Rape is defined in most jurisdictions as sexual intercourse or other forms of sexual penetration, committed by a perpetrator against a victim without their consent, (emphasis mine).
The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent.
The definition of rape is inconsistent between governmental health organizations, law enforcements, health providers and legal profession. It varies historically and culturally.
To save the stress of venturing into other jurisdictions on issue of Rape, let us view it from the Nigerian point of view.
There are 4 specific laws that deal with Rape in Nigeria
The Criminal Code - Applicable in Southern States
The Penal Code - Application in all the Northern State
The Criminal law of Lagos- Applicable only in Lagos State.
The violence against person’s prohibition Act- This is applicable in only the FCT Abuja.

Criminal Code (CC)
Under the Criminal Code, rape is when any person has sexual intercourse with a woman or girl, without her consent, or incorrectly obtained consent. Consent can be incorrectly obtained where it is obtained by force/threat/intimidation or by means of false or fraudulent representation as to the nature of the act. It can also be by a person impersonating a married woman’s husband in order to have sex.
Under the Criminal Code (CC), sexual intercourse with an under aged girl or people with unsound mind is the offense of defilement. Technically, this means that a person could be charged for rape and defilement.

 The Penal Code (PC):
Under the P.C, Rape is when a man has sexual intercourse with a woman against her will, without her consent, or with incorrectly obtained consent. Consent can be incorrectly obtained where it is obtained:
By putting her in fear of death or hurt.
By a person impersonating a married woman’s husband in order to have sex.
Further under the P.C, sex with a girl under 14 years of age or who is of unsound mind is rape, irrespective of whether there is consent. Also, the Penal Code explicitly States that sexual intercourse by a man with his wife is not rape.
Criminal Laws of Lagos (CLL) :
Under the C.L.L, rape is when a man has sexual intercourse with a woman or girl without her consent or with incorrectly obtained consent. Consent can be incorrectly obtained where it is obtained:
By force, impersonation, threat or intimidation of any kind.
By means of false and fraudulent representation as to the nature of the act.
As with the Penal Code, the Criminal Law of Lagos State explicitly State that sexual intercourse by a man with his wife cannot be unlawful, and therefore, a man cannot rape his wife.
Note here therefore, that in all the 3 laws explained above, rape can only occur when the vagina of the woman is penetrated.
However, this does not mean that anal unlawful sexual intercourse is allowed. This is a crime and is covered under different descriptions in different legislations. The penalty for rape across all the laws is life imprisonment (however this is not a  sentence in all of them).
Violence Against Persons Prohibition Act (VAPPA):
The VAPPA defines rape as when a person intentionally penetrates the Vagina, Anus, or mouth or another person with any other parts of his/her body or anything else without consent, or with incorrectly obtained consent. Consent can be incorrectly obtained where it is obtained:
By force/threats/intimidation
By means of false and fraudulent representation as to the nature of the act,
By the use of substances capable of taking away the will of that person.
By a person impersonating a married woman’s husband in order to have sex.
As you can see, the VAPPA seems like a very progressive piece of legislation. Unfortunately, the law is only applicable in the FCT, Abuja. It does not apply in any of the other states of the Federation.
Having given the litany of definitions above, it is evident that one of the things that determine rape is lack of consent and by a party who can give the consent. One would be inclined to ask what truly constitutes consent.
Consent:
This term in this context means actively agreeing to be sexual with someone. Consent lets someone known that sex is wanted (this has to do with agreement by conduct) sexual activity without consent is rape or sexual assault.
Consent equally means voluntary acquiescence to the proposal of another, the act or result of reaching an accord; a concurrence of minds; actual willingness that an act or act or an infringement of an interest shall occur.
Consenting and asking for consent are all about setting your personal boundaries and respecting those of your partner and checking in if things are not clear. Both people must agree to sex, every single time for it to be consensual. Without consent, sexual activity (including oral sex, genital touching and vaginal or anal penetration) is sexual assault or rape.
These are thing to note about consent.
 Consent is:
Freely Given:
Consenting is a choice you make without pressure, manipulation, or under the influence of drugs or alcohol.
Reversible:
Anyone can change their mind about what they like doing, anytime. Even if you have done it before, and even if you are both naked in bed. There may be different opinions on this particular point but I align myself with this.
Informed:
You can only consent to something if you have the full story. For example, if someone says they will use a condom and they don’t there is no full consent.
Enthusiastic:
When it comes to sex, you should only do stuff you want to do, not things that you feel you are expected to do.


Specific:
Saying yes to one thing (like going to the bedroom to make out) does not mean you have said yes to others (like having sex). Other likely examples may suffice.
It will be right to say at this time that consent is never implied by things like your past behaviour, what you wear or where you go. Sexual consent is always clearly communicated. There should be no question or mystery. Silence is not consent.

There are laws about who can consent and who cannot.

