RAPE: WHEN CONSENT IS OBTAINED BY FRAUD

The Lagos state police command has arrested the divisional police officer in charge of Onikan Mr. Adekunle Awe for alleged rape and threat to life when she was arrested and detained by some officers in the police station.

In her words, she said the DPO made sexual advances towards at her by rubbing his hand all over her body,she rejected his advances and the DPO threatened that he will make her spend the rest of her life in prison for these reason,because she was afraid of  her life and allowed him to have his way without her wish,she claimed all effort to make him protect himself proved abortive.

She was later released the following day after paying the sum of Thirty Thousand Naira to the IPO in charge of the police station,on release by the police,she felt cheated and went to the Lagos Island Maternity Clinic to do a medical test.The medical test was signed by one Dr. Seriki which read as follow:
  
A complaint of sexual assault ; no laceration,no bruises, no areas of hypermedia, negative for HIV 1 & 2,pregnancy negative,she has been placed on PEP and emergency contraceptive.

The first issue for determination is whether the DPO can be charged with the offense of rape,as no force was reported.

Section 357 of the criminal code of the Federal Republic of Nigeria states that any person who has unlawful canal knowledge of a woman,girl against her will without her consent ,where the victim's consent is obtained under fear of death or whether consent is given under intoxication or unsound mind shall be guilty of an offense of rape.

What this section of the law is saying that even where sexual intercourse is done based on a threat by one person to another even though no bruises or force occurred it is rape,therefore if the DPO had sexual intercourse with her then it will be assumed that he used his power as a person in authority to take advantage of the lady and may be guilty of rape.

The second issue for determination is whether the medical report from Lagos Island is admissible as evidence against rape.

one of the major ways of proving rape is through medical reports conducted on the victim of rape,In INEC V. ATIKU for a medical report to be admissible as evidence in a law court it must be from government hospital or from a private hospital on recommendation,therefore the evidence tendered by the victim of rape in this case is admissible in courts in Nigeria as Lagos Island Maternity  Hospital is  a Lagos State Government owned hospital.

Please note that it does not mean that medical reports from private hospitals are not admissible but the fact that its a government hospital will give it weight as it is believe that results from privately owned hospitals may be manipulated.

Thank you

Oyenike Alliyu-Adebiyi LLB(hons)BL

BRIDE PRICE IN NIGERIA

A policeman Anthony Ibere has told  the Igando customary court in  Lagos state, Nigeria that his wife Uloma should return the bride price he paid to her parent if she insists on divorce.The wife Uloma filled a petition for a dissolution on the ground that her husband is a drunkard and beats her.......culled Lazywrita's blog

The collection of bride price under the customary law in Nigeria is an essential ingredient of  a valid customary marriage in the country.They usually come in different form ranging yam, palmwine, goat, clothes e.t.c

Bride price can simply be defined as any gift in money,goods paid by the groom or his payment to the families of the bride.There is no uniformity in the collection of brideprice in Nigeria because of the difference in ethnic groups.

The issue for determination now is whether a husband or his family can successfully ask for a refund of the bride price paid to the families of his wife in a divorce case before a customary court.

IN NWANGWA V.UBANI I(1997) 10 NWLR on whether the customary law marriage betweenthe furst respondent and MR Ubani was dissolved, the appellant relied on a letter written to the first TV respondent to move out of the compound, the court held that customary law marriage between the parties were not properly dissolved as no  bride price and other expenses incurred during the marriage were not refunded inaccordance with the customary law marriage.......NIKKKI TOBI JCA

from the decision of the learned judge above, we have seen that for a valid dissolution of marriage under the native law and custom bride price earlier collected must  be refunded.

what Then is the gain of a woman that has dedicated  several years of her life to a man/home, read my write up marriage under the Act.

Thank You

Oyenike Alliyu-Adebiyi LLB(hons) BL

CORPORATE PERSONALITY

Having discussed registration of company, it is also important to educate on the effect of registration of company, the advantages as this is unknown to many.

The first effect of registration is that the company becomes a legal person separate and distinct from its members, whom is capable of suing and being sued, this is called the Independent corporate existence. A company becomes a corporate body with perpetual succession and a common seal, it also becomes a separate legal person distinct from the members, who formed it and is capable of acquiring, holding and alienating property.

