October 22, 2018 By: Cedric Clancy

‘’The Increase in the rate of defilement cases in Nigeria today calls for a rapid response to curtail same and to save the future  of our nation which lies in the hands of the younger generation. Our numerous legislations must be set in motion across the country in order to protect our children and more so bring defilement perpetrators to book, in order to deter other people from engaging in such high level wickedness’’.
The Blacks law dictionary 10th edition defines ‘’defilement’’ as an act of defiling, condition of being defiled. The word defile is also described to mean dirty, to physically soil, to morally corrupt someone, to deprive a person of chastity, to desecrate, to make less pure and good especially by showing disrespect, to dishonor, etc.
Defilement in the form of sexual abuse is now prevalent even though most of the cases are underreported and not brought to public knowledge. And for the purpose of this article, defilement would be used to describe sexual abuse.
Defilement involves an unlawful sexual intercourse with a person below the age of eighteen (18) years of age with or without their consent. It is a form of abuse which Includes inappropriate, coerced or forced sexual activity, touching, exploitation, misconduct or sexual assault involving a child.

It is important to note that the girl child is more susceptible to defilement than the male child even though none of them deserves it. The perpetrators of this crime range from the child’s blood relatives, maids, drivers, neighbors, parents, teachers, and other people they come in contact with in the society at large.
These perpetrators use the trick of threat to silence their victims thereby making it impossible for these victims to disclose their ordeals to their parents or guardians, teachers and friends or the appropriate authority and as a result, their ordeals become incessant. This, I must say, affects the statistics for this crime with many cases staying off the records.
It is sad to state, that everyday these defilement cases are reported in our dailies with the victims and the suspect recounting these horrendous experiences which leaves sad memories in the minds of both the readers, victims and their families. These cases, most times, are charged to court while some others are settled at the police station which ought not to be.
I know that there have been some concerted efforts both at the international, regional and domestic levels to protect and preserve the rights of children because they are particularly susceptible to being exploited, deceived, cajoled and mesmerized into harmful activities since they lack the capacity to appreciate the consequences and/or may not have a choice when faced with these devilish situations.
It is instructive to state, that although defilement is an offence on its own, it is not a miniature of the offence of rape. Also the evidence to establish the offence of defilement is the same as in rape except that in the case of defilement, it is immaterial whether the act was done with or without the consent of the victim. It is equally important to state, that the fact that sexual intercourse with the child is consensual is immaterial in the case of defilement.

Regard must be had to the provisions of section 218 of the Criminal Code which gives a time limit of two months within which the prosecution or trial of the case of defilement must begin. This time limitation I must say needs to be reviewed considering the vulnerability and state of the Nigerian child who might not speak of the experience until a much later date. Also there are other unforeseen circumstances that certainly make this time limit very inappropriate.
In our legal jurisprudence, our courts treat the issue of limitation of time with such gravity which makes the court lack the competence to try an accused charged for defilement if the prosecution is commenced after two months of committing the offence.
Considering the peculiarity of our courts and the nonchalant attitudes together with haphazard preparations of some prosecutors, most of these cases drag for too long and at the end of the day, justice is not served. This state of affairs negatively affects the victim and as such, the psychological effect of the ugly ordeals/experience leaves a lasting negative memory on the victim.
As a society, everyone must play a role in ensuring that we protect the younger generation so that we will not have psychologically imbalanced adults whose emotions are shattered and who think that they deserved what they experienced while the perpetrators of these crimes are left unnoticed and unpunished. Let’s save our children and the future of our nation if they are truly the leaders of tomorrow. As concerned citizens, we must be willing to expose every perpetrator of defilement and we must lend our voices to the victims so that this wickedness can be exposed within and around us.
Child Marriage also encourages defilement, even though a lot of legislations have been put together which kick against it. I urge the government to do more and totally eradicate it as its still prevalent in some parts of our country.
Our Children must be taught to always expose any form of threat or entreaties which this crime perpetrators use and they must speak out at all times of any compromising situation which they are not comfortable with or used to. This is a clarion call to us all.

SAVE OUR CHILDREN TODAY, SPEAK UP FOR THEM AND BE VIGILANT IN YOUR ENVIRONMENT.

REFERENCES:
… Blacks law dictionary
…Criminal law and sexual offences in Nigeria with Criminal Code Act by E. E. ALOBO
…IKO V STATE (2001) 14 NWLR PT 732 at 221
… EKEOGU V ALIRI (1991) 3NWLR PT 179 at 258
…. GOD BLESS EZENWATA NIGERIA LTD V SUNDAY  V ODIOKU & ORS 2015 LPELR-24438(CA)

BY AGUGUA MERCY… A legal practitioner, Child Rights Advocate, Public Speaker and a Writer.

Rape is parochiallysummarily defined as a non-consensual sexual intercourse. The operative word here is “non-consensual (presence and/ or consent).” Present and/ or absence of consent in a sexual intercourse is the focal point in rape cases. Consent therefore, is the magic wand that transforms sexual intercourse from being that conduct which is second only to the offence of murder in heinousness, to a conduct that is criminally innocuous.

In Nigeria as it is in other jurisdictions, having carnal knowledge without the victim’s consent constitutes the offence of rape. Hence, the question is: did the complainant willingly agree to the sexual intercourse at the time it took place?

The Nigerian courts have in several cases provided an insight on the constituents of this element, much as the sections of the Nigerian laws on rape had tried to do the same. See Popoola v The State (2013) 17 NWLR (pt.1382) 96 @123, Idris Rabiu v State (2005) 7 NWLR (pt.925) 491,etc Sections 357 and 282 of the Criminal and Penal Codes respectively. Absence of consent could be denoted thus:
—Absence of willingly given consent, that is, lack of consensus ad idem.
—Evidence of deception by fraudulent means.
—Presence of force, threat, intimidation or fear of any harm.
—Lack of capacity to give consent either due to age, insanity, intoxication, or unconsciousness.
—Revocation or withdrawal of a previously given consent, that is, “post penetration rape.”

The defendant cannot therefore hide under the principle of volenti non fit injuria if the alleged consent was tainted with any of the above vitiating factors.

Consent according to Section 74 of the English Sexual Offences Act, 2003 is defined thus; “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
Post penetration rape therefore means that there was a consensual sexual intercourse which the complaint at some point withdrew. In order words, it is a situation in which both parties initially consent to sexual intercourse, but, at some time during the act, one party communicates to the other that he or she is revoking consent and wishes to terminate the intercourse. After the revocation of consent, the other party forces the revoking party to continue the intercourse against his or her will.  The questions then areis:
—Can the defendant stop once the complainant revokes her consent?

—At what speed will the defendant suspend the act of coitus?

—What conduct of the complainant amounts to a valid revocation?

One would also ask…Does it amount to rape where the complainant had previous sexual relations with the accused? Or where the complainant had sexual relations with other men? Or where the complainant is a common prostitute? These were the points that often hamper the effective prosecution of the offence of rape. Proper interpretation of the conducts of the victim has always been a clog in this regard.