The Criminal Code for instance makes it clear that:
People who are drunk, high, or passed out or threatened cannot consent to sex. The law also protects a minor from giving sexual consent.
Section 357 of the criminal Code Act
Described this offence thus:
“any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or in the case of a married woman, by personating her husbands, is guilty of an offence which is called Rape”.
In the cases where the underlined circumstances are occurring, one cannot be said to have gotten consent.

INTRODUCTION

                

Renvoi is coined from a French word ‘Renvoyer’ which means to send back. The problem of renvoi arises whenever a rule of the conflict of law refers to the ‘law of a foreign country’ but the country rule of the foreign country would have referred the question of the ‘law’ of the first country or to the law of the third country; L’affaire Forgo’s Case

Two Divergent Schools Spring up in response to controversy
First School: Internal Rules of foreign law system and nothing more
Second School: Conflict of law rules of the foreign system

THEORIES
1. Rejecting the Renvoi Theory- Hamilton v Dallas
2. Accepting the Renvoi Theory- Casadagil v Casadagil
3. Foreign court theory/Double Renvoi Theory – Collier v Rivaz




ARGUMENTS IN FAVOUR OF RENVOI
1. It is self-defeating to purport to apply a foreign law unless one applies the solution that would actually be applied by the courts of the foreign country
2. Renvoi protects the reasonable expectations of the parties
3. Resorting to total Renvoi  is to achieve uniformity  of decision of the case irrespective of the country in whose court it is brought
4. There is an argument for total Renvoi in cases concerning title to immovable property
5. It can be utilized as a convenient expedient to avoid the application of a foreign law that will lead to undesirable result
See Taczanowska v Taczanowska

ARGUMENTS AGAINST RENVOI
1. It is said to be difficult to ascertain whether the foreign system of law does or does not apply to renvoi. Re Duke Wellington 
2. It is claimed that by applying Renvoi  an English Court is surrounding to a foreign court, in that instead of applying the English choice of law rule, it is effectively applying the french or Italian choice  of law
3. A difficulty arises of the foreign court, should it be seized of the case, would apply the law of a person’s humanity. Re O’keefe
4. There is no logical reason why the process should ever stop, moreover, the English “double Renvoi” only operates at all because the courts of other countries reject it. Re Annesley. This is called Circulus inextricabilus.

PROOF OF FOREIGN LAW
Before a Nigerian Court will apply foreign law, it is necessary not only for the relevant choice of law rule to indicate that an issue in the case is to be decided by a foreign law, but also for a party to the case to plead and prove that law for foreign law is determined by the courts as a question of fact.
See Section 58 (1) (2) of the Evidence Act
If no evidence is given that the foreign law differs from the domestic law, the Nigerian Courts will assume that the are same and apply the latter, see Oganro & Ors v Ogendengbe & anor.
In Alluminium Industries Vaason v Romalpha Alluminium Ltd, a contract contained a provision to be governed by Dutch law but as neither party pleaded Dutch law Before the English Court, the case was decided according to English Law.

                 
Abstract
Everywhere in the world, security has proved to be a challenge which has attracted global and municipal attention. It is our aim in this discourse to analyse the issue of security as it relates to the Nigerian State and the ongoing debate on whether states of the federation should be allowed to establish its own police departments; the advantages or likely challenges associated with the policy; and the overall effect the idea may have on the Nigerian economy, as it shall also be our concern, as we go on in this discourse, to raise possible recommendations on the subject matter.


 INTRODUCTION
The most onerous responsibility of any Government is to ensure at all times the continuous safety of the lives and properties of people within its territory. Consequently, it became necessary, if not inevitable, for the Government of the countries of the world to establish to wit- the Army; the Air force, the Navy, the police and other paramilitary agencies that would ensure that lives and properties are secure at every material time. Nigeria as a country with all these agencies as mentioned above still falls short of ensuring that the lives and properties of her citizens are not destroyed by terrifying acts of unscrupulous members of the society.

 Since 2010 when the Ex-President, Goodluck Ebele Jonathan took over power, the issue of security became even more challenging in the country and as a result, the country was plunged into its darkest period since the civil war with diverse kinds of terror being unleashed in different parts of the country ranging from the kidnap of over two hundred girls in the Northern part of the country, to the issue of BOKO-HARAM as a terrorist group with its dominance in the Northern part of the country, the terrifying acts of the Fulani Herdsmen in Enugu state , Kano state, Kaduna state and most recently in Yobe state and indeed other parts of the country. Just recently it was also reported by the media that the BOKO-HARAM terrorist group kidnapped dozens of girls from Yobe state which is also in the northern part of the country. The list could go on and on but the point we are trying to emphasize would remain the same as the security threats the country is facing is continuously spreading its effect throughout the country.

It is important to state at this point that the kinds of threat we face as a nation are not entirely different from the terror that other countries of the world are facing but the fundamental thing to note is that they have taken a different approach towards seeking for lasting solutions to reduce the security challenges they are facing and as far as possible upgrade their security consciousness to a point where the threats would not affect their development and growth economically. It is my aim to comparatively discuss these measures as we move on in this work.