This independent corporate existence was emphasized in the famous case of SALOMON V. SALOMON

A company which has complied with the requirements relating to the incorporation
of companies contained in the Companies Acts is a legal entity separate and
distinct from the individual members of the company. It matters not that all the
shares in the company are held by one person, excepting one share each held by
the persons who, as required by the Acts, have subscribed their names to the
memorandum of association to enable the company legally to be formed, nor does
it matter that those persons are merely the nominees of the principal
shareholder. Once a company has been legally incorporated it must be treated
like any other independent person with rights and liabilities appropriate to
itself, and the motives of those who promote the company (eg, to enable them to
trade with the benefit of limited liability) are absolutely irrelevant in
discussing what those rights and liabilities are. A company is not the agent of
the shareholders to carry on their business neither for them, nor in it the trustee for
them of their property.

Also where the legal personality is called to question and issue is jointly thereon, the certificate of incorporation should be produced as it the only by that certificate that the legal personality can be proved in such circumstances.

To every general rule in law there is an exception,where there is evidence of direct fraud by members of the corporate entity the independent corporate entity may be set aside in some instances, thereby leading to the veil of incorporation being lifted In CHINWO V. OWHONDA the court observed that allegation of crime lifts the veil of corporate and opens up the body to judicial enquiry upon good and substantial fact placed before a court of competent jurisdiction.

Also veil may be lifted where a director of a company knows that company carried on business after the numbers of director has fallen below two or more than 60 days such director shall be liable for the period during which they carried on business.

Thank you.

Oyenike Alliyu-Adebiyi LLB(hons)BL

JUVENILE COURT: CHILD MARRIAGE

A fourteen years old bride, Waila Umaru, has allegedly poisoned her Thirty Five years old groom and three others in Kano State, Nigeria. She was said to have bought rat poison which was mixed with drink, the groom took the drink after taking his meal, and this led to his death and some of his guests. The suspect confessed to the crime claiming that she did it because she was forced to marry a man she didn’t love....................culled.

From the above scenario we shall analyse the legal aspect

i.                     Whether the 14 years old bride is of marriage able age: The marriageable age in Nigeria by virtue of the Child’s Right Act, 2003 is age 18years,the International convention has also established 18 years as the legal age of consent to marriage.

ii.                   Consent in marriage: the consent of either parties to marriage is very important and this consent must not be obtained by fraud, this consent is also not transferrable to a third party i.e. parent of the bride/groom as marriage is described as a union between man and woman to the exclusion of all others, and it is important they choose whoever they desire.

iii.                  Whether the 14 years old is liable for the offence she confessed to: The general rule is that stay away from crime every person shall be liable for an offence willingly committed, the fact that she was denied the right to choose her groom herself is not enough ground to commit a capital offence. There is no excuse for committing crime.

iv.                 Whether a juvenile can be imprisoned: the juvenile court is established under the Children and Young Persons Laws of various states of the federation. They have jurisdiction to try all offenders who are young persons. Young offenders are persons under the age of 18years.for criminal offences children below the age of 7 years are not criminally liable; children between 7 and 12 years are only criminally liable for the offence committed if they are found to know the implication of the offence committed. Children between age 12 and 14years are criminally liable for an act an omission which constitutes an offence.

Please note by virtue of section 8(2) of the Children and Young Person Law, the trial of a young person by the juvenile court where the penalty for the offence is death is prohibited by the CYPL

These are the features of a juvenile court; these courts are not open to the general public except officers of the court, parties to the proceedings, their legal representatives, and accredited members of the press. It also prohibits the publication and disclosure of the identity of the child.

A juvenile if found guilty cannot be  sentenced or convicted instead a ‘finding of guilty’ shall be recorded and shall not be imprisoned they are suitably dealt with in any other authorized manner such as recognizance of good behaviour, probation, fine, or committed to an appropriate institution or remand home.

HEALTH RISK: sexually transmitted infections and cervical cancer, isolation and depression, risk during pregnancy, labour and delivery, untimely death among others.

