Dissecting the High Court ruling on Busola Dakolo’s rape suit

Dissecting the High Court ruling on Busola Dakolo's rape suit

The High Court of the Federal Capital Territory, sitting at Bwari on Thursday dismissed the rape suit filed against the senior pastor of the Commonwealth of Zion Assembly (COZA), Pastor Biodun Fatoyinbo by Busola Dakolo.

The suit filed by Mrs Dakolo was dismissed on the ground that it amounts to injustice and an abuse of judicial process. Justice Othman A. Musa, while handing down his ruling said the case was aimed more at cruelty than obtaining justice. He further said the fine should have been 10 times more because the court’s time was wasted.

A cost of N1,000,000 was awarded against Busola Dakolo. Recall that the celebrity photographer had accused the founder of COZA of raping her in 1999 when she was still a teenager. She gave a vivid description of how the clergy raped her in her house. 

In her suit, Dakolo prayed that the court declares that the pastor’s denial of his alleged acts contained jointly and/or severally through a press statement he released on June 28, 2019, had caused her continuous emotional distress and amounted to intentional infliction of emotional distress on her. She further told the court that the rape had adversely affected her marital sex life and demanded an apology from Pastor Biodun Fatoyinbo. 

Fatoyinbo, through his lawyer, Dr Alex Iziyon SAN, filed a preliminary objection, arguing that Dakolo’s suit was frivolous and statute-barred and that the reliefs sought by Dakolo against Fatoyinbo in the suit with the suit no: CV/2817/18 were not grantable. 

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However, Mrs Dakolo has vowed to appeal the decision of the High Court.

As always with very serious issues like rape, people are expected to react and share their views. It is therefore not surprising that many have expressed their opinions on the ruling of the High Court of the Federal Capital Territory. Emotions have trailed the case ever since Dakolo made the chilling revelation months ago. But do we really view rape through the lens of emotions and subjectivity, knowing fully well that it is a very serious crime in which either party to an allegation can be adversely affected by our biased opinions? 

Rape is a heinous crime which should be condemned by all. The perpetrators do not deserve a place in any society. Good enough, the punishment for Rape in most jurisdictions in Nigeria, if not all is Life Imprisonment (a convict may be given less sentence in some cases).

Though a rape case can be brought before the court at any time, it is advised a victim reports it immediately it happens, for the sake of preserving evidence. Evidence is very essential in criminal trials. In fact, any crime is required to be proven beyond reasonable doubt in Nigeria, and the onus lies on the prosecutor to do so. The prosecutor can only meet this constitutional requirement by adducing enough evidence to support his case. Oh, by the way, we do not have to concern ourselves with the onus of proof in criminal trials since Dakolo’s suit is a civil one.

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Some people have heavily criticised Mrs Dakolo for pursuing a civil case against her alleged rapist when she should be all about the cleric being jailed for life. This brings us to the legal question, ‘was it proper for Dakolo to have instituted a civil suit against Fatoyinbo when the later has not been criminally prosecuted?’ 

There used to be a Common law rule called the rule in Smith vs Selwyn. The rule says that a felony cannot be made the foundation of a civil action at the suit of the person injured against the person who inflicted the injuries until the latter has been prosecuted or a reasonable excuse is shown for his non-prosecution. To break it down, it simply means that if a criminal act amounts to a felony, it cannot be made the foundation of a civil case until the alleged offender has been duly prosecuted or a reasonable excuse shown for his non-prosecution. This begs the question,  ‘What is a felony?’ Well, a felony is any crime that carries a minimum sentence of 3 years and a maximum sentence of death. Thus, since the sentence for rape is life imprisonment, rape falls in the category of a felony. 

Read: Campaigners demand arrest of Nigerian pastor accused of rape, set for court

However, the above-mentioned common law rule was abrogated in the celebrated case of Alamieyeseigha v. F.R.N. (2006) 16 NWLR (Pt.1004) pg.1 where the Court of Appeal held that it was a ‘clog in or to the wheel of the administration of justice’. Ever since, the rule has been continued to be inapplicable in the country. 

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So from a legal standpoint, Mrs Dakolo’s choice to institute a civil suit against Fatoyinbo was very much in place though may not seem to have been the best option. However, since it is a civil action, her case faces a very serious legal challenge – the doctrine of laches. The doctrine which literally translates ‘you are out of time’ is based on the maxim, “equity aids the vigilant and not those who slumber on their rights”. Also, limitation laws in Nigeria affect different classes of actions. Dakolo’s suit falls under tort. The limitation window for tortuous actions is 6 years, except for Negligence, Damages, Breach of duties and Nuisance which is 3 years. The window counts from the time a cause of action arises and when a suit is filed.

My ink shall temporarily stop flowing at this juncture since Dakolo has made her intention to appeal the ruling, known. In the end, let justice prevail against injustice.

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