           The Nigeria Police
The Nigeria Police is an agency of the government created by an act of the National Assembly.  Section 3 of the Police Act provides as follows: 
“There shall be established for Nigeria a police force to be known as the Nigeria Police Force (in this Act referred to as "the Force").
Thus, it is the above section that creates what is known and referred to as today in Nigeria as the Nigeria Police Force and from which they derive the powers they wield and control. The Act further provides under section 4 among other things, for the duties of the Nigeria Police. Section 4 of the Act provides:
  “The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.  [1979 No. 23.”
The above section clearly outlines what the fundamental duties of the Force are and it is on this basis that the Nigerian police have seemingly conducted their affairs in the past up until now. It is worthy of note that the Act further provides under section 5 of the Act the constitution of the Force as follows:
                  “ There shall be an Inspector-General of the Nigeria Police, such number of Deputy Inspectors-General, Assistant Inspectors-General as the Nigeria Police Council considers  appropriate, a Commissioner for each State of the Federation and such ranks as may,  from time to time, be appointed by the Nigeria Police Council”.
From the foregoing provision, it is clear that due to the very important need to ensure that the Nigeria Police Force carries out its functions effectively, it provides that there shall be a commissioner of police for each state of the Federation who would of course be charged with the responsibility of ensuring that the police command in each state performs its functions diligently and effectively.

            THE STATE OF BRAZIL
The government of Brazil is notable among the countries in the world that are operating multiple law enforcement institutions. There are as a matter of fact about five different police departments established under the Brazilian constitution. These institutions operating in the country includes: The Federal Police, The Federal Highway Police, The Federal Railway Police, The state military police and Fire Brigade and The State Civil Police. Of these, the first three are affiliated to federal authorities and the other two are controlled by the government of the states. There is also the one called the “Municipal Guards” however the Guard is not considered a public security force. It is important to note also that by federal law 13,022 gave them de facto police features. According to the Supreme Federal Tribunal, the security forces considered police units by BRAZILIAN LAW  are the ones provided under the Federal Constitution.

          THE STATE INTITUTIONS
There are two types of state police: due to the nature of this paper we shall just briefly discuss the two agencies that are affiliated with the state:
The Military Police and Fire Brigade is the state police responsible with maintaining law and order. It patrols the streets and conducts searches where the situation demands it and imprisons suspects of criminal activity and goes further to hand them over to the civil police custody and in the event that the crime the individual is suspected to have committed is a federal offence, to the federal police. It is important to note that the body is not a branch of the Armed forces and it also does not perform traditional policing duties.
The civil police are the police with criminal law enforcements duties. It has the responsibility of investigating crimes committed in contravention of Brazilian law. The significant thing about this unit is that it does not patrol the streets and generally does not use uniforms.
The above briefly highlights the structure of the Brazilian police and its modus operandi. The structure which has been adopted by the Brazilians is what many jurist regard as community policing. The aim being to make sure that security is at the highest level even at all material time. We shall however, in the later pages of this work, delve into a very brief enquiry on how far this unique procedure has worked and the factors affecting it as we had mentioned in the beginning of this work.

         The United State of America
The concept of community policing as an ideal security structure has its dominance and has been widely practiced in the states of America. It is equally interesting to note that different jurists have expressed their views on what the concept actually implies. However the term community policing is a term that has not proven to have an easy definition because of its nature. This was acknowledged by Wesley Skogan when he cited (Moore, 1992) thus:
“Community policing is not a clear concept, for it involves decision-making processes and creating new cultures within police departments, rather than being a tactical plan. It is an organizational strategy that redefines the goals of policing in other to guide the future developments of departments.”
We cannot agree more with the position of Skogan that the opinion of Moore carefully depicts what community policing actually means. It remains our view that community policing is a concept that seeks to develop a relationship between the police and the public with a view to solving the common problems of the people of the community unanimously. This view was further given support by the erudite scholar professor Jack R. Green when he opined thus:
“The organizing theme of community policing suggests that law enforcement can be more focused, proactive, and community sensitive...”
This concept has been practised in different forms in the Houston, Texas, Madison, Wisconsin, Oakland, California, Baltimore, Maryland, Newark, New Jersey etc. and virtually every part of America. Different issues were used to test the practicability of the idea of community policing in different Areas of the states and in each of these states came to the conclusion that it is a more effective and  efficient system. This concept has in fact played a significant role in the response to criminal activities in the United States such as mass shootings and knife attack in the United Kingdom.