Finally, this recent development in Kano state should deter parents from forcing a spouse on their children, they should be allowed to make a choice of their own, and this will not only make them happy but will make them perform their duties in their homes.

I say NO to child marriage, what about you?

Thank you.

Oyenike Alliyu-Adebiyi LLB(hons)BL

 

CONSUMER PROTECTION

I have always wanted to discuss this topic on this information portal but it has been one distraction or the other, but hardly will a day pass without remembering because of what people has turned themselves into in the name of trying to be fair in complexion, i see both men and women looking like chameleons as a result of their uneven skin and i ask myself,God didn’t create some people this way and another thing tells me it is the work of bleaching creams. Hmmmmmmmmmmmmm

I  came across Dr Miracle’s page on facebook, some people (Nigerians) trying to confirm the authenticity of some of their products mostly ‘Lotions’ ’’Body creams’ as they were known before now for making hair products, to my greatest surprise Dr Miracle denied ever producing any skin care product other than one Acne treatment. So who is responsible for the production of the so called *Dr Miracle cream in our markets, they are mostly found in respected stores in the country. Naija i hail thee!!!

For those who are hearing Dr Miracle for the first time, this is an American company, a leader in ethnic personal care industry that has your prescription for style with treatment centred products for healthy hair and scalp.

Consumer protection is the liability of not only the manufacturer of goods and services but also that of retailers, wholesalers, distributors and other suppliers of goods and services to persons who use or consume them. For those of us with supermarkets please note that engaging in transactions which involves unregistered regulated products is an act which is not only unlawful but also inimical to public health and may lead to term of imprisonment.

Any person convicted for an offence of sale of fake/expired products will forfeit to the federal government any assets or property derived or obtained directly or indirectly.

The establishment of the National Agency for Food and Drugs Administration and Control (NAFDAC) is an expression of government desire to ensure well being of generality of the society of Nigeria, so i hereby implore the relevant authorities to put them on check as this act endangers people’s lives.

Section 12 of the Nigerian counterfeit and fake drugs (miscellaneous provisions)Act define counterfeit/fake drugs as any drug or drug products which is not what it purports to be.

If you must be brighter than your future then take note of certain thing.

*cosmetics products which shelf life is less than 30 months must be marked ‘BEST BEFORE’ date according to the common regulations in most countries, Nigeria is not left out.

*Expiration date is the final day that the manufacturer guarantees full potency and safety of a particular product.

*Do not use creams with Acrylamide studies suggest it may cause breast tumour

*Avoid creams with alcohol such as ethanol, methanol, benzyl, liquid paraffin, padimate (found mostly in sunscreen),Tolulene, Triclosan and many more.

*There are no expiry date or manufacture date on most American products such as deodorants and cold creams i.e. Nivea, Dr Miracle, the experts advised that American cosmetic products can be used for as long as it is kept in a cool dry place.

 

Thank you.

Oyenike Alliyu-Adebiyi LLB(hons)BL

INDECENT ASSAULT: MAN & MAN

Mr Sali Malu a 38 years old gatekeeper who lives at 31, Peace Estate,Ipaja lagos is facing a two count charge of sexual assault and breach of peace at Abule Egba Magistrate court, he was said to have drugged another man whose name was not disclosed after giving him food to eat, when he woke up his anus was paining him and saw some left over semen in it........................culled from News Agency of Nigeria

 Rape this is the unlawful compelling of another person with force to have sexual intercourse without the person’s consent.

Section 357 of the Criminal Code Act, cap 77 1990 define rape as an unlawful carnal knowledge of a woman or girl without her consent, or with her consent if the consent is obtained by means of false threat or intimidation of any kind, or by fear of harm or by means of false or fraudulent representation as to the nature of the act, or in case of a married woman by impersonating her husband is guilty of an offence of rape.

The penal code ‘A man can be held guilty of rape if he has sexual intercourse with a woman without her consent, or where the consent is obtained through fraud.

