having found that after a full-scale trial the respondent was unable to prove its case against the appellant, the decision of the Court of Appeal ordering a retrial would have resulted in subjecting the appellant to another harrowing experience of a second criminal trial. Furthermore, the circumstances of the case would render it oppressive to try the appellant a second time and allow the respondent an opportunity to fine-tune its case and get a ‘second bite at the cherry’.

In the offence of rape, penetration is the most vital and essential ingredient. The degree of penetration or its duration is immaterial. In this case, PW2 gave unchallenged evidence of penetration, and her evidence was corroborated by the evidence of PW1 and PW3. Therefore, the findings of the Court of Appeal that there was penetration and that the evidence of the prosecutrix was corroborated are impregnable. [Natasha v. State (2017) 18 NWLR (Pt. 1396) 38 referred to.] (Pp. 529, paras. E-H; 532, paras. A-B).