Post penetration rape was first introduced by the United States case of State v Way 254 E 2d @761. In this case, the accused was convicted of second-degree rape by the lower court on the ground that the lady withdrew her consent to sex after Way had actually engaged in sexual intercourse with her, but Way, nevertheless, continued the act.

The concept of post penetration rape was developed by the Supreme Court of North Carolina in the case of People v Jonh Z in 2003 (Cal.2003) 60 pp. 183, 184. The fact of this case was that a 17-year-old girl attended a party with her new boyfriend. Everyone in the party drank alcohol, but she did not. Although the girl said that she was not ready for sex, she engaged in a three-way sexual encounter at the party with her boyfriend, John. During the encounter, John left the room and the girl and her boyfriend had sexual intercourse. When it was over, John and the girl began having sex. The girl, having second thoughts, rolled on top of John and told him she had to go home. He rolled on top of her and responded, ‘’just give me a minute.’’ The girl replied, ‘’no. I have to go home.’’ About one minute later, John stopped the intercourse. The California Supreme Court in 2003 held that John’s actions constituted a forcible rape. In doing so, the court pointed out that rape include situations where the victim initially consents to intercourse, but then withdraws her consent after penetration. 

According to section 6 of the Criminal Code Act, sexual intercourse that is unlawful is consummated upon penetration. There is no requirement that semen be emitted. The hymen, if present, need not be broken. In R v Hines (1844) 174 ER 861, Upahar v State (2003) 6 NWLR Pt. 816 p. 230 and plethora of decided cases it has been held that the slightest penetration is sufficient. In essence, this rule demonstrates that rape is concerned with the violation of the victim, not with the satisfaction of the defendant.

Again, as was held in Kaitamaki v R (1985) AC 147, sexual intercourse is a continuing act; that is, if the victim consents to penetration but at a later time during the intercourse revokes her consent the man is guilty of rape if he does not withdraw. In R v Cooper (1994) Crim LR 531, the court said that rape was a continuing act, thus, if the accused continues penetration after consent has been withdrawn, he is guilty of rape.

We must continue to remember that penetration does not seem to connote a continuing activity. One penetrates at one moment. It is the penetration without the victim’s consent which is the crux, and that occurs at one time. Intercourse is a continuing act; it is not complete on penetration –rape does not solely depend on penetration.

In R v Brookes (1993) 16 Cr App R (S) 496, it was held that an accused is guilty if not knowing at the start of the sexual intercourse that the woman was not consenting, he finds out during it. The implication of the above principle is that consent must subsist throughout the moment of sexual intercourse.

What form of resistance denotes revocation? The essence of this is that presence of force, threat, fraud or other vitiating elements of consent are not germane in all cases. Sometimes, the victim may say “No” or “Stop”, it would be interpreted to mean revocation. Time and events have overtaken periods where coercion or violence must be established in the offence of rape.

In conclusion therefore, rape could occur where the victim after given consent decides to withdraw it. The defendant is expected to stop once the previously given consent is withdrawn, initial consent is inconsequential and goes to no issue. These culminate in what many jurisdictions call post penetration rape which is yet to be recognized in our Nigerian laws. Although, the Nigerian laws on rape did not create such demarcation between initial consent and absence of consent ab initio. However, in view of the fact that human physiological and anatomical constitution is not designed to function as a machine that once you press “on” it starts and would stop at the press of “off” button, it should be taken into consideration in deciding the offence of rape. Again, some attitudes of the victims today might be interpreted to mean different things. A “no” might mean that you should continue, the same way a “stop” might mean.

Initial consent and absence of consent ab initio can never mean the same thing. Where the victim is a partner to the accused at the said material time, it must be taken into consideration. This is basically to avoid situations where the victim would out of malice, spite or ill- will acrimoniously wakes up to blackmail or accused his/ her “ex” for an act which the person never contemplated. This is to further stress the fact that rape as a criminal conduct must be able to establish the presence of actus reus (guilty act) and mens rea (guilty mind), hence, actus facit reaum nisi mens fit rea.

INTRODUCTION:
The health care system in Nigeria has recorded unimaginable and unsatisfactory performance in quality delivery for a very long time. Medical services are still not accessible to many people especially the poor. Patients receive substandard care in many cases due to the negligence on the part of one health care provider or another and with high costs of accessing these services, the patients resort to quacks who may offer cheaper services, while causing greater harm or damage to the injured patients and their families.
This default position has made most health care providers indifferent in the presence of gross medical negligence. Though most Nigerians may be aware of their rights to institute legal action in situations such as negligence with serious harm or death, but, the socioeconomic factors, cultural, and religious notions among other reasons within the society often makes litigation impossible for an individual. Attributing every medical adverse event in the course of treatment as "God's Will" and the saying "It's God's Time" for every death among most African people has also become a great impediment to curbing medical negligence in our Country.
This work in its careful analysis of medical negligence and its defenses will be of invaluable assets to legal, medical and untrained minds in the society in which it will bring to focus instances when health care providers can be held liable in negligence.

DFINITIONS:
Negligence is a breach of a legal duty to take care which results in damage to the claimant.
Medical Negligence constitutes an act or omission by a clinician in which the treatment provided falls below the accepted standard of care resulting to injury or death of the patient.
TYPES OF ACTS OR OMISSIONS THAT WOULD AMOUNT TO MEDICAL NEGLIGENCE
Rule 29.4 of the Code outlines examples of what acts or omissions constitute professional negligence as follows:-
Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so;
Manifesting incompetence in the assessment of a patient;
Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them;
Failure to advise, or proffering wrong advice to a patient on the risk involved in a particular operation or course of treatment, especially if such an operation or course of treatment, especially if such an operation or course of treatment is likely to result in serious side effects like deformity or loss of organ, or function;
Failure to obtain the informed consent of the patient before proceeding on any surgical procedure or course of treatment when such consent was necessary;
Making a mistake in treatment e.g amputation of the wrong limb, carelessness that results in the termination of a pregenancy, prescribing the wrong drugs, or dosage in error for a correctly diagnosed ailment, etc;
Failure to refer, or transfer a patient in good time, when such a referral or transfer was necessary.
Failure to do anything that ought reasonably to have been done under any circumstances for the good of the patient;
Failure to see a patient as often as his medical condition warrants or to make appropriate comments in the case notes of the practitioner’s observations and prescribed treatment during such visits. It also includes failure to communicate with the patient or with his relatives as may be necessary with regards to any developments, progress or prognosis in the patient’s condition.