From the above provision of the Criminal code (south) and Penal code (North) an offence of rape is a criminal wrong against a woman by a man because the offense of rape will be complete upon penetration and this can be achieved between a man and a woman a man penetrating his sexual organ against that of a woman, because the law believe a man is not capable of penetrating another man (i am sure the draftsman didn’t bear in mind that some people are gay)

The fact that the law doesn’t recognise a man capable of raping another man does not mean that if the accuse is found guilty, the judge will give an honourable hand shake and release him simply because a man cannot rape another man, if found guilty of this offence the law has made adequate provision for such offence which is sexual assault, this is like a baby sister to the offence of rape.

Section 166(d) of the Lagos Administration of Criminal Justice 2011 provide that any trial of rape or defilement of a girl under the age of 13years the facts proved in evidence authorized a conviction under 358 of the criminal code or for an offence wherein the accused is charged, he may be convicted of an offence under section 358 of the criminal code or of indecent assault, as the case maybe on a charge of an information charging him with such an offense of indecent assault.

Indecent assault is an offence punishable with a term of imprisonment if found guilty.

 

Thank you.

 

Oyenike Alliyu-Adebiyi LLB(hons)BL

 

 

 

CONSUMATION IN MARRIAGE

‘After the no sex/fornication thing in a relationship and you see this(small blokos) on your wedding night, especially when the man was successful in hiding this sad truth under the pretence of religion...............culled from Stella Dimoko’s blog.

Law made adequate provision for everything including this...lol.

THUGERY: BAR. ADEMORIN KUYE

The attitude of Lagos state commissioner for Local Government and Chieftaincy Affairs Bar.Ademorin Kuye, at an All Progressive Congress political meeting held at Somolu Local Government Banquet Hall on 5^th of march,2014 where he descended on a fellow politician  Hon Olugbenga Hakeem Abdullahi a 57 years old man as was trying to caution his rationale for moving a motion for the imposition of a candidate on the members as this move is contrary to the code conduct of the All Progressive Party.

This attitude of the honourable commissioner is so unbecoming of a legal practitioner, a public office holder and a man with a post graduate diploma in Theology of the Redeemed Christian Church of God and above all a member of the All Progressive party, a party that will not leave any stone unturned when comes to opposition party displaying any act of thurgery, unfortunately he has dragged the name of APC in the mud.

Political party or not, there is a code of conduct prescribed under the fifth schedule of the 1999 constitution of the Federal Republic of Nigeria for public office holder, commissioners of the government of the states are not left out Section 9 of fifth Schedule states that a public officer shall not do or direct to be done, in abuse of his office, any arbitrary act prejudicial to the rights of any other person knowing that such act is unlawful.

From the above quoted section of the constitution it is obvious that Bar. Kuye has acted in contrary to the provision of code of conduct of public office holder, we hereby call on the acting publicity secretary of the Alliance Progressive Party Alhaji Lai Muhammed to put its house in order by bringing this man to book so that it will serve as deterrent to others, the change we desire starts with us.

It was also gathered that this has been the only way the honourable commissioner adoptes in addressing issues as he has previously beaten a former party colleague into a state of coma Late Tunde Babalola and several other cases of kuye invading political meetings with thugs abound within his constituency.

All relevant authorities like Panti state CID,Alade police station where the  matter was said to have been reported should act accordingly, in the interest of justice and fair play. Eko oni Baje oooo

Thank you

Oyenike Alliyu-Adebiyi LLB(hons)BL

AIR PASSENGERS RIGHTS -IATA

I watched a video on Stella Dimoko’s blog on how passengers flying ARIK from Lagos to New York were locked inside the hot plane and did not take off, it was gathered that the plane was so hot that parents had to strip their children half naked so as to prevent them from suffocating.

The first question that came to my mind was if air passengers have any right recognised under law because we never can tell who the next victim would be.

The Trade Association of all airline around the world with over 240 members and about 84% of total air traffic is IATA International Air Transport Association, these body is responsible for code of conduct that guide the airline operators in which Arik is one.

At the 69th Annual General meeting of IATA a bill was passed as consumer's right and has since came into force.These rights are......

passenger rights legislation should allow airlines the ability to differentiate themselves through individual customer service offerings, thereby giving consumers the freedom to choose an airline that corresponds with their desired price and service standards.

Governments should consider acknowledging voluntary industry commitments; government regulations should form the “lowest common denominator” and market forces should be allowed to determine additional standards of service levels. 