Challenges in the Nigerian System:
The Nigeria state shares some remarkable similarity with the United States where community policing is the only system that has been in place for decades. This similarity is mostly shown in the area of ethnic diversity and cultural differences. The states however equally share shown dissimilarity in the way and manner they have been able to harness the beauty of diversity that is evidenced in their day to day lives. The idea of community policing as an upgraded level of security became necessary in the United States due to the vast nature of America and its landmark. Thus, there was need for the community to be more in charge with the management of their own security. This same need is ever growing in Nigeria with the constant security issues that have risen to a surprisingly remarkable level.Nigeria indeed needs a system of security that will reform the system and provide a more suitable system that will be more responsive to the needs of the society. The police need to create a better relationship with the communities as this would encourage more participation in matters of security. Security is a public matter as much as it is an individual matter and if this is the case, it remains my humble opinion that a community that makes its indigenes more involved in security matter would achieve better security than when it is a matter that is squarely in the domain of people that are foreign to that locality.
I also hold strongly that the killings in Kaduna, Zamfara and other parts of the country would have either been averted or at least, a quicker response would have been seen, if there was a communal system of policing in those areas which would enable the states to respond to aggression without having to wait for the federal authorities to respond to every situation. This is because when the indigenes of a locality are in effective management of their own security, there is the tendency that they would be more responsive.
 It is my opinion that if there is a state police system, the nation would have upgraded its security system and consequently the issue of herdsmen attack, Boko Haram and other communal issues would reduce drastically because the communities would be more equipped to handle threats as they arise.
Amongst the advantages that the system of State sponsored policing or communal policing, whichever form one may regard it, would bring about are the provisions of jobs in the society. If this system is adopted, we would be creating over 20,000 jobs in the system. Given that the nation has been notable for the rate of unemployment its citizens suffers and its inability to do anything about it, a reform in the economy that will begin with job creation  would in more ways than one be highly accepted.


            THE IDEAL ESCAPE




The police have in many ways shown that there is need to take further steps to ensure that they are more effective in the performance of their duties as provided under section 4 of the Act. This has been made even clearer given recent events that have been unfolding in the country in recent time.
It is our humble view that the Idea of having only a federal police command that that is highly detached from the community has proved to be highly inefficient in resolving the security problems that are currently facing the nation. This inefficiency is further strengthened by the highly populated nature of the country with its vast landmark which the Intelligence unit of the Federal Police command cannot adequately cover. For there to be improvement in the security of this nation, the Police departments of Nigeria must became proactive and highly connected to the members of the communities so as to be more efficient in understanding the problems of those various communities. This is what is called problem-oriented policing according to Professor Jack R. Greene. Unless we adopt a system of policing that encourages community participation in issues relating to the security of the nation, the recurrent Herdsmen attack; Boko-Haram attacks and other acts of terror will not seize to destroy  the very fabric that still hold this nation in one piece.   In Nigeria today, there are communities which do not have a nearby police command unit that would respond quickly to security issues. Some communities do not even have police command units to ensure that the lives and properties of the inhabitants of those areas are protected equally as the ones in other places.
The argument has been that those areas are very remote which then ultimately begs the question: Should they be deprived of their fundamental right to security of human lives and properties because they are from the rural part of the country?
Indeed this question must be answered in the negative because if given an affirmative answer, it would go against the spirit of the constitution of the federal republic of Nigeria. Thus, the remote nature of these areas where these criminal acts occurs mainly has not in any way or manner taken away the guaranteed rights of the citizens that reside in those areas. We humbly submit that they, in all intents and purposes, deserve equal treatment and reserve equally the same rights as those that live in the urban areas.
  Due to these terrifying acts that are overwhelmingly increasing in our society, it has led the National Assembly to the debate as to whether there should be another police command for the states which would ultimately be referred to as “State Police”. This argument is indeed one which the writer has given much attention to and after due consideration has come to the conscious and irresistible conclusion that it is a move towards the advancement of security if it is adequately set up
Recommendation:
Whether it is called “State Police” or “Community Policing” the point we have been trying to make is that there is need for some sort of reform in the set up of security Agencies in Nigeria and it is my opinion that the reform should produce an organization that would be highly connected to the community. No matter what the nomenclature is, the idea is that more Institutions should be established that would be more connected to the States and the communities within the states. A reform like the one I am proposing along side with other jurists is of course, one that cannot be achieved without an Act of the National Assembly. Security/ Arms and Ammunition as an item in the Exclusive legislative list makes it imperative for the national assembly to be instrumental in initiating these long overdue developments in the area of security. It is also our opinion that the State police system should be introduce given the limitless opportunities that would also be created if this reform is introduced. This ranges from Job creation to increase in the welfare of the people and just the security of lives and properties. However, careful measures must be taken to ensure what their functions/limits would be, if any, so that what should be used as an advantage would not finally operate as a disadvantage especially in the hands of politicians. Even though I may not have been able to cover the field given the nature of this paper, it remains my hope that I have shed some light on what would definitely be a stepping stone in the security of this country. Regardless of our political affiliations, the security of this nation should remain a primary objective.

C.C NWAGU Esq.
Associate: Chudi Ozokolo & Associates
Email: edoziejustus@gmail.com
Tell: 08163617844

AN OVERVIEW OF FAMILY LAW IN 
NIGERIA


This work will cover key issues like: jurisdiction and, pre- and post-nuptial agreements, divorce, nullity of marriages, judicial separation and custody of children.

