Month: March 2023

Defilement is one of the sexual offences under Nigerian Criminal Law. As a general rule, the offence of defilement is statutorily provided for under Section 218 of the Criminal Code Act. The section states that Any person who has unlawful carnal knowledge of a girl under the age of 13 years is guilty of a felony and is liable to imprisonment for life.

The Criminal Code Act is a federal statute applicable in Abuja. The act doesn’t have nationwide coverage as each state in the federation has the right to make its own criminal law. That explains why we have, for instance, the Criminal code law of Ekiti State, and the Criminal Code law of Delta state among others. The rationale is that crimes in Nigeria are generally territorial. 

This distinction is important because the victim’s age for the offence of defilement varies according to each code. For example, in Delta state, defilement is a crime committed against a girl under the age of 11 years while in Lagos State, it is under the age of 18 years. 

To succeed in a case of defilement, the prosecution must prove beyond reasonable doubt the following ingredients: 

1. that the accused had sex with the child who was under the age of 11 years;

2. that there was penetration into the vault of the vagina; and

3. that the evidence of the child must be corroborated.

The evidence for defilement is the same as in rape except that for defilement, it is immaterial whether the act was done with or without the consent of the child. A girl under the age of eleven is a child and so is not capable of consenting to sex. The court would hold that she did not consent even if she did consent. A child cannot consent to sex as held in Onwuta v. State of Lagos (2022) 18 NWLR (Pt. 1863) 701. Similarly, in Ahmed v. Nigerian Army (2016) 17 NWLR (Pt. 1540, the court held that in the offence of rape, lack of consent is material, in a case of defilement, the consent of the prosecutrix is immaterial.

In Adonike v. State (2015) 7 NWLR (Pt. 1458) 237, on or about the 16th day of June 2010, the appellant invited and requested a child of 5 years of age to buy a sachet of water for him. On her return, the appellant lured her into his room, pulled her pant, and had carnal knowledge of her. The appellant was arrested and charged to court for defilement punishable under section 218 of the Criminal Code Cap. 48 Volume 11, Laws of the defunct Bendel State 1976 as applicable in Delta State. The trial court sentenced him to six years imprisonment. The conviction was also affirmed by both the Court of Appeal and the Supreme Court.

Furthermore, when a child gives evidence and says that the accused had sex with her, the court cannot convict the accused on the uncorroborated testimony of the child alone. The evidence given by the child must be corroborated. Corroboration is independent evidence that confirms or makes more certain the testimony of the child and may be:-

(a)admission by the accused person that he committed the offence; or

(b)circumstantial evidence; and

(c)medical evidence.

In the instant case, the evidence given by the child(PW1) that the appellant forcibly had sex with her was corroborated by the evidence of PW3, the Medical Doctor, and exhibit A, the Medical Report which showed injury to the private part of the child. That, together with the positive identification of the appellant by the child (PW1) that it was he who lured her into his room and had sex with her, was conclusive that the evidence of the child was corroborated. 

However, there is a clog in the wheel of justice relating to the offence of defilement. Section 218 of the criminal code provides, among other things, that cases of defilement of a child must commence within two months from the time it was committed. As held in Gbadehan v. Kiladejo (2012) 16 NWLR (Pt. 1326) 392, any provision in any law that imposes a limitation of time upon an existing right of action has the same effect as a statute of limitation. Where a statute of limitation provides a period within which an action must be commenced, legal proceedings cannot be instituted after the expiration of the prescribed period. An action instituted after the expiration of the period stipulated in the statute of limitation is not maintainable.

So in the case under review, the appellant was alleged to have had unlawful carnal knowledge a girl of five years on or about the 16th of June, 2010. The trial of the appellant did not commence until November, 2010, clearly above the two months prescribed by the law under which the appellant was charged. 

Ordinarily, the law would have been allowed to take its course. But that was not the case here. Under section 218 of the Delta State Criminal Code Law Cap. C.21, Laws of Delta State, 2008 (under which the appellant was convicted), there is no provision for time-limit within which prosecution must commence in an offence of defilement. This is a welcome development by the Delta state government. It is suggested by this writer that the two months limitation period in the Federal Act be removed so that a pedophile would not escape punishment on the ground of technicalities.  

Thank you for reading. See you next week.

A death penalty can simply be defined as the punishment for capital offences as held in Ogwuche v. Federal Republic of Nigeria (2021) 6 NWLR (Pt. 1773) 540 SC. Under the Nigerian Criminal Law jurisprudence, the settled principle of law is that death penalty is constitutional in Nigeria as stated in Kalu v State (1998) 13 NWLR (Pt. 583) 531. 

Having laid the foundation, today’s article seeks to answer the question of whether or not a state Governor, exercising the prerogative of Mercy, can reduce a death penalty to life imprisonment and the effect of such amelioration on the Courts. 

These two related questions came up for determination in the case of Adekunle v. A.-G., Ogun State (2018) 9 NWLR (Pt. 1623) 1 SC. In that case, the appellant had earlier been charged with offence of murder, tried, convicted, and consequently sentenced to death at the Ogun State High Court. His appeal to the Court of Appeal was dismissed and the subsequent appeal to the Supreme Court was also dismissed, whereby the conviction and sentence, passed on the appellant by the trial High Court and affirmed by the court below was affirmed by this court on the 10th day of June 2006. The applicant was then awaiting execution of the judgment of the court which did not happen having spent six (6) years in detention. 

