Defilement of Under-aged Girls: What is the Verdict of the Supreme Court of Nigeria?
The above notable and profound pronouncement forms part of the ipsissima verba of my lord, the Hon. Justice Okoro, Justice of the Supreme Court of Nigeria when he delivered the leading Judgment on Friday, 30th January, 2015 in the case of BONIFACE ADONIKE v. THE STATE (2015) 7 N.W.L.R (pt 1458) 237 at 266 paragraphs B-D. The case of Boniface Adonike (Supra) once more brings to the fore the duty on sentencing authorities to show in the application of the law that society abhors cases of defilement of young girls. The law on defilement of under-aged girls in Nigeria is provided in Section 218 of the Criminal Code, Cap. 42, Laws of the Federation of Nigeria. The section provides that “any person who has unlawful carnal knowledge of a girl under the age of thirteen years is guilty of a felony, and is liable to imprisonment for life, with or without whipping”. Any person who attempts to have unlawful carnal knowledge of a girl under the age of thirteen years is guilty of a felony, and is liable to imprisonment for fourteen years, with or without whipping. A prosecution for either of the offences defined above in this section must be begun within two months after the offence is committed. A person cannot be convicted of either of the offences defined in this section upon the uncorroborated testimony of one witness.
In Akwa Ibom State, Section 219 (1) of the Criminal Code Law, Cap. 38, Laws of Akwa Ibom State, 2000 places the victim to be a girl under the age of eleven years. In Cross-River State, Section 221 (1) of the Criminal Code Law, Cap. 31, Laws of Cross River State, 2004 emphasises that the victim should be above eleven years and under thirteen years of age. In Lagos State, the crime is labelled in the Laws of Lagos State of Nigeria as defiling an under-aged girl. In Rivers State, Section 218 of the Criminal Code Law, Cap. 37, Volume II, Laws of Rivers State of Nigeria, 1999 defines the offence of defilement with reference to a girl under the age of thirteen years, and if found guilty, is liable to imprisonment for life, with or without whipping.
The more the courts interpret the above provisions of the law on defilement of under-aged girls which prescribes a penalty of life imprisonment upon conviction, the more the cases comes before the courts, and they will continue to come before the courts as long as the spirit of the world consisting of the lust of the flesh and the lust of the eyes have continually engulfed the insatiable urge of men who cannot control their will. In Genesis 39:7-12, Joseph in the Bible showed his inner strength of his ability to say no to his master’s wife overtures by running away from trouble. He was not cowardly in his action. He demonstrated that he was in control of his will. We submit that not even the devil can override or violate your will. The devil must have your permission to take over your will. Indeed, society reeks with violence, and often the weaker sex as well as other unprotected members of the society are targets; all because of uncurbed passion, to borrow the words of Achi-Kanu, J. in the case of STATE v. ANOLUE (1983) 1 NCR 85.
The essence of the law on defilement is to protect the underaged girl victim from sexual abuse and exploitation. This is because a girl under the age of thirteen or eleven as the case may be, is a child who is obviously under-aged and is therefore not capable of consenting to sex. Sadly, it appears that the general purpose of the law is being defeated by the incessant publication of news in our national dailies of the commission and frequent prosecutions in our courts of perpetrators of the crime of defilement.
In this article, we shall attempt to examine the decision of the Supreme Court of Nigeria in the offence of defilement of a girl under the age of eleven years. To put the discussion in proper perspective, it is necessary to state the facts in Boniface Adonike v. The State (Supra).
The facts reveal that on or about the 16th day of June, 2010, the Appellant invited and requested a child of 5 years of age to buy pure (sachet) water for him. The name of the child is Iwebunor Gabriel. On her return, the Appellant lured her into his room, pulled her pant and had carnal knowledge of the girl. The Appellant was arrested and charged to court in the High Court of Delta State, Issele-Uku in Charge No. HCL/10C/2010 for prosecution. At the trial, the Appellant denied the charge and pleaded not guilty to same. The prosecution called four witnesses and tendered two exhibits. The Appellant testified for himself and called no witness. Counsel for both the prosecution and defence addressed the court. At the end of the trial, the learned trial Judge, Philome Obanor, J., convicted the Appellant and sentenced him to 6 (six) years imprisonment and 6 (six) strokes of the cane.
Dissatisfied with the judgment handed down by the learned trial judge, the Appellant appealed to the Court of Appeal, Benin Division. Without much ado, the Appellant’s appeal to the Court of Appeal was equally dismissed. It was dismissed by Tom Shaibu Yakubu (now of the Enugu Division) who read the leading judgment and supported by Helen Ogunwumiju and Lokulo Sodipe, JJCA., on 15th March, 2013. Still dissatisfied, the Appellant appealed to the Supreme Court of Nigeria. In considering the appeal, the Supreme Court construed the provision of Section 218 of the Criminal Code, Cap. 48, Laws of the defunct Bendel State 1976 as applicable in Delta State. The provision of that section is in pari materia with the provision in section 218 of Cap.42 already reproduced above.