JURISDICTION AND CONFLICT OF LAW

Nigeria as a federation has 36 states and the Federal Capital Territory, Abuja. The breakdown of statutory marriage and other matters incidental to it are under the exclusive list of the Nigerian Constitution as amended in 2010. This therefore means that the National Assembly makes the laws regulating matrimonial causes.

The law regulating and governing marriages, marital breakdown and welfare of children in Nigeria is the Matrimonial Causes Act enacted in 1970. Again, in 1983, the Matrimonial Causes Rules were made , setting out the procedure for instituting actions for the dissolution of marriage and custody and maintenance matters incidental to dissolution of marriage.

Pursuant to the United Nations Convention on the Rights of the Child, Nigeria enacted in 2003, the Child’s Rights Act which has been adopted by 24 states including Lagos, Enugu and Rivers states. The law sets out provisions on the welfare and adoption of children. Lagos State enacted the Family law Rules in 2012 which have greatly simplified procedures on adoption, custody, guardianship and welfare of children in Lagos State.
Others laws include:
The Maintenance Orders Act
The Married Women’s Property Act 1882
The Law against Domestic Violence in Lagos State 2007
Received English Law
There are no separate family courts. The high court of the states and the Federal Capital Territory has jurisdiction to entertain matrimonial causes. It should however be noted that where an order of maintenance is ordered by the High Court, it can be enforced by a court of summary jurisdiction in a summary manner. See Section 114(1) of the Matrimonial Causes Act. Lagos State has its own family court to deal with matters of guardianship, custody and adoption but not related to matrimonial causes.

The requirement for courts to have jurisdiction to entertain divorce proceedings and relief attached thereto is “domicile” in Nigeria. Thus, a person domiciled in any state of Nigeria is deemed domiciled in Nigeria and can bring a petition for divorce in the High Court of any state in Nigeria whether or not he is domiciled in that state. The rule of forum convenience empowers the court to transfer matrimonial cases filed in a state High Court to any other state, but in the interest of justice.
In respect of joint property of the parties to the divorce proceedings, the rule of domicile also applies and the court where the divorce matter was instituted has jurisdiction. However, it is advisable to institute such matter or proceedings where the said property held jointly is situated. This will eliminate the need to register the judgment in the state where the property is situated before enforcement.

With respect to children, the court with jurisdiction over divorce proceedings has same over custody and child maintenance. This is because such jurisdiction is based on the main matrimonial cause. Thus, general rights of the child for instance, adoption, custody, guardianship and maintenance are not based on matrimonial causes and as such, domicile is not a requirement. Mere residence in the state that has adopted the Child’s Rights Act will suffice.

The terms “domicile” and “residence” are often used synonymously, however, they are different. Where domicile is the place where a person is physically present and to which that person intends to return and remain as a permanent abode, residence is the place where a person actually lives. Therefore, it means that residence requires bodily of physical presence as an inhabitant in a place while domicile requires bodily or physical presence and an intention to make the place a permanent abode. In Nigeria, the domicile of the husband determines the jurisdiction of the court but this is subject to the provision of Section 7 of the Matrimonial Causes Act which makes special provisions on the wife’s domicile thus:
In the case of a deserted wife domiciled in Nigeria either before her marriage or immediately before the desertion.
A wife, resident in Nigeria for at least three years immediately preceding at the date of bringing proceedings.

PRE- AND POST-NUPTIAL AGREEMENTS
Pre- and Post-Nuptial agreements are not common in Nigeria, thus, there is no reported Nigerian case law on them. The Court of Appeal has by implication, pronounced on the validity of such agreements in Oghoyone V Oghoyone where it held that the trial court was right in holding that the respondent had a joint interest in a property belonging to the parties because it was not referred to in their pre-nuptial agreement. Also, Section 72(2) of the Matrimonial Causes Act recognizes the rights of parties to execute such agreements but the validity or extent to which the agreement will be binding is at the discretion of the court.

DIVORCE
Divorce is the legal dissolution of marriage by a court or other competent body. In Nigeria, leave of court is required to petition for dissolution within two years of marriage except where the petition is predicated on grounds of lack of consummation, adultery, rape, sodomy and bestiality; and leave will not be granted unless the party seeking leave has suffered exceptional hardship or depravity. The court also considers the interest of the children of the marriage and possibility of settlement in determining the application for leave.  There is only one ground for divorce in Nigeria : that the marriage has broken down irretrievably. Therefore, there are facts and situations which establissh that a marriage has broken down irretrievably and they are provided in Sections 15 and 16 of the Matrimonial Causes Act. A petitioner must satisfy one or more of these facts in court. These facts are:
Lack of consummation of the marriage
Adultery and the fact that the petitioner finds it intolerable to live with the respondent.
Desertion for a continuous period of at least one year immediately preceding the filing of the petition.
The other party to the marriage has, for at least one year, failed to comply with a decree of restitution of conjugal rights.
The other party to the marriage has been absent from the petitioner for such time and in such circumstances to provide reasonable grounds for presuming that he or she is dead.
The facts above are usually known as the fault-based dissolution of marriage in that the petitioner must allege fault on the part of the respondent. There are however non-fault based dissolution of marriage where the petitioner need not allege any fault on the part of the respondent in order to secure dissolution of marriage. these facts are:
The parties have lived apart for a continuous period of at least two years immediately preceding the filing of the petition, and the respondent does not object to the dissolution of marriage. note that this fact is conjunctive that is, both facts in one must be established.
The parties have lived apart for a continuous period of at least three years immediately preceding the filing of the petition.
A petition for dissolution of marriage will not succeed if the petitioner has condoned any of the above grounds or facts that must be proved.