FORMS OF LIABILITY FOR MEDICAL NEGLIGENCE

CRIMINAL LAIBILITY
Criminal law obviously applies to health care providers, and the purpose of criminal prosecution is to punish the offender. In Nigeria the Criminal Law codes applies.
Section 303 of the Criminal Code provides that, it is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable skill and to use reasonable care in doing such act; and such a person by reason of any omission to observe or perform that duty. In  R v. Adomako, an anesthetist was found guilty of manslaughter where he caused the death of a patient due to his gross negligent in attention during surgery.
Consequently, for Criminal liability, the degree of negligence required of health care providers is that it should be “gross” and not “mere” negligence. The Privy Council in shading more light on what amounts to gross negligence held thus “ it must be remembered that the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence by giving it that appellation”.

CIVIL LAIBILITY
The most common and potent basis of civil liability for medical malpractice cases is negligence. The main rationale for liability for medical negligence is that, someone harmed by the action of a health care provider deserves to be compensated by the injuring party, he may sue for negligence against the provider for the injury suffered.

THE NEGLIGENCE TEST
To determine negligence, a three stage test must be satisfied. Thus, in order to succeed, the law requires the plaintiff to show that:
the defendant owes him a legal duty of care,
there was a breach of that duty, and
he suffered injury/ damages as a direct result of the breach.

DUTY OF CARE
The relationship between a health care provider and a patient is a special one. When a patient is admitted to a hospital, a duty of care relationship is created, which can be applied to any health care provider coming into contact with the patient not just the admitting team. In Hedley Byrne & Co. Ltd V. Heller & Partners Ltd, Lord Morris noted as follows:
“it should now be regarded as settled that if someone possessed of a special skill undertakes quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care arises…”

BREACH OF DUTY
Breach of duty means that a defendant’s conduct fell below the required standard expected of him. Where there has been a potential breach of professional duty, this is reinterpreted as that of comparable professional standard.
The mere fact that a mishap occurs does not establish negligence on the part of the provider as long as he followed the approved procedure for the treatment offered. There must be some form of standard against which the conduct of the health care provider has to be examined – that is the standard of a reasonable, skillful health care provider of the same experience, placed in the same circumstances. However, the standard is relative that is in each circumstance, the standard will be judged by factors as time, place and availability of facilities.
In every case, the law requires that the health care provider’s conduct must not fall below expectation or standard. Therefore he must always act like a reasonable, skillful and competent provider in order to avoid liability.

DAMAGE
Establishing causation can be difficult, as it must be demonstrated that “but for” the doctors action/inaction harm would not have occurred. This remedy is recognized by law in order to assuage the feelings of the injured plaintiff.
The onus of proof lies with the plaintiff and usually, if a provider does not admit negligence in a given case, then the plaintiff will have to call evidence to show negligence on the part of the provider, that is to show that the conduct of the provider fell below the required standard in a particular case, then the onus of proof shifts to the defendant, which if not discharged will lead to his liability. If damage would not have occurred but for the providers act, then his act caused the damage and he should be liable. On the other hand, if the damage would have occurred despite the provider’s act, then his acts did not cause the damage and should he escape liability.

MEDICAL NEGLIGENCE INCIDENTS: FEW CASE STUDIES IN NIGERIA

The case studies presented here are derived from F.N Chukwuneke’s experience in clinical practice and complaints from some patients in Nigeria. These cases were not litigated, and there were no medical liabilities established.
Case 1: Medical error
A 27-year-old woman had a upper right jaw swelling following a poorly healed extraction site. The swelling extended to her right upper eye-lids prompting her seeking for a doctor (maxillofacial surgeon) attention. The doctor suggested and carried out a biopsy to determine the histopathological status of the lesion before performing further treatment. The biopsy was performed, and the specimen was sent to a certified oral pathologist. The result confirmed a case of fibrosarcoma (cancer) which was sent to the attending surgeon. The surgeon was in the dilemma of the next treatment options since the result came out as a cancer case and the alternatives considered were radiotherapy and surgery. The radiotherapy was to commence before the surgery, but the doctor on a second thought, decided to carry out the surgery before radiotherapy. During the surgical procedure, the surgeon observed that the lesion was not presenting such as a cancerous lesion and promptly called the oral pathologist for second assessment and thereafter the lesion was confirmed noncancerous (giant cell lesion).
Cases 2: Medical error
A 17-year-old boy reported to the oral and maxillofacial surgery unit with 2 months history of left mandibular swelling following tooth extraction. The patient had gone to a nearby public hospital when he noticed a little swelling at the buccal aspect of the first molar on the lower right jaw. A peri-apical radiograph was taken by the attending dental surgeon after which he carried out an extraction of the tooth without checking and understanding the X-ray findings. A week later, the swelling became bigger prompting the patient going back to the dentist who attempted aspirating the swelling. Within the next few days, the swelling had grown bigger with serious pain, discomfort, and facial distortion. The patient at this point had to seek a second opinion. On seeing the patient, the maxillofacial surgeon looked at the previous X-ray and observed the widening of the periodontal ligament that suggested a cancerous lesion (sarcoma) which the dentist could not see. Biopsy result confirmed osteogenic sarcoma. At this stage, the lesion was inoperable. The patient died 3 weeks after commencement of chemotherapy.
Case 3: Clinical negligence
An anesthetic doctor was in a haste to intubate a patient for a major surgery. Unfortunately, the patient he was attending to and trying to intubate was a difficult case for easy intubation because of the involvement of the lesion in the head and neck region. The patient became seriously traumatized both orally and intra-nasally without progress getting him intubated, prompting the surgeon to advice the anesthetics to resuscitate the patients so that tracheotomy could be carried out to facilitate the surgery since it was obvious that he could not intubate the patient in a conventional way. The anesthetic doctor assured the surgeon that everything was perfect that he could go ahead and perform the tracheotomy that he was going to pick something and come back. Not minding the vehement protest from the surgeon he left the patient. On trying to perform the tracheotomy, the surgeon observed that the patient was no longer breathing and all attempt to revive the patient was fruitless.
Case 4: Medical error/malpractice
An elderly woman of about 75-year-old had a dentofacial infection and the children ignorantly took her to a general medical practitioner who admitted her in his private hospital. The general practitioner did not refer the patient to a specialist instead continued giving the patient treatment. One week after the infection continued spreading resulting to cellulitis yet the doctor did not think wise to refer the patient. All these time the family was spending money with no pleasing result while the woman was languishing in agony. When it became obvious that the woman's health was deteriorating, the doctor without any clinical investigation called the patients family and told them to go and prepare for their mother's burials because she has cancer of the oral cavity and will die in a week's time. When she was taken away from the hospital and with much moaning every day, as result of severe pains she was passing through, someone suggested and they saw a dentist. The dentist then referred her to a maxillofacial specialist surgeon who made a clinical diagnosis of dentofacial infection with cellulitis and initiated adequate treatment immediately. The woman survived

DEFENCES IN MEDICAL NEGLIGENCE
There are a number of possible defences to a medical negligence action, they include but not limited to:

CONTRIBUTORY
In some cases, patients contribute to their own injuries, despite having also been harmed by a health care provider’s negligence. Once contributory negligence is proven, the appropriate apportionment needs to be considered to determine what is “just and equitable” in accordance with the legislation. This is subjective and based on findings of fact.
VOLUNTARY ASSUMPTION OF RISK
Volenti non fit injuria (no injury is done to one who voluntarily consents) is a comolete defense to an action in negligence. The defendant needs to prove not only that the plaintiff accepted the risk of injury but also accepted that if injury should happen, the plaintiff would accept the legal risk.

