Category: Law

Under Islamic law, iddah means “waiting period,” and it is the term of probation incumbent upon a woman as a consequence of a dissolution of marriage, either by divorce or the death of her husband. It is a well-established principle in Islamic law that after either party has obtained a judicial divorce, it becomes mandatory for the wife to observe a waiting period of three months (also known as the period of Iddah) before the final severance of the marital tie between the parties. This requirement is provided for by Almighty Allah in the Holy Quran, Chapter 65, verse 1. See Setto v. Motsibbe (2002) 6 NWLR (Pt. 762) 121.

The waiting period is three months in the case of divorce and four months and ten days in the case of the death of the husband. If the divorced woman was pregnant at the time of the divorce, her iddah ends with the birth of the child, not three months after the termination of the marriage, as established in Mayaki v. Nda (1992) LPELR-14659(CA).

It is noteworthy that during this period, the marriage is considered to be dormant but not terminated, as there is room for reconciliation between the parties. The concept of the Iddah as a post-divorce reconciliatory measure is clearly stated by Almighty Allah in the Holy Quran, Chapter 2, verse 288: “Their husbands are best entitled to take them back as their wives during this waiting period if they desire reconciliation.”

Regarding the effect of marriage on a woman observing Iddah, the Holy Quran prohibits a woman in her Iddah from remarrying during that period. As mentioned earlier, this is because, during the Iddah, the marriage is understood to be dormant but not ended, as there is room for reconciliation between the husband and wife. Since Islam forbids polyandry, a man is forbidden to marry a woman who is observing Iddah, for the law still considers her as married. Any marriage contracted within the Iddah period is therefore null and void.

In the case of Mayaki & Anor v Nda (1992) LPELR-14659(CA), the marriage between the first appellant, Aishetu Mayaki, and the respondent, Alhaji Nda, was dissolved on 28/2/1984. Subsequently, the marriage between the first appellant and the second appellant (Muhammed Ndagi) was solemnized on 3/5/1984, with a span of 64 days in between.

According to Islamic law, the Iddah period for the first respondent should be three months from 28/2/84. Consequently, the Court held that the marriage between the first and second appellants, occurring within the Iddah period of the first appellant, was void under Islamic law. This is because it was contracted during her Iddah period, rendering the marriage null and of no effect.

In conclusion, the settled principle of law, flowing from the Islamic tenet, is that every marriage contracted during the waiting period is null and void.

Thank you for reading. See you next week.

In Nigeria, the general principle of law states that English language serves as the official language for proceedings in superior courts of record. Therefore, if a party’s extra-judicial confessions or statements are uttered in a language other than English, they must be translated into English. This principle was upheld in the case of Babarinde & Ors. v. The State (2012) LPELR-CA/IL/C.18/2010, as well as in other cases like Madu v. State (1997) 1 NWLR (pt. 482) and Ogunye v. State (1999) LPELR-SC.47/1997.

While this a settled principle, this week’s article aims to explore whether a statement recorded in pidgin English requires translation to standard English for proper admissibility in court. To effectively do this,  attention is given to the 2016 supreme court case of Olanipekun v. State (2016) 13 NWLR (Pt. 1528) 100 SC.

The facts of the case: in August 2002, the appellant was charged as the 4th accused person along with three others at the High Court of Ogun State for the crimes of conspiracy and armed robbery. The robbery occurred at Ewi’s compound in Oke-Afon area, Abeokuta, Ogun State. According to the prosecution’s case, the appellant and the three other accused individuals, armed with guns and cutlasses, broke into the apartment of Evangelist Oluseye Ogunremi at around 3:30 am. During the robbery, the appellant assaulted Oluseye Ogunremi, hit him on the head with an iron, and robbed him of N800 and two mobile phones.

The arrest of the 1st accused led to the apprehension of the other three suspects, including the appellant, and the recovery of two locally made single-barrel shotguns in an uncompleted building. A police inspector, PW4, recorded a confessional statement from the appellant in pidgin English after cautioning him. The statement was confirmed by the appellant in the presence of a superior police officer and was later admitted as evidence in court (Exhibit “D”).

On the issue of whether extrajudicial statements recorded in pidgin English require translation, the court held that it doesn’t. Onnoghen JSC (as he then was) opined as follows:  “It is erroneous for anyone to assume that people who communicate in pidgin English do not understand proper or Queen’s English, especially in Nigeria. The use of pidgin English allows for free expression without minding the grammar which is usually employed in the proper English. Consequently, a statement recorded in pidgin English does not require translation into proper English and any statement made in pidgin English can be recorded in proper English. Pidgin English is English Language whether spoken or written. The distinction between pidgin English and English language is that of half a dozen and six. In the instant case,the appellant’s statement, exhibit “D”, could not be treated as secondary evidence but was treated as primary evidence.”

Furthermore, Akaahs JSC in that case held that “English is the official language of the court and it does not matter that the statement was said to have been recorded in pidgin English… The issue of fair hearing would have arisen if the appellant did not understand English at all and the statement had to be recorded in the language he speaks or understands and later translated into English”. See also Opara v. A.-G., Fed (2017) 9 NWLR (Pt. 1569) 61. 