NULLITY
Nullity simply put means invalid; the state of nothingness. Nullity of marriage can be of a voidable marriage or of a void marriage. Section 5 of the Matrimonial Causes Act provides that marriage is voidable where:
Either party to the marriage is incapable of consummating the marriage.
Either party is: - of unsound mind; mentally defective; or subject to recurrent attacks of insanity or epilepsy.
Either party is suffering from a venereal disease in a communicable form.
The wife is pregnant by a person other than the husband.
The petition for nullity cannot be granted at the instance of the party suffering the incapacity unless the party was unaware of the incapacity at the time of the marriage. Again, with respect to the 2nd, 3rd and 4th points above, a decree of nullity will not be granted unless the following is established:
Ignorance of the fact constituting the ground on the part of the petitioner at the time of the marriage.
Petition was filed not later than 12months after the date of marriage.
Marital intercourse has not taken place with the consent of the petitioner since the petitioner discovered the fact constituting the ground.
A decree of nullity of a void marriage will be made in any of the following instances:
At the time of the marriage, either of the parties is lawfully married to another person.
The parties are within the prohibited degrees of consanguinity and affinity.
The marriage is not valid under the law of the place where the marriage takes place due to a failure to comply with the law of that place relating to the form of solemnization of marriages.
Lack of consent of either party, because: - it was obtained by duress or fraud; the party was mistaken as to identity of the other party or the nature of the ceremony; the party is mentally incapable of understanding the nature of the marriage contract.
Either party is not of marriage age (18years according to the Child Rights Act).

JUDICIAL SEPARATION
A decree of judicial separation only relieves the petitioner from the obligation to cohabit with the respondent while the decree subsists. It can be made in any of the circumstances stated with respect to grounds for dissolution of marriage. It does not affect the status, rights and obligations of the parties to the marriage. Thus, the marriage is still valid and subsisting and neither party can remarry while the decree subsists.

CUSTODY OF CHILDREN
A party seeking dissolution of marriage or other relief must state the number and age of the children and the arrangement for their maintenance, education and custody. The court can raise the issue of custody suo motu where the parties refuse to and cannot grant a decree absolute until arrangements for children are determined. The court may order joint custody or award custody to one of the parties with visitation rights for the other party and the primary consideration in awarding custody is the interest of the child. factors determining which of the parties should have custody include the emotional attachment to a particular parent, adequacy of facilities, wishes of the child, age and sex of the child, conduct of parties and so on. As a punitive measure, custody is not awarded to the offending party. However, where the mother does not suffer moral misconduct, infectious diseases, insanity, lack of reasonable means, or is not cruel to the children. Custody of children of tender age and female children is given to the mother. Custody may be sought under the Matrimonial Causes Act or the Child Rights Act. However, custody for unmarried couples is provided for only in the Child Rights Act. Where the Act has not been adopted, the customary or islamic law applies. It is at the discretion of the court to include visitation rights of the other party in a custody order and also order supervision. Child arrangement is valid till the child reaches 18 or 21 years depending on whether the order was made pursuant to Matrimonial Causes Act or Child Rights Act.


BY

C. C NWANKWO Esq

A woman stabs the husband, to death in Ikorodu Lagos alleging it was self defence.

Now, the question that comes to mind would be: Self defence which may reduce the punishment for the offence of murder to manslaughter, will it avail her in a successful plea and other defences?

Definition of Self Defence

Self-defence according to Black’s Law Dictionary, 10th Edition is the use of force to protect oneself, one’s family or one’s property from real or threatened attack.

The principle states that a person is justified in using a reasonable amount of force in self-defence where he or she reasonably believes that the danger of bodily harm is imminent and that force is necessary to avoid this danger.

Section 286 of the Criminal Code Act states:

“when a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm".

If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using the force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.

According to report, the sobbing suspect was interviewed, she said “I didn’t kill him intentionally. He was always Battering me. Today, he pinned me down and started beating me again. I picked the knife to scare him, but I mistakenly stabbed him”.

From the statement above, one would be left to wonder if the intended plea would be “accident” or “self defense” or “provocation” or if conflicting defense are intended.