Passengers should have access to information  on their legal and contractual rights and clear guidance on which regime applies in their specific situation;

Passengers should have clear, transparent access to the following information: o  fare information, including taxes and charges, prior to purchasing a ticket; o  The airline actually operating the flight in case of a codeshare service;

 Airlines should employ their best efforts to keep passengers regularly informed in the event of a service disruption; 

Airlines will establish and maintain efficient complaint handling procedures that are clearly communicated to passengers;

 Airlines should assist passengers with reduced mobility in a manner compatible with the relevant safety regulations and operational considerations;

 Passenger entitlements enshrined in regulations should reflect the principle of proportionality and the impact of extraordinary circumstances; o There should be no compromise between safety and passenger rights protection  Safety-related delays or cancellations, such as those resulting from technical issues with an aircraft,  should always be considered as extraordinary circumstances such as to exonerate air carriers from liability for such delays and cancellations; o The industry recognizes the right to re-routing, refunds or compensation in cases of denied boarding and cancellations, where circumstances are within the carrier’s control;   The industry recognizes the right to re-routing, refunds or care and assistance to passengers affected by delays where circumstances are within the carrier’s control; o In cases where delays or disruptions are outside an airline’s control, governments should allow market forces to determine the care and assistance available to passengers; o The responsibilities imposed by the regulator, related to both care and assistance as well as compensation, must be fairly and clearly allocated between the different service providers involved and should not impact on the contractual freedom of all service providers.   Passengers should be treated comparably across transport modes, taking into account the particularities of each;Legislation should be clear and unambiguous

Thank you.

Oyenike Alliyu-Adebiyi LLB(hons)BL

MEDICAL NEGLIGENCE: NEED TO END IT

Medicine as a noble profession is accorded so much respect in the society, professionals in this profession are seen as the messiah after God when it comes to health issues because we expect a high level of duty of care and skill from them as they are trained for these purpose but what happens when the last resort for people suffering from one ailment or the other are faced with the problem of been treated by doctors in view which often times result in loss of lives.

This write up on medical doctors in most hospitals in Nigeria is not malicious neither it is to ridicule those doctors who have dedicated so many years into saving lives in these country but i am writing based on experience of people very close to me who have lost their lives because of the negligence of the doctors assigned to them and i think this must STOP

I am not a medical doctor but i believe the need to have medical history of each patient before administering drug on patient is highly important as failure to do these often times results into loss of lives, relevant authorities have been written in these regard as they are government hospitals ,we hope they improve and be more detailed because i am personally not interested in getting a doctors practise certificate withdrawn but the need to be more detailed because it is a constitutional right of every Nigerian to live. No one deserves to die before his/her appointed time because of someone’s mistake.

We don’t have money, yet we deserve to live, so how do we tackle medical negligence in our society? What is medical negligence? Rules and regulation guiding medical practise in Nigeria

Medical negligence is defined as a direct legal action taken by a patient who falls victim to the negligent act of a medical practitioner, this can be on what the medical practitioner did and what he failed to do when he was expected to act. As we all know there is code of conduct for every profession and medical profession is not left out and they are expected to adhere strictly by these codes of conduct. A medical doctor is to provide the patient with suitable support and medical attention required and must be done in the best interest of the patient to treat, diagnosis the individual ,failure to do this at the appropriate time will result into medical negligence which is actionable per se.

There are plethora of decided cases in Nigeria, in the supreme court case of CAPTAIN C.T OLOWU V. THE NIGERIA NAVY in this case one Mrs Joy Bassey ,an obstetric patient who registered with the military hospital for antenatal went into labour ,on getting to the hospital she met the nurses, the plaintiff in these case a doctor was informed when he resumed duty of the patient’s health but paid little or no attention to it until it deteriorate the next morning after she has bleed for several hours, he then referred her to military hospital Yaba, where she was operated on. She lost the baby and it was also confirmed that she will not be able to have any child again as the negligent act of the doctor to treat her on time caused these. The doctor was found guilty of medical negligence from court martial to the Supreme Court. He was relieved of his duty as a medical doctor,

Nigeria medical and dental council is the body that regulate code of conduct of medical practitioners in Nigeria, if truly you want a change report all issues of medical negligent to them.