THE PEER ACCEPTANCE DEFENCE
In Rogers v. Whitaker it was held that it is ultimately for the Court to decide the appropriate standard of care in medical negligence cases, health care providers were concerned about an increase in their liability in negligence. Under the Bolam test, a health care provider would not be liable in negligence as long as he acted in accordance with a practice accepted at the time as proper practice by a responsible body of medical opinion. 
There are exceptions to the widely accepted defence, depending on the precise wording in the legislation in the particular jurisdiction, they include where the action undertaken by the health care provider is irrational and unreasonable.

GOOD SAMARITANS
Good Samaritans are people who give assistance to others in an emergency. The concerns by health care providers that they are likely to be sued for such assistance in an emergency has been addressed by civil liability legislations in all jurisdiction. However this protection does not avail them if they are significantly impaired by alcohol or drugs and gross negligence.
APOLOGIES
Legislation encourages apologies to be made and thereby reduce the number of actions commenced, by providing that they are made with no admission of legal liability. Previously such admissions of regrets and apologies could be used as evidence of an admission of fault, whereas now they are not admissible.
RECOMMENDATIONS/ CONCLUSION
In order to eliminate or minimize this ugly situation, patients should not hesitate to sue negligent health care providers.
Hospitals should also employ only qualified health practitioners in order to improve healthcare delivery.
 The law should provide stiffer punishment for gross negligence so as to deter quacks from toying with lives of the vulnerable who consult them for medical treatment. Such a step would promote a better and safer health care delivery system in Nigeria.
The health care stakeholders and policy makers should put in place legal and legislative measures to curb this menace while clinicians for the sake of obligation should ensure that they maintain the highest standard of patients care in their practice.
There is a need to emphasize early medical ethics training for health care professional at the undergraduate level as well as promoting and organizing workshops to constantly keep them well-informed.
The public from time-to-time should be encouraged to report any case of suspected negligence and medical errors in order to have documented evidence on the rate of occurrence. This in turn will help the health policy makers and medical regulatory body (NMDC) to understand the extent of the health problem and finding out the best method to reduce the rate of occurrence in the health care sector.

WRITTEN BY:
EWA-UDU ONYA (Esq)
ewauduonya@gmail.com
08101239098

CYBERCRIMES (PROHIBITION, PREVENTION, ETC) ACT, 2015

Here are some of the provisions to keep in mind.

Section (24)
(1) Any person who  knowingly or intentionally sends a message or other matter by means of computer systems or network that -

(a) is grossly offensive,  pornographic or of an indecent,  obscene or menacing character or causes any such message or matter to be so sent; or

(b) he knows to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction,  insult,  injury,  criminal intimidation, enmity,  hatred, ill  will or needless anxiety to another or causes such a message to be sent:

commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.

(2) Any person who knowingly or intentionally transmits or causes  the  transmission of any communication through a computer system or network -

(a) to bully, threaten or harass  another person, where such communication  places another person in fear of death, violence or bodily harm or to another person containing any threat to kidnap any person or any threat to harm the person of another, any  demand or request for a ransom for the release of any kidnapped person, to extort from any person, firm, association or corporation, any money or other thing of value; or

(c) containing any threat to harm the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, to extort from any person, firm, association, or corporation, any money or other thing of value:

commits an offence under this Act and shall be liable on conviction -

(i) in the case of paragraphs (a) and (b) of this subsection to imprisonment for a term
of 10 years and/or a minimum fine of N25,000,000.00; and

(ii) in the case of paragraphs (c) and (d) of this subsection, to imprisonment for a term of 5 years and/or a minimum fine of N15,000,000.00.

26. (1) Any person who with intent -

(a) distributes or otherwise makes available, any racist or xenophobic material to the
public through a computer system or network;

(b) threatens through a computer system or network -

(i) persons for the reason that they belong to a group distinguished by race, colour, descent, national or ethnic origin, as well as, religion, if used as a pretext for any of these factors; or

(ii) a  group of persons which is distinguished by any of these  characteristics;

(c) insults publicly through a computer system or network -
(i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or

(ii) a group of persons which is distinguished by any of these characteristics; or

(d) distributes or otherwise makes available, through a computer system or network,
to  the  public, material which denies or approves or justifies acts constituting genocide or crimes against humanity -commits an offence and shall be on conviction to imprisonment for a term of not more than 5 years or to a  fine of not more thanN10,000,000.00 or both such fine and imprisonment

2) For the purpose of subsection (1) of this section, the term -

“Genocide” means any of the following acts committed with intent to destroy in whole or in part, a national, ethnic, racial or religious group as such: killing members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another
group.

“racist or xenophobic material” means any written or printed material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual group of individuals, based on race, color, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors.

 It is pertinent to note that the provision commonly referred as “defense of accident” primarily deals with the mental element of an offence. It is concerned with facts and events which were not intended by an accused.

From the foregoing, the provisions of section 24 of the Criminal Code and 48 of the Penal Code is a very much relevant consideration in respect of any offence; and the duty of proving that a defendant is not entitled to the provisions (i.e. that his act was voluntary) rests with the prosecution. Although the defendant would have to introduce evidence to that effect if he wishes to rely on “defence” of accident but the prosecution must convince the court that the defense does not avail the defendant, see  Maiyaki v State (2008) LPELR-1823(SC).

In this part, we shall attempt a succinct examination of the provisions of section 24 .The analysis will be primarily hinged on the appreciation of the provisions of this section; the wordings of the section will be clearly examined and an attempt will be made to arrive at the true intent of the provision.

In part two (2), judicial authorities on the application of section 24 and 48 will be examined to understand the attitude of Nigerian courts as it pertains to the provisions and a comparison of the provisions  will be attempted.

For the sake of clarity, the provision of section 24 of the Criminal Code is reproduced:

Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident. , Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

The Scope of the Provision

Before we proceed, it is important to determine the scope of the application of section 24 of the Criminal Code. The criminal code as we all know, applies only to Southern Nigeria, see section 1 of the Code. Section 24 of the Criminal code is contained in chapter 5 of the Code and it applies to all offences in the South by virtue of section 2(4) of the code which provides that

The provisions of Chapters 2, 4 and 5 of the Criminal Code shall apply in relation to any offence against any Order, Act, Law, or Statute and to all persons charged with any such offence.

The import of the above section 2(4) is that section 24, which is contained in Chapter 5 of the Code, applies to even offences outside the code—provided that such offences are in Southern Nigeria.