In dismissing the appeal of the Appellant, His Lordship, Justice Okoro, J.S.C., delivering the leading judgment of the Supreme Court held on pages 260 to 261, paras H-E as follows:
“Although the Appellant was tried under a repealed law, there was indeed in existence, a written law in Delta State which defined the offence of defilement in Section 218 thereof and also prescribed the punishment for it as required under section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The said 2008 Criminal Code of Delta State (Supra) has no provision for time limit within which to initiate a criminal prosecution against a person accused of the offence of defilement. There is a window of opportunity or a way of escape for an Appellant who complains that he was tried and convicted under a repealed law. The first opening is for the Appellant to show that he was misled or that his counsel was misled in the process of being tried under the repealed or non-existent law. Or that there was a miscarriage of justice arising from the trial. Unfortunately in this case, the Appellant failed woefully to show that he was so misled or that there was any miscarriage of justice.
In the circumstance of this case, and having regard to the principle enunciated in this court in the case of YABUGBE v COP (1992) 4 NWLR (pt 234) 152 and relying on section 36 (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and section 166 of the Criminal Procedure Law, Cap. C22, Laws of Delta State, 2006, I am satisfied that both the trial court and the court below were right to rely on section 218 of the Criminal Code Law, Cap. C21, Laws of Delta State, 2008 to convict and sentence the Appellant. This is so because as at 2010 when the Appellant was arraigned, tried, convicted and sentenced for the offence of defilement, there was in existence a written law to wit: the Criminal Code Law, Cap. C21, Laws of Delta State 2008 and in particular S.218 thereof which defined the said offence and prescribed punishment for it. I see no merit in this issue and I have no hesitation in resolving it against the Appellant”.
My noble Lord, the Honourable, the Chief Justice of Nigeria, Mahmud Mohammed, C.J.N who presided over the panel made these few remarkable comments on pages 267 to 268 paragraphs F-A in supporting the dismissal of the appeal:
“The question is whether the Appellant in his further appeal to this court against the concurrent findings of the two courts below, has shown any valid and strong circumstances to interfere with these concurrent findings of facts. My answer is certainly in the negative. See SHORUMO v THE STATE (2010) 12 SC (pt 1) 73 at 102; (2010) 19 NWLR (pt 1226) 73 and IGWE v THE STATE (1982) 9 SC 174. On the face of overwhelming evidence in support of the concurring findings of facts of the two lower courts and in the absence of any apparent and substantial error on the face of the record of this appeal upon which the findings are based, the said findings not being perverse and there being no miscarriage of justice or special circumstances to justify the reversal of the concurrent findings, I have no option but to uphold the judgments of the two courts below. In this respect, I have found myself in full agreement with my learned brother Okoro, J.S.C in his lead judgment which I have had the privilege of reading earlier that this appeal by the Appellant must be dismissed. Accordingly, I also dismiss the appeal and further affirm the conviction and sentence passed on the Appellant by the trial High Court and affirmed on appeal by the Court of Appeal”.
The contribution of My Lord, Muntaka-Coomassie, J.S.C in the Adonike’s Case (Supra) is far reaching and underscores the Supreme Court’s verdict on the need to protect under-age girls and indeed all females of whatever age against rapists. Hear what my Lord said of pages 283 to 284 paras. F-C:
“The Appellant, a pedophile deserved no less than to be kept out of circulation for a while, so that his pedophile instinct may cool off. He is of a dangerous specie and of low moral pedigree. The conduct of the Appellant herein is as bad as that of the Appellant in AKINDIPE v THE STATE (2012) 16 NWLR (pt 1326) 318, so I need re-echo what his Lordship, Muhammad J.S.C said at page 331, paras. E-H of the report to wit:
“The facts revealed in this appeal are sordid and can lead to a conclusion that a man can turn into a barbaric animal. When the Appellant was alleged to have committed the offence of rape, he was 32 years. His two young victims: Ogechi Kelechi, 8 years old and Chioma Kelechi, 6 years old were, by all standards, under-aged. What did the Appellant want to get out of these under-aged girls? Perhaps the Appellant forgot that by nature, children, generally are like animals. They follow anyone who offers them food. That was why the Appellant, tactfully induced the young girls with ice cream and zobo drinks in order to translate his hidden criminal intention to reality, damning the consequences. Honestly, for an adult man like the Appellant to have carnal knowledge of under-aged girls such as Appellant’s victim is very callous and animalistic. It is against the laws of all human beings and it is against God and the State. Such small (under-aged) girls and indeed all females of whatever age need to be protected against callous acts of criminal minded people of the Appellant’s class. I wish the punishment was heavier so as to serve as deterrent”.
Conclusion It is our hope that the courts will take very seriously the pronouncement of the Supreme Court (per Okoro, and Muntaka-Coomassie, JJSC) in the hearing and determination of defilement causes and matters. In a subsequent edition, we shall examine the time limit when prosecution must be begun in the offence of defilement of an under-aged girl.