In the supreme court case of Peter Iliya Azabada V. The State Legal Pedia Electronic Citation (LER 2014) Sc. 367/2011. Onuoghen JSC had this to say:

' In criminal trial, the trial court should consider all defences available to an accused person irrespective of its merits or stupidity. I hold the view that the principles does not mean that the court can uphold conflicting defences.
Where the defences raised by an accused person conflicts with one another, the trial court, in my view, though obliged to consider all the defence applicable to the case having regard to the evidence on record. Where the facts disclosed in evidence support one as against the other as in this case the court will adopt the established defence.

On the other hand, one may be inclined to think of what provocation is. This is what Rhodes  – Vivour, JSC had to say on provocation; “Any act or words may be provocative” he went further to define provocation as an act or series of acts done by the deceased (when alive) to the accused person which would cause a reasonable person, a sudden a temporary loss of self control rendering the accused person to subject to passion as to make him for the moment not master of his mind.

What then happens in a successful defence of provocation in a charge of murder?

Rhodes-Vivour, JSC went on to say: “in a charge for murder, a successful defence  of provocation has the effect of reducing the charge to Manslaughter. Once the accused person is convicted for manslaughter, the trial judge has discretion on sentence”. Sentence can be a custodial sentence ranging from one day to day life imprisonment. Whereas, for a conviction for murder, there is no discretion. The sentence is death”.

On accident

Accident means that the action leading to the injury was unintentional. Accident as a legal defence applies as long as the defendant has no criminal intent, no evil design and did not engage in any culpable negligence. But it only applies where a defendant is engaged in a lawful conduct.

To assert accident as a legal defence, the burden is on the defendant to prove that he/she acted with no criminal intent or culpable negligence.

The defence of accident is available in any case that requires intentional criminal conduct as an element.

This means that in an offence whereby an accused picks up a knife to “scare” someone and eventually stabs the victim, the accused cannot (in my opinion) rely on accident.

Now let us look at the provision of the Law Section 24 of the Criminal Code states that “a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or an event which occurs by accident”. 
The question now is “at what point will an event or an act committed be deemed accidental?

In Maiyaki V. State, the Supreme Court held as follows “An event is said to be accidental where the act by which it is caused is not done with the intention of causing it and when its occurrence is as a consequence of such act, it is not so probable that a person of ordinary prudence ought in the circumstance in which it is done, to take reasonable precautions against it.

In conclusion, when one successfully pleads accident, it only makes the act not to fall within the provisions of Section 316 of the Criminal Code. 

OKOYE BRIAN C. Esq.

THE DYNAMICS OF RESTORATIVE JUSTICE IN A CRIMINAL JUSTICE SYSTEM.

More than 6.7 million people are incarcerated in the United States. If that seems high, that’s because it is. The U.S has 25% if the world’s prison population despite having only 5% of the world’s overall population.  Because of this, policy makers, think thanks, non-profits, an
d those working in the Criminal Justice and Criminology fields are trying to find workable ways to decrease our prison population.  One possible solution is to rely more on restorative justice and less on our punitive justice.

Quintessentially, restorative justice is not a new idea. Infact, it has been a common form of justice around the world for centuries. However, it’s quite different from the punitive system most of us are familiar with. Instead of locking criminals up, a restorative justice system requires them to make amends for their crimes and change their ways onward. It’s a system that sees crime as an act of harm and not as a breaking of rules. For this reason, it views incarceration as an indirect, incomplete, and ultimately ineffective response to crime.

WORKABILITY OF RESTORATIVE JUSTICE
There is no one, universal system of restorative justice. However, the centre for Justice and reconciliation- the research and educational arm of prison fellowship international- layout a basic structure for how restorative justice should work. In a punitive system of justice, the dispute is between the accused and the state. The victim does not play active role. In a restorative system, all parties are invited to the table and included in the court’s proceedings and the justice process.

ENCOUNTERING:
When possible, and when both parties agree, the perpetrators and victim come together, discuss the crime and it’s effects, and agree on what happens next. In situations where the parties can not or will not meet, this step can be augmented or left out.

MAKING AMENDS:
Instead of being incarcerated, the convict is expected to make amends through the process of apology and restitution. The restitution can be ordered by the court or agreed to between the perpetrator and the victim.

REINTEGRATION:
Both the victim and the convict are given the assistance they need to reintegration into the community.  Mental Health, professionals, faith leaders, social workers, and/or peers form support networks designed to mitigate/ameliorate the negative effects of being a victim or help the criminal change his/ways.

BENEFITS AND DRAWBACKS
Restorative Justice is a more humane method of dealing with crime, and it opens the door to healing in a way punitive system does not. It can be effective. Studies have shown that restorative justice can lead to:
1. Substantially reduced repeat offending for some offenders.
2. Reduction in crime victims’ post -traumatic stress symptoms & related costs.
3. Both victims and offenders experiencing more satisfaction with justice
4. Reduction in crime victims’ desire for violent revenge against their offenders
5. A reduction in the costs of criminal justice
6. A reduction in recidivism

However, restorative justice dies have drawbacks. The support networks necessary for re-integration can be difficult to assemble and maintain, and few communities feel comfortable allowing certain types of criminals- such as violent offenders to re-enter the community. There is also the issue of victims who have no interest in participating in the justice system. Forcing victims to participate is not an option and yet without the victim’s participation, restorative justice loses much of its purpose. For these and other reasons, restorative justice is practiced far less than punitive justice throughout the world.