We shall now proceed to a step by step consideration of the wordings of the section
Negligent Acts and Omissions

The first paragraph of the section expressly subjects the provision of the section to any other provision of the Code which has negligence as an element. The import is that the express provisions of any section in the code which has negligence as an element cannot come under the provisions of section 24. A ready example is road traffic offences. If a person drives negligently and kills a road user, it is immaterial that he did not intend the consequence; he cannot plead section 24. See Moses v State 2006 LPELR 1915(SC) where the court quoted Hill v. Bexter (1958) 42 CAR 42 at 58, Lord Goddard, L.C.J, described dangerous driving (which resulted to manslaughter), as an offence of absolute prohibition into which no mens rea enters and that it is no answer to say, “I don’t mean to drive dangerously”.  Also in Amusa v State 2003 LPELR-474(SC)   per Onu JSC:”In Road Traffic Offences, the slightest negligence on the part of the appellant is sufficient to sustain a conviction”.

An issue may arise as to whether section 24 applies to offences which are outside the code and which has negligence as an element of such offence, bearing in mind that section 24 only subjects itself to “express provisions of the code”? We humbly submit that if a later provision (a provision later in time to section 24) has expressly made negligence a requirement of an offence, then it will override the provision of section 24 and it will apply as if “it is an express provision in the code”. This position is supported by the canon of interpretation: generalibus specialia dorogant (i.e. special things derogate from general things) see Madumere &anor v. Okwara &anor. (2013) LPELR-20752(SC).

We will also state that the fact that an act is unlawful does not without more, deprive a defendant from benefiting from the provisions of section 24. For e.g. if “A” merely slaps “B”  (Criminal assault which is unlawful) and “B” slumps and dies as a result of an abnormality which was unknown to A. the mere fact that the act of slapping B is unlawful will not deny “A” from relying on section 24 because B’s death was not foreseeable and not reasonably foreseeable. This view finds support in the clear wordings of the section. It is a sound canon of interpretation that the express mention of a thing excludes that not mentioned. Thus, we cannot possibly remove unlawful acts from the application of the section.

Having determined that negligent acts or omission can be expressly displaced from the provision of section 24, and that the provisions does not discriminate against unlawful acts, we shall now proceed to consider what many has classified as the “limbs” of the provision, and which we shall  for the sake of convenience, adopt.
The First limb

“A person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will”

The act in question here must be an act which the law regards as a crime. It connotes the external elements of the offence. The act in context is not the mere physical act but a criminal act. Omission here must also be criminal omission. Criminal omission occurs when a person who is legally bound to perform a duty intentionally fails to perform that duty.

Before a person can be criminally responsible for an act or omission, the act or omission must be intentional, negligent or reckless. He can only be criminally responsible if he is fully aware of all the surrounding circumstances.

In the locus classicus of Thimbu Kolian v. the Queen,(1968) 119 C.L.R 47, the defendant, in the dark aimed a moderate blow at the nagging wife, unknown to him, the wife was carrying their child, and the blow landed on the child and killed it. The court held that the striking of the child was not the defendant’s willed act as it occurred independently of the exercise of his will

Windeyer J held:

“The wielding of the stick was a physical act done in response to a mental stimulus, it was in every sense willed, but it was willed as a blow to the woman and not at the child”
The Second limb
“An event which occurs by accident.”

Chambers Executive 21st Century Dictionary defines an event as “something that occurs or happens: an incident, especially a significant one.

From the wordings of section 24, it is clear that the event contemplated must be a result of a willed act. In Thimbu Kolian v The Queen, Windeyer J also stated that “an event in the context refers to the outcome of the accused, for a man cannot be responsible for an event which he had no part at all”…

What can be deciphered from the foregoing is that “event” as contemplated by section 24 refers to outcome arising from the willed acts of the accused and not an event which he has no part in e.g. an act of God

An event is a consequence of an act e.g. death, in some cases, there might be some confusion between an “act” and “event” e.g. in Timbu kolian’s case the Justices were divided as to which limb of section 23 of the Queensland Code (our Section 24) applies. Okonkwo (Nigerian Courts and Section 24 of the Criminal Code, Law Monograph Series 1) submitted that in resolving such confusion, the test is to ascertain the focus and substance of the charge. E.g. if a person is charged for the outcome (e.g. death resulting from assault) then the second limb would apply but if the charge is for the act directly done, and no more, (e.g., assault) then the first limb would apply.

There really seems to be no hard and fast rule in distinguishing an “act “from an “event”, some scenarios might blur the distinction. But whenever a person is charged with causing death (murder or manslaughter) the second limb should apply since death—an event, cannot be an act.


In some instances, the defendant might have achieved his willed act, but something else occurs which is not intended by him. E.g. if Mr. A, merely  intends to give Mr. B a “dirty slap” and Mr. B unexpectedly falls as a result and hit his head on a sharp stone and dies, the death of Mr. B in this illustration is an event which will come under the second limb. This conclusion will also apply to cases where unknown to the defendant, the victim has some inherent peculiarities e.g. hemophilia, and the event would not have occurred but for the abnormal peculiarities which was unknown to the defendant cf R v Martyrs, (1962) Qd. R. 398, where the court incorrectly applied the egg-shell skull principle.

Accidental event was defined in Nnamah v. The State (2005) 9 NWLR (Pt. 929) 147, as “one that is not intended by the actor; It is not foreseen by him and is not reasonably foreseeable”. It is an event which occurs outside anyone’s purposeful act and it not foreseeable or reasonably foreseeable. The test of foresight is objective. See Araremor v Sate (2014) LPELR-22591(SC) where the court held that the event must be a surprise to all sober and reasonable persons.
Some statutory exceptions to the section

A person may however be liable for an act not willed by him. Sections 8 (offences committed in prosecution of common purpose) and 9 of the Criminal Code (counseling another to commit an offence) provides for parties to an offence. Every party is liable as the principal offender for any act done in pursuance of the common intention even though the act is unwilled by any of the parties but provided that it is foreseeable. Same also applies to one who counsels the commission of an offence. E.g. if a gang of armed robbers had agreed not to kill anyone during their operation, but one of them gets paranoid during the robbery and murders a person, it is immaterial that the act was not willed by the others. This is so because death is a probable consequence of armed robbery OR when Chief Badman procures “A” to go and beat up Chief Goodman his political rival and “A” ends up killing Chief Goodman in the process, it is immaterial that Chief Badman did not intend Chief Goodman’s death provided that the offence committed (murder) is a probable consequence of offence counseled (assault).

              By

    V.C Unegbu Esq.

Nigeria: Mandatory HIV Testing and
Dismissal of an Employee on the Basis of
HIV-status

Salc : Staff Writer

SALC worked with Lawyers Alert, Nigeria to challenge the mandatory HIV testing of an employee of a security company and his subsequent dismissal on the basis of his HIV-status, in X v Brink and Others.

The applicant, Mr X, was an employee of a private security company. Upon commencing his employment, Mr X was ordered by his employer to undergo a medical test at a local hospital in Abuja. He was given written instructions in a sealed envelope for the healthcare worker. Acting on this instruction and fearful of risking his employment, he submitted himself with the sealed instructions to the hospital where he was examined and subjected to a number of tests. He was not informed of the nature of the tests nor was consent sought by the relevant healthcare workers.

