BUSOLA VS. FATOYINBO: WHY THE TABLES MAY TURN AGAINST THE DAKOLOS (Part 1)
BY: JOHNMARY CHUKWUKASI JIDEOBI, Esq, [08131131942/ joannesmaria2009@yahoo.com]]
INTRODUCTION:
In the last week of June, 2019, the Nigerian cyberspace went up in flames and became saturated with the rape accusation levied against Pastor Biodun Fatoyinbo who is the senior pastor and founder of the Commonwealth of Zion Assembly (COZA), a church with congregation of several thousands of people which has its headquarters in the Guzape axis of Abuja, Nigeria. COZA now has branches in Abuja, Lagos, Port Harcourt and Dubai. Busola Dakolo, a mother of three, in an interview with Chude Jideonwo, a Nigerian lawyer, journalist and media entrepreneur, revealed that she was raped repeatedly by the Senior Pastor of COZA at different times. Busola Dakolo is a professional photographer, a former banker with Zenith Bank Plc, founder of Skillskitchen and Integrated Services limited and the wife of Timi Dakolo, a known music Artist who was the champ of Idols West Africa in 2007. The facts of this case as told by different sides to the raging controversy are all in the public domain. Therefore their narration cannot detain us here. It is however sufficient to lift some excerpts from the said divergent facts that would shed light on the legal analysis that would subsequently follow.
Narrating the alleged rape incident, Mrs. Busola said:
“Immediately I opened the door (of her house in Ilorin), he just pushed me, he didn’t say anything, he didn’t utter any word, he just pushed me to one of the chairs in my living room…I saw him, he was removing his belt, he just said: ‘keep quiet, (put his hand on my mouth), do what I want you to do and you will be fine.” “He didn’t say anything after the act; he just left for his car, returned with a bottle of Krest and forced her to drink it, probably as some crude contraceptive.” She also said he told her,” You should be happy that a man of God did this to you. “I have kept quiet over the years. I had to come out to say this because another narrative was being said.”
It is noteworthy that on the 4th day of July, 2019, multiple social media platforms informed us that Mrs. Busola Dakolo has filed a formal complaint before the Police against Pastor Biodun Fatoyinbo.
In his defence, the cleric, among others, said:
“Unlike previous statements where innuendos were used and there was no direct mention of myself or the Church, the recent video released on YouTube has now made direct criminal allegations against me in the interview granted by Busola Dakolo which are fallacious, non-existent and which are all denied in every measure….As an individual and as a Church, we love and support people and we would never condone any form of abuse, harassment, or intimidation of anyone. I have never in my life raped anybody, even as an unbeliever and I’m absolutely innocent of this…Busola Dakolo, who has made this false allegation and her family attended the church during the early start of the church in Ilorin in 1999. I never had any private interactions with her beyond my pastoral duties. Looking at her status and that of her husband, I am dumbfounded why she would say such a thing…As expected under the ethics of Journalism, it would have been expected that I should be confronted with these false allegations prior to any publication, instead of resorting to the social media with the intent to ruin my reputation and bring down the church…We will also not stand for false criminal allegations made against me or the church. The leadership of the church and I have briefed our lawyers to commence criminal and civil actions against all individuals making such false allegations whether directly or by proxies.”
Let me quickly add that, before penning down this write-up, I have equally listened to the recorded interview [which was published online] of Mrs. Busola Dakolo on the subject-matter of this discourse.
FACTUAL ANALYSIS:
The accusation raised by Mrs Busola Dakolo against Pastor Biodun Fatoyinbo of COZA in her published interview is that of rape. That is the soul of her complaint to the Police against Pastor