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In her usual style of expressing her opinion on topical legal issues, the editor of ‘The Advocate: a well- respected legal expert – Ms Onikepo Braithwaite has shared her views on example of a regressive legal system which completely coincides with the case of Dr Femi Olaleye that is presently serving a double life imprisonment sentence for defiling his wife’s niece reported to be a minor.
Below is the excerpt from Onikepo Braithwaite’s article in the Advocate, a pull-out magazine published by This Day Newspaper.
“ X v Y: An Example of a Regressive Legal System
The other day, I was reading a judgement in the case of a Defendant (Y) who was convicted of the offence of defiling a minor, sexual assault and rape. I discovered that the ‘proof beyond reasonable doubt’ in the verdict of the court, was the usual extra-judicial confessional statement which appeared not to be validly taken from Y and was retracted by Y as soon as he was released on bail, as well as the testimony of the Victim (X) and the prosecution witnesses who never witnessed the alleged incident. By virtue of Section 135(1) of the Evidence Act 2011 (EA), the burden of proof in criminal proceedings is proof beyond reasonable doubt. It is trite law however, that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt or proof to the hilt – see the case of Udo v State (2006) LPELR-3298 (SC) per Aloma Mariam Mukhtar, JSC (later CJN). But, surely, proof beyond reasonable doubt cannot be “he said, she said” – my word against yours; if I’m a bit more dramatic, the Judge will believe me over you? I think not. Let me explain.
Firstly, in reading the judgement, I discovered that the medical report which was tendered as evidence, had no bearing on the case, as X was examined by a Doctor several months after her alleged rape. In fact, X and Y had not been in the same vicinity for months, and the medical report clearly stated that it was based on the alleged rape of X the day before the medical test was conducted. In fact, the judgement stated that the medical report did not link Y to the alleged crime. Though I’m not saying that Y or all suspects are always innocent, I doubt if Y could have been convicted on the same set of facts in USA today, where when a person alleges rape, the victim is taken to the hospital as soon as possible (preferably without cleaning themselves up), so that a rape kit is taken – extraction of semen sample of the perpetrator; examination of the body of the victim to extract third party DNA; clothes worn during the attack etc are also useful. Though in Ogunbayo v State (2007) LPELR-2323(SC) the Supreme Court held inter alia that, in a charge of rape, a Defendant can be convicted on the uncorroborated evidence of the prosecutrix; and it was also held that one of the ways to deduce corroborative evidence is by circumstantial or medical evidence, my contention is that, in this day and age, we should be relying more on medical evidence derived from the accuracy of technology, and gearing our legal system towards taking advantage of innovations that will actually provide proof beyond reasonable doubt in as many cases as possible, ensuring that justice is done, instead of wasting our time on guess work when we no longer need to do so.
Secondly, there was no shred of evidence adduced to prove that X was below the age of 18. In a case of defilement, proof of the victim’s age is crucial, as it forms the basis of the case for defilement, seeing as the Child Rights Act 2003 (CRA) provides that a child is one below the age of 18, and a child is not capable of giving consent. In the case of the defilement of a seven year old child, it would be obvious to the naked eye that such a child cannot be 18, but, in the case of defilement of a 16 year old child, it is not quite as easy to determine, as a 16 year old is probably as physically developed as an 18 year old. It is trite law that, he who alleges must prove – see Section 131(1) of the Evidence Act 2011 and Maihaja v Gaidam (2017) LPELR-42474(SC) per Ejembi Eko, JSC.
In the case of X, who the Prosecution alleged was 16-17 at the time of the alleged rape, nothing was tendered to prove her age – no birth certificate, no school report with her age on it. X simply said she was in a certain class, in a certain year. I submit that being in a class in particular year, cannot be the basis of an accurate representation of one’s age. It can only be, at best, a guide or guess as to the age a person should be. This certainly doesn’t discharge the required burden of proof.
Conclusion
My point is that, the Tinubu administration must not just resolve to move Nigeria forward, but, be seen to be doing so. This is our expectation for 2024. Nigerians want progress and development, not hardship, promises, motivational speaking and business as usual.
As for our justice sector, it also needs to move forward as well, in terms of including science and technology into our processes to meet global best practices and for better justice delivery, transparent and merit based appointment of judicial officers, and above all, an injection of sanity and stability into our legal system, so that the public confidence which has been somewhat eroded, can be restored”.