Mr X was given a medical report to submit to his employer. He discovered upon reading the report that he had been subjected to an HIV test and was found to have tested positive for HIV. No certification of medical fitness for employment was issued by the hospital. Understanding the mandatory nature of the order from his employer, Mr X submitted the medical report to his employer. Ten days later he was verbally informed that his employment had been terminated. He was later informed that his employment had been terminated on the basis of his HIV-status. Despite submitting two subsequent letters from medical doctors attesting to his fitness to work, Mr X was not reinstated.

The defendants denied that Mr X was their employee and denied that he had been dismissed on the basis of his HIV status.

On 26 September 2018, the Abuja Industrial Court found in Mr X’s favour. It held that employers are prohibited from coercing existing or prospective employees to undergo HIV testing and that dismissing employees on the basis of their perceived or actual HIV-status is unlawful and discriminatory.

The Court declared that Mr X’s employers had violated his rights under the Anti-Discrimination Act, the Constitution, the Labour Act and the African Charter on Human and Peoples’ Rights Act. Moreover, the Court awarded Mr X damages to an amount of over five years’ salary, “[c]onsidering the stigma and opprobrium attached to HIV and the cavalier manner” in which Mr X had been treated by his employer.

Note:

    The Court granted an order to protect the identity of the claimant, whose name has been anonymised as “Mr X”. In order to protect Mr X’s identity and prevent any public disclosure of his HIV status, no information may be reported that will lead to his personal identification.
    This case was supported by SALC due to its participation in a 10-country regional grant (the Africa Regional Grant on HIV: Removing Legal Barriers) which includes Nigeria. Nigeria is not a country in which SALC has traditionally worked. However we elected to provide assistance in this matter as a result of our involvement in this Grant and our capacity in health rights expertise. SALC remains focused on its southern Africa mandate.

The Independent National Electoral Commission, INEC in a publication on 10th October, 2018 disqualified the ruling All Progressive Congress (APC) from fielding candidates for elective positions in Zamfara State for 2019 elections.

According to the electoral body, the decision was taken as a result of the failure of the party, APC to elect its candidates within the stipulated period in accordance with provisions Sections 87 and 31 of the Electoral Act 2010 (as amended).
All Political parties had up till 12:00 am on Sunday to complete their primary elections for various offices; findings at APC headquarters in Abuja indicated that Zamfara state was unable to beat the deadline.

The next question to be asked is whether or not INEC has the statutory power to disqualify APC from fielding candidates for elective positions in Zamfara State for the 2019 elections? We will answer in NEGATIVE for the following reasons.

By virtue of Section 31(1) of the  Electoral Act 2010 (as amended) every political party shall not later than 60 days before the date of appointed for a general election under the provisions of the Electoral Act, submit to the INEC, in the prescribed form, the list of candidates the party  proposes to sponsor at the elections, provided INEC shall not reject or disqualify candidate(s) for any reason whatsoever. For ease of reference the Section 31 (1) Electoral Act 2010 (as amended) provide thus:

 Section 31(1)
Every political party shall not later than 60 days before the date of appointed for a general election under the provisions of this Act, submit to the Commission, in the prescribed forms, the list of candidates the party  proposes to sponsor at the elections, provided the Commission shall not reject or disqualify candidate(s) for any reason whatsoever…
From the forgoing provision which INEC arbitrarily and capriciously relied on in disqualifying APC from fielding candidates for elective positions in Zamfara State for the 2019 elections, APC has not later than 60 days before the date of  general election under the provisions of the Electoral Act, submit to the INEC, in the prescribed form, the list of candidates the party proposes to sponsor at the elections.

The general Election time table as published by the INEC on their official website is on 16th February, 2019 and 2nd March, 2019 for Presidential/National Assembly Elections and Governorship and State Assembly/FCT Council election respectively.
Now APC, has over 100 days from today, 10th October, 2018 which the INEC purportedly disqualified them from fielding candidates for elective positions in Zamfara State for 2019 elections.

The Commission (INEC), also relied on provision of Section 87 Electoral Act 2010 (as amended) to purportedly disqualified APC from fielding candidates for elective positions in Zamfara State for 2019 elections. Section 87 of the Act stated thus:
“A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions”

In quick response, the highest court of the land, Supreme court in the case of Shinkafi  v. Yari (2016) 7 NWLR, Pt 1511, p. 340, at 374-375 paras F-A; and 414- 415 paras G-B, (per Onnoghen CJN) settled this kind of issues and held that The Electoral Act 2010 (as amended) does not state that any party which fails to give notice of its congress etc to INEC would forfeit the right to field a candidate…”
From the authority of Shinkafi  v. Yari (Supra) and provision of Section 31 (1) of the  Electoral Act 2010 (as amended) INEC lacks all power and authority to disqualified APC from fielding candidates for elective positions in Zamfara State for 2019 elections.

The purported disqualification of APC done by INEC on 10th October, 2018 is illegal, void, unknown to law and unconstitutional and against the provisions of the Electoral Act 2010 (as amended).

       
                             