Similarly, on Pidgin English as a species of the English language, the supreme court in a 2022 case of Taiwo v FRN (2022) 13 NWLR (Pt. 1846) 61 held that: The court is entitled to take judicial notice of the fact that Pidgin English is a specie of English language freely and commonly used in Nigeria. A person who speaks Pidgin English usually understands the English language although he may not be able to communicate effectively in the correct English language.

In conclusion, extra-judicial statements made in pidgin English are considered admissible. Such statements recorded in pidgin English do not require any further translation, and this implies that pidgin English is also recognized as a valid language in the court proceedings

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During my childhood, I used to go out to play with my friends, often returning late in the evening. On one occasion when I arrived home, I was informed that something spoiled at home. When questioned about who was responsible, I quickly exclaimed, “I wasn’t there o!” This particular incident reinforced the joy of playing outside, knowing I couldn’t be accused of being the culprit. I was so sure of myself🤭

Upon commencing my studies in criminal law at the university, I discovered that the familiar phrase from my childhood, “I wasn’t there o,” actually corresponds to a legal defense known as an “alibi.” This week’s article will delve into the fundamental aspects of this defense in criminal law.

Etymologically, the term “alibi” has its origins in Latin. It comes from the Latin phrase “alibi,” which means “elsewhere.” The term is a combination of two Latin words: “alius” (meaning “other” or “else”) and “ibi” (meaning “there”).

It’s a criminal defence which places the accused person, at the time the offence was committed, in a different place other than the place of the crime which therefore makes it impossible for the accused to be the culprit. The defence hinges on the natural principle of life that a person can’t be in two places at the same time.

Alibi is also a radical defence. It’s radical in that unlike every other defence in law where the accused admits that he commits the offence and goes on to provide an explanation to mitigate the punishment, for instance, “he killed him because he slapped him” (provocation), alibi is the only defence where the accused still maintains his position that he didn’t commit the crime at all. This radical nature of the alibi defense arises from its fundamental contradiction to the standard approach of admitting guilt while seeking to justify or lessen the severity of the act committed.

Though this defence is not statutorily provided for, that is, it is not contained in the Criminal Code nor does the Penal Code make provision for it, nevertheless it’s a defence that has gained notoriety due to a plethora of judicial decisions. See the following cases: Yanor v. State (1965) NMLR 337; Smart v State (2016) 9 NWLR (Pt. 1518) 447 SC; Ndidi v State (2007) 13 NWLR (Pt. 1052) 633 S.C etc and a recent 2023 case of State v Aliyu (2023) 6 NWLR (Pt.1881).

Moving on, it’s pertinent to state that the defence of an alibi must be raised timeously preferably during the time of arrest or interrogation as the courts frown on belated alibis. The reason why the courts have insisted that the Police must investigate an alibi given timeously by the defendant is to close all loopholes in a criminal investigation and to avoid a situation in which the wrong person is sent to the gallows as a result of mistaken identity. Ani v. State (2009) 16 NWLR (Pt.1168) 475.

And it is not just enough to say “I was not there“; the accused must go on to provide a detailed particularization of his whereabouts including the specific place he went to, the people in whose company he was and what if anything transpired at the said time and place. By providing detailed particulars, it prevents the police from embarking on wild goose chase.

In Kareem v State (2021) 17 NWLR (Pt. 1806) 503 S.C, the court held that: “An accused person must raise his Alibi at the earliest opportunity, preferably in his extra-judicial statement. He must not be allowed to use Alibi as a trump card to scuttle prosecution. This is to offer the Police an opportunity either to confirm or confute its availability to the accused person.”

As such in Oguno v State, the court rejected the defence of Alibi raised for the first time in trial and in Adeyemi v State, an alibi raised for the first time while in the witness box was also rejected.

Furthermore, it is a settled principle in the criminal justice system of Nigeria, that in all criminal trials, the burden of proof lies solely on the prosecution, which he must prove beyond reasonable doubt. Section 135 of the Evidence Act.

Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi. Yanor v State. (supra).

The law is that it is in the interest of justice that the police should investigate an alibi and failure to do such may be fatal to the case. Where an alibi is not investigated, it goes to the root of the case of the prosecution because doubt is thrown on the identity of the perpetrator of the crime who may not be the defendant in the dock. Ayan v. State (2013) 15 NWLR (Pt. 1376) 34 S.C.

However, the law also creates an exception which is that where there is positive evidence that places the accused at the screen of the crime, the failure to investigate the Alibi would not be fatal to conviction. In State v Aliyu (Supra), the court held that that “Where the prosecution is able to adduce evidence which positively fixes the accused person to the scene of the crime and which leaves no one in doubt that the accused person was at the scene at the time when the offence was committed, there will be no need to investigate the alibi, as it is logically demolished.”

Finally, the successful plea of this defence will lead to the discharge and acquittal of the accused because alibi is an exculpatory defence.

Thank you for reading❤️. See you next week🙏