Displeased that the situation, he applied to the High Court of Ogun State for the enforcement of his fundamental rights to freedom from torture, inhumane and degrading treatment as guaranteed by Section 34 of the Constitution of the Federal Republic of Nigeria, 1999(as amended) and Articles 3,4,5,6, and 8 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation of Nigeria, 1990. In the said application, the appellant had sought some of the following reliefs:

1. a declaration that the punishment for murder is death and does not include the prolonged period in detention before the execution of the death sentence.
2. a declaration that the prolonged detention of the applicant since he was convicted and sentenced to death on 13/10/2000 awaiting execution – a period of more than 6 years constitutes another form of punishment i.e. long period of imprisonment under trauma and anguish of imminent death, for the same offence apart from the punishment of death and therefore deserving judicial remedy for the earlier sentence of death.
3. an order for the unconditional release of the applicant from prison or alternatively an order that the death sentence be converted to a term of imprisonment not exceeding 6 years including the period he was detained awaiting execution of his sentence.

Replying to the suit, the respondent – the Attorney General of the State – raised a preliminary objection and stated that the Governor of a state has the power to reduce an inmate’s punishment. He relied on Section 212 of the Constitution which enables the Governor to exercise this power. He further stated that the then Ogun State Governor, Otunba Gbenga Daniel, had exercised the prerogative of mercy and commuted the appellant’s death sentence to life imprisonment. Learned Attorney General also contended that the appellant reprehensibly failed to disclose the fact that the Governor has taken favourable action and commuted the appellant’s death sentence to life imprisonment and submitted that the whole appeal is now hypothetical, moot, and academic and should be dismissed. 

Giving the judgment, the Supreme Court held that “After an accused person has been tried and sentenced to death and his appeal is ultimately dismissed by the Supreme Court the death penalty hangs on his head until the execution is carried out…. also Where the State exercises its power to commute the death sentence to life imprisonment, there is nothing the court can do“

Similarly, in Effiom v. State  (1995) 1 NWLR (Pt. 373) 507, the Supreme Court per OGWUEGBU, J.S.C. (as he then was) at page 618, para. C: held that “… the Governor may exercise his powers of the prerogative of mercy by commuting the death sentence to that of life imprisonment under section 192 (now 212) of the Constitution.”

As a result, the effect was that the preliminary objection succeeded and the appeal was struck out became it had become academic. A suit is Academic where it is thereby theoretical, and of no practical utilitarian value to the plaintiff even if a judgment is given in his favour. Once a suit no longer has live issues for determination, such a suit is academic and a court should on no account spend judicial time or engage in Academic exercise. A.P.C. v. Enwerem (2022) 15 NWLR (Pt. 1853) 389

Thank you for reading. We welcome our Muslim readers to the Holy month of Ramadan. May all your prayers be answered. Thank you.

Termination of employment is the cessation of the contractual relationship between an employer and an employee. Generally, either the employee or employer is expected to give notice of termination. The employer can’t just wake up and terminate the employment. This is not a typical Nigerian relationship breakfast story. Employers shouldn’t move like this. 

The law is that the length of notice required for termination of employment depends on the intention of the parties as can or may be gathered from their contract; and, in the absence of any express provision, the court will always imply a term that the employment may be terminated upon reasonable notice. What is reasonable notice varies with facts of each case as held in Nwaubani v. Golden Guinea Breweries Plc (1995) 6 NWLR (Pt. 400) 184 CA. As such, in Iloabachie v. Philips (2002) 14 NWLR (Pt. 787) 264, the court held that three months’ notice given to the appellant was reasonable.

Moving on, what then is the effect where an employee accepts salary in lieu of (instead of) notice of termination of his appointment? The principle of law is that where an employee accepts salary in lieu of notice of termination of his appointment, he cannot be heard to complain later that his contract of employment was not validly and properly determined. Gbedu v. Itie (2020) 3 NWLR (Pt. 1710) 104 

Hence, in Iloabachie v. Philips (supra), three months’ salary in lieu of notice plus the appellant’s retirement benefits was paid into the appellant’s bank account. There is also evidence that the appellant has been drawing his monthly pension without any protest other than the filing of his suit within two months of the Termination of his employment. In the circumstance, the Court of Appeal held that the trial court was right when it held that the appellant had acquiesced in the termination of his employment and cannot thereafter be heard to challenge the termination of his employment because the collection of his entitlement has laid to rest any contract between the parties.

However, it is pertinent to state that the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of Termination of the contract. It is not enough that in the letter of termination, he or she offers to pay salary in lieu of notice. As an offer to pay speaks infuturo, so payment must be immediate. As such, where such salary is not offered contemporaneously with the letter of termination, the remedy of the aggrieved employee is in damages and the measure of damages is what he would be entitled to in the amount of money in lieu of notice. 

Thus in Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 at 536 ,the appellant’s appointment was terminated without notice on 18th August, 1981. That was the date salary in lieu of the notice ought to have been paid either directly to him or through his designated bank, and for which he must be informed promptly. Therefore the payment into the appellant’s bank of his salary on 25th November, 1981 was not in compliance with the contract of service and was thus void. 

Thank you for reading. See you next week.