                                                 
Abstract

The security agencies especially the Nigerian police Force is empowered by the section 4 of the police Act 2004 and various judicial dictato carry out investigations, arrest and prosecute any person alleged to have committed an offence or on reasonable suspicion of having committed an offence before any court of law in Nigeria,including the Supreme court. However,the letters of these salient provisions are yet to attain full implementation as the police have lamentably limited their cases to the Magistrates’ court and other inferior courts of record. This article x-rays the holding charge concept, its constitutionality and setbacks to the accused person standing trials before these courts .It mirrors further,the negative effect the concept of holding charge has meted out on suspects yet to be tried thereby impugning the right to be presumed innocent until proven guilty  by a court of competent jurisdiction as enshrined in the Constitution of the Federal Republic 1999.This article examines the power of remand  imbued on the Magistrates’ court within the ambit of the  Administration of Criminal justice Act(ACJA) of 2015 by virtue of  sections 293-299,which provision is in pari materia in the various states of the Federation that have enacted the Administration of Criminal Justice Law in their jurisdictions.
Introduction
A holding charge otherwise known as a remand order is defined by the Black’s Law Dictionary to mean a criminal charge of some minor offence filed to keep the accused in custody while prosecutors take time to build a bigger case and prepare a more serious charge. Thus a holding charge is a charge brought by the Police or other law enforcement officer against an accused person before an inferior court that lacks jurisdiction to try the offence charged ,pending the receipt of legal advice from the Office of the Director of Public Prosecutions, to recommend the accused person’s trial in a court of competent jurisdiction or tribunal set up to try the particular offence.
Juxtaposedly, the enabling provisions of the Constitution of the Federal Republic of Nigeria 1999 guarantees the accused person the right to be presumed innocent until proven guiltyand to be arraigned in a court of law within a reasonable time.The expression reasonable time is defined in the provision to mean;
in any other case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers,a period of one day;and
in any other case a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.
At this point,it could be drawn that the provisions of the Administration of Criminal Justice Act 2015 which  mutatis mutandis is in pari materia with the provisions of the Administration of  Criminal Justice  Law(ACJL) of Enugu state 2017 appears to be inconsistent with the provisions of the grundnorm,the Constitution of the Federal Republic 1999.Thus the purpose of this article is to inquire into,investigate and scrutinize this seeming inconsistency and try to strike a balance if any,between perspectives, while also examining the provisions of the ACJA 2015 and the ACJL,Enugu state 2017 vis a vis the provisions of the CFRN 1999.
ARGUMENTS IN FAVOUR OF HOLDING CHARGE
Pundits and protagonists of the holding charge concept have variously supported their assertions with both case laws and statutory provisions. Accordingly, section 293(1)of the ACJA provides;
“A suspect for an offence which a magistrate court has no jurisdiction to try shall within a reasonable time of arrest be brought before a magistrate court for remand.”
Similarly, section 223 of the ACJL,Enugu state provides;
“A person arrested for an offence which the magistrate has no jurisdiction to grant bail shall within a reasonable time of arrest be brought before a magistrate for remand.”
Advocates for this practice claim that it ensure judicial control of those arrested by the Police on criminal allegations and allows investigators and prosecutors more time to prepare for the arraignment of the suspect before the appropriate court.The rationale for the practice was laid down in the Supreme court case of Lufadeju v.Johnson inter alia;
Where there is strong suspicion that the suspects committed an indictable offence
Where there is the need to lawfully and properly keep them in custody
Police investigation sometimes take time
Sometimes there is the fear of a likelihood of committing same or other offences
There is likelihood of interference with investigations
While the process continues or is concluded,the legal advice of the Ministry of Justice is sought.

Dilating further,the court in the above case held that the practice of holding charge is not unconstitutional,but rather it complements the provisions of Section 35(4) of CFRN 1999 and
is designed to aid the administration of criminal justice in the country.
CONFLICT OF RATIOS
It is not in doubt that the intention of the legislators in enacting the ACJA and sister legislations was not to curtail,abridge,whittle down,truncate,abrogate or take away the much cherished rights,freedoms and liberties duly granted to the citizen by theCRFN 1999(As amended).
The National Assembly has no fiat to abrogate or diminish constitutionally guaranteed rights of any citizen under the guise of making laws. It is trite principle of law as copiously replicated in a plethora of cases, that the National Assembly or the State Houses of  Assembly in enacting laws cannot exceed the powers donated to it by the Constitution nor can it make laws that ousts or purports to oust the jurisdiction of the courts.
Thus when the National Assembly makes laws that are inconsistent with the provisions of the constitution, such laws become automatically void to the extent of their inconsistency.
Moreover  there are litany of cases  decided subsequently after that given in the case of Lufadeju v. Johnson(supra) that condemn the practice of holding charge in our jurisprudence.Recent  judgements of the Court of Appeal have deviated from this decision of the Supreme court in a number of cases where it was held that the concept of a holding charge is unconstitutional and an aberration.
 Thus in Olawoye v.C.O.P,the Court of Appeal per Abdullahi JCA held;
“Holding charge is unknown to Nigerian law and an accused person detained thereunder  is entitled to release on bail within a reasonable time before trial moreso in a non-capital offence”
Dilating further in Shagari v.COP (Summary judgement of Sanusi and Ogbuagu),the Court of Appeal held that
“ Holding charge has no place in Nigerian judicial system. Persons detained under an ‘illegal’, ‘unlawful’, and ‘ unconstitutional’ document tagged ‘holding charge’, must unhesitatingly be released on bail.”
In this case, the appellants were arraigned before a chief magistrate court, which certainly lacked jurisdiction in homicide cases and there was no formal charge framed against them accompanied by proof of evidence as at the time the High court heard their motion for bail.The above amounted to special circumstance for the High court to admit them to bail ,but by continuing to detain them on a “holding charge” was not a judicious and judicial exercise of discretion.
Finally,in the case of Onagoruwa v.The State Justice Niki Tobi,JCA as he then was, held:
“It is an elementary but most vital requirement of our adjectival law that before the prosecution takes the decision to prosecute,which is the precursor to the charge decision,it must have at its disposal all the evidence to support the charge.”
ABUSE OF THE CONCEPT
Indeed the legality or otherwise of the holding charge concept has caused some ripples in the Nigerian jurisprudential waters  among scholars and practitioners alike, however ,one cannot deny the continued application of the holding charge in our legal stratosphere. Thus even if one is to accede to the claims of protagonists in favour of the concept, we cannot develop a blind eye to the level  of its abuse by security agencies. The ACJA and ACJL Enugu state provided circumspective and thorough guidelines when applying the holding charge but these guidelines are observed more in breach .
The statutes create a time protocol within which a person detained on holding charge shall be formally charged before a court of competent jurisdiction but the security agencies ignore these provisions  after securing the detention of the suspect and abandon the cases which in turn has led to prison congestion as the bulk of prison inmates are those in Awaiting-trial(ATM).
CONCLUSION
In the light of the foregoing, it can be drawn by deductive logic that the holding charge provision is constituting a bottleneck to the smooth and effective running of the Nigerian judicial system. Even though one may laud the objectives of the concept, it has become an encumbrance to the quick dispensation of justice in the country due to its misapplication.
The level of abuse of the concept by the security agencies cannot be overlooked, and this is the raison d’etre for  questioning  the application of the concept and its constitutionality, which many even the courts  have condemned as being totally against the spirit and letters of the Constitution of the Federation 1999(As amended).
RECOMMENDATIONS
In the light of the flagrant abuse and corruption of the practice of the holding charge concept by the security agencies especially the Police and the Economic and Financial Crimes Commission,a lawyer handling a matter for a suspect should construe the entire ramifications of the case before applying for the bail or discharge of the suspect. Thus if it is apparent that the prosecution have obtained the remand order solely to incarcerate or persecute the suspect, counsel must make this known to the court as the courts have constantly frowned at such practices.


Furthermore,when the security agencies have paucity of evidence to prosecute an alleged offender,they should not obtain a remand order to detain the suspect pending investigation. The adversarial system of our jurisprudence does not permit this incongr

INTRODUCTION
Marriage is a universal institution recognized and respected throughout the world. As a social institution, marriage is founded and governed by the social and religious norms of the society. Therefore, the sanctity of marriage is a well-accepted principle in the world community. In Nigeria, unlike most European countries, two systems of marriage are recognized; statutory (monogamous) and customary law (polygamous) marriages. These two marriages differ fundamentally from character and incidents. It is therefore important to take this duality into account in any consideration of marriage. The scope of this work shall be limited to the concept of marriage, types of marriage, conflicts between customary law and religion vis-a-vis marriage and conclusion.