More importantly, section 15 (2) and (3) of the Criminal Law of Lagos State, 2011, empowers the courts to order compensation. Restitution, Community Service, Probation, Curfew Orders, Binding-over Orders, Rehabilitation and Correctional Orders, Victim-offender Mediation and other restorative justice measures in addition to or in lieu of any punishment which may be imposed.

Nevertheless, where Criminal Charges have not been instituted, restorative justice measures can be utilized for misdemeanour and simple offences as the law allows parties to compound and settle criminal cases that are not felonies. These cases are therefore open to restorative justice approach.

Conclusively, restorative justice system ought to be applauded and given more consideration and attention to ameliorate traumatic  effect of sentencing in Nigeria Criminal Justice System.

Gerald Ojoajogwu Ogeji Esq

SEX AND ABUSE

WHAT IS SEXUAL ABUSE?
This is an undesired sexual behavior by one person upon another, usually by force or deceit or taking advantage of that other. It is an act in which a person touches another sexually without the consent of that other.

TYPES OF SEXUAL ABUSE
-Sexual Assault
-Child sexual abuse
-Sexual assault of men and boys
-Intimate Partner sexual violence
-Incest
-Drug facilitated sexual assault
-Prisoner rape
-Multiple-perpetrator sexual assault

VICTIMS OF SEXUAL ABUSE
Generally, male and female, young and old, can be victims of sexual abuse. Sexual abuse can occur at any age and is not biased towards race, gender, religion or sexual orientation.One out of four girls and one out of six boys will be sexually assaulted before the age of eighteen (18).This makes girls (females) the major victims of sexual abuse. In a chauvinists’ world, the females are more at risk. This does not entirely mean that the guys are not sexually abused. In fact, they are, by both male and female, however, women are known as the weaker sex. Thus, while a young man can succeed in overpowering his abuser, a woman is less likely to overpower her abuser without causing serious damage.

EFFECTS OF SEXUAL ABUSE
Sexual abuse has emotional, psychological and physical effects on the victims. However, with the right help, the victims can be managed.
Pregnancy
Depression
Post-traumatic stress disorder
Self-harm
Sexually Transmitted Diseases
Eating disorder
Sleep disorder
Dissociation
Substance abuse
Suicide
Nightmares

AGE
Children aged 18 and under are legally considered to be incapable of giving consent to any form of sexual activity.

THE POSTION OF THE CHILD RIGHT ACT (2003)
S.131 of the Child Rights Act states:
(1) no person shall have sexual intercourse with a child

PUNISHMENT FOR SEXUAL INTERCOURSE WITH A CHILD
(2) a person who contravenes the provision of subsection (1) of this section commits an offence of rape and is liable on conviction to imprisonment for life
(3) where a person is charged with an offence under this section, it is immaterial that
(a) the offender believed the person to be of or above the age of eighteen year or
(b) the sexual intercourse was with the consent of the child
Section 32 states:
a person who sexually abuses or sexual exploits a child in any manner not already mentioned under this part of this Act commits an offence

PUNISHMENT FOR SEXUAL ABUSE
a person who commits an offence under subsection (1) of this section is liable on conviction to imprisonment for a term of fourteen years

ABUSE OF TRUST
Where a person older than 18 is in a ‘position of trust’, it is an offence for them to have sexual activity with a person under the age of 18. In the school setting, it applies where the child is in full-time education and the person works in the same place as the child, even if the person does not teach the child.
It also involves Teacher-Pupil relationship which infringe this law are given intense media and public focus. There is a case of Jeremy Forrester, the maths teacher from east Sussex who eloped to France in 2012 with a 15-year-old student Megan Stammers. He was charged with child abduction and sexual activity with a child and received a 5 and half year sentence. Incidents are not just limited to older male teachers with younger female pupils. In November 2014, a female chemistry teacher from a pupil school in Bedford was dismissed following a National College of Teaching conduct panel hearing, which recognize that there was a ‘clear failure to safeguard and supervise students under her care’.
Even where the parties feel they have a ‘genuine relationship’, safeguarding experts still consider it to be an abusive one, simply because it is an unbalanced power relationship and the adult is the abuser because they are abusing their power, authority and position.

REMEDIES OF SEXUAL ABUSE
Without treatment, sexual abuse can take a long-term toll on the victims. An immediate response sets the tone for the victim to be able to reach out for help and support. The following are the remedies:

1.Long term therapy
2. Trauma focused Cognitive Behavioral Therapy
3. Civil Legal Treatment

V.C Unegbu Esq. LLB (Hons), B.L