Thank you.

 

Oyenike Alliyu-Adebiyi LLB(hon)BL

CONCEPT OF FAIR HEARING

The administration of justice system in Nigeria is so faulty that an accused person is often times seen as been guilty even before the pronouncement of judgement by court of competent jurisdiction. This is not unknown in our society, accused person(s) are most times denied access to lawyers, given fair hearing, informed of the crime committed to mention a few.

We shall be discussing the rights of an accused person(s) in criminal trial and what the law considers to be fair hearing under the constitution.

Section 36(5) of the CFRN every person is presumed innocent until he is proved guilty, provided that anything in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.

Right to fair hearing: section 36(1) of the 1999 constitution states that a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality, this principle of fair hearing is based on the latin maxim or audi autarem patem, that is, the other party must be heard and nemo judex in causa sua meaning that a person shall not be a judge in his own case.

Information of the crime committed: it is a constitutional right of an accused person to be adequately informed of the crime committed and this must be done in the language the person understands, where the person does not understand the language of law which is English, an interpreter must be considered, this was the decision of the court in MAJA V. STATE (1980)1 NCR

Time and facility: any person who is in charge with a criminal offence shall be given adequate time and facilities for the preparation of his defence, the court shall grant the accused time to prepare his defence or call witnesses. UDO V. STATE

Right of defence: section 36(c) every person who is charged with criminal offence shall be entitled to defend himself in person or by legal practitioner of his choice Awolowo v. Usman sarki

Offence must be known to law: a person shall not be convicted of an offence that is unknown to law, offence must be defined and the penalty therefore is prescribed in a written law e.g an act of the national Assembly or state.

Right to silence: section 36(11) an accused person may decide not to say anything and such an accused shall not be compelled to give evidence at his trial. Section 160 (b)(c) protects the right of an accused in this regard.

Publicity of trial: an accused person in criminal trial shall unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by a court or tribunal but where the accused person is a juvenile ,the court or tribunal may exclude from its proceedings in the interest of defence, public safety, public

Thank you

 

Oyenike Alliyu-Adebiyi LLB(hons)BL

RIGHT OF PEACEFUL ASSEMBLY AND ASSOCIATION

 

House officers at the Nnamdi Azikwe University,Nnwei Anambra state, Eastern part of  Nigeria are being threatened by the school authority over joining association of resident doctors in  the state who are currently on strike ,they were given 24 hours to rescind their decision to join the Association or risk withdrawal of their internship programme............culled from Linda Ikeji’s blog

This takes us the Nigeria’s constitution 1999 that serves as an authority/guide to the citizens of Nigeria and which its preamble states that WE THE PEOPLE of the federal republic of Nigeria having firmly resolve.............and for a constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people. DO HEREBY make for ourselves the following constitution.

Chapter four of the constitution provide generally the fundamental right of all citizen of the country which should not for any reason be breached, section 40 of the 1999 constitution provides that

Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest.

The above quoted section made provision and grant citizens the power to form or join any association so i wonder where the authority got the power to prevent them from joining the association forcefully when the law is so clear on this.

Fundamental right is a right of citizens of Nigeria and this can be enforced in the law court if violated, Section 46 of the constitution vests this power on the high court of the state in which the breach occurred.

Section 46(1)CFRN any person who alleges that any of the provisions of this chapter(iv) has been, or is likely to be contravened in any state in relation to him may apply to a high court in that state for redress.

Lord Denning said ‘God forbid a law without an exception’ so the exception to this general provision of the constitution Section 45(1) Nothing in section 37,38,39,40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society-

(a)    In the interest of defence ,public safety, public order, public morality or public health ; or

(b)   For the purpose of protecting the rights and freedom of other persons.

The house officers decision to join the association was because of an unaccountable deduction in salary and good working condition believing ARD would protect their interests,so if these is the reason then they have not contravened the provision of section 45(1) of the constitution.

We humbly urge the authorities of this institution to desist from these empty treat in the interest of justice and fair play.

Thank you.

 

Oyenike Alliyu-Adebiyi LLB(hons)BL