DEFINITION OF TERMS
The term marriage as well as culture and religion does not lend itself to a universal definition.

MARRIAGE: Is a socially or ritually recognised union between spouses that establishes rights and obligations between those spouses, as well as between them and any resulting biological or adopted children and affinity (in-laws and other family through marriage).
Section 256 of the Evidence Act, 2011 as amended defined a wife and husband to mean respectively the wife and husband of a marriage validly  contracted under the marriage Act or under Islamic Law or Customary Law and includes any marriage recognized as valid under the marriage Act.

CUSTOMARY LAW
Judicially, customary law was defined by Braimain F.J in Owonyin V. Oinhtosho as a ”mirror of accepted usage”  similarly, Qbaseki Jsc in Oyewunmi V. Ogunesan defined customary law in a more elaborate but restricted language as “the organic or living law of the indigenous people of Nigeria regulating their lives and transactions ”.

RELIGION
It may be defined as a system of designated behaviours and practices, worldviews, texts, sanctifies places prophecies, ethics or organisations, that relates humanity to super natural transcendental or spiritual elements.


THE CONCEPT OF MARRIAGE
Marriage is universally accepted to be an institution governed by the social and religious norms of the society. It is apt to state that marriage as an institution has been in existence from time immemorial. It can be traced back to the creation of man and is considered to have spiritual, moral and social significance in the society. It is therefore revered as sacred and thus heavily guarded by various religious, traditions, social norms and laws alike.
In Nigeria, the sanctity of marriage cuts across all regions of the country regardless of culture and religion. The major type of marriage that existed during the pre colonial era were the cultural/traditional marriage and the Islamic/Maliki marriage. Thus, the  type of marriage was determined by the prevalent traditions and religions which governed the society where the parties lived and or where they originated from.

TYPES OF MARRIAGE IN NIGERIA
As stated earlier, the law recognizes  two different systems of marriage in Nigeria. One system is based on English Law (statutory marriage), while the other is based upon “native law and custom” or more simply “customary law”.9

STATUTORY MARRIAGE:
This is marriage regulated by statutes ¹ⁿ. It is monogamous in nature. It is a marriage which Lord Penzance described in Hyde V. Hyde as the ‘’voluntary union for life of one man one woman to the exclusion of all others’’.

CUSTOMARY LAW MARRIAGE:
This is marriage contracted under native law and custom which does not exclude marriage under Islamic law and is polygamous in nature.
Marriages contracted under customary law are valid in the eyes of the law provided that such marriages comply strictly with native law and custom governing marriages in the locality where the marriage was contracted.

CONFLICTS BETWEEN CUSTOMARY LAW RELIGION VIS-A-VIS MARRIAGE
The dual system of marriage practiced in Nigeria, creates a vast amount of problems. The dynamics of culture and religion have had many influences, manifestations and occurrences in marriage within Nigerian society. These manifestations and occurrences have had a significant impact on the stability of marriage in modern Nigeria society. A recent observation of people’s attitudes towards marriages in the country has revealed the alarming negative effect of these events.
The factors that militate against the quality and sanctity of marriage in Nigerian society in the 21st century includes but not limited to:

SUPERRIORITY CONFLICT: With the emergency of the dual system of marriage in Nigeria, customary and statutory Marriage has pitted religion and customary law at direct conflict. Since the marriage Act only recognises a licensed place of worship (church), Marriage Registry and Nigerian Embassy Abroad as the only valid places of celebration of statuary marriage. Religious authorities have seized that opportunity to bastardize customary law marriage to some extent, undermining and painting customary law marriage to be inferior. Not once have I heard preachers of the faith make assertions that only marriages contracted in church “before God” is valid and attracts God’s blessings.
These assertions are not only erroneous but misleading as within the Nigerian sociocultural context, there is no valid statutory marriage without first contracting customary law marriage, while there is a valid customary law marriage without statutory marriage. I am of the firm belief that God is in every marriage provided that the parties to the marriage seeks His face.

SOCIAL STRATA CONFLICTS: In an era of declining customary values and norms most people place less or zero value to customary law marriage per the celebration. All energy is geared towards the statutory marriage (Church Wedding) and most couples plunge themselves into huge debts in a bid to impress and live above their means. A customary law marriage celebration which is relatively cheaper is gradually going into abeyance because of the balkanization by both religious leaders and parties to the marriage.

ALIEN CONFLICT: Statutory marriage is an imported marriage based on “English Law” which is fast eroding our customary law marriage. It is instructive to note that the Holy Bible did not stipulate any form or manner in which marriage should be conducted but only stopped short at acknowledging and enshrining the monogamous marriage for Christians. The popular “White Wedding” is not biblical but the way of life of the West that we have copied copiously and out-spent the progenitors. We have relegated our culture and imbibed another’s culture and the marriage Act we imported from the English Law could not be legislated to recognise or stipulate necessary measures or steps that would confer monogamous or statutory marriage status to would be couples that do not want to undertake the “White Wedding” option.

RESTRICTIVE LAW CONFLICT: The law has made it imperative that a valid statutory marriage must be conducted in a licensed place of worship and in accordance with section 7 t0 17 of marriage Act for a marriage to be valid. The law is so rigid that any ceremony of marriage in a church which does not conform with the requirements of a valid marriage in a licensed place of worship is simply a blessing of marriage. In Martins V. Adenuga, the court held that the blessing of a customary law marriage by the priest was hereby a blessing of a customary law marriage and therefore did not constitute a marriage. That our laws place premium on an imported concept of marriage to the detriment of our customary law marriages is a slap on our culture. The marriage laws need to be amended so as to extend the same benefits accorded statutory marriages to customary law marriages. It is conflicting that one needs to go through the requirements of statutory marriage just for the benefits it accords.

SOCIO-ECONOMIC CONFLICT: In Nigeria today the cost of living keeps soaring and under this situation many men cannot afford the exorbitant cost of white/statutory marriage, while the traditional/ customary law marriage option is cheaper, simpler, practical to go through by a would be couple who earns meagre wages. Our religious leaders keeps emphasising on the need for church wedding, without a corresponding emphasis on financial support from the church. I keep asking myself, this question; “why borrow to finance a wedding of not more than Eight (8) hours and be indebted for the rest of your marriage years?”  There is no wisdom in this. For the marriage is the real and main thing not the wedding. Even the costliest of weddings don’t survive the rigors of marriage.


CONCLUSION
Marriage as a universal institution cuts across all regions of the country regardless of cultural and religious differences. The dual system of marriage created and obtainable under the marriage Act has generated a lot of conflict and controversies as addressed above. There is therefore the need for the National Assembly to jointly and severally examine and amend the corpus of Laws and procedure relating to customary law marriage in order to align the same with the internal best practises (customary law) and to resonate it with the contemporary sensitivity to the troubling conflicts addressed above.

EWA-UDU ONYA(Esq) 
08101239098
ewauduonya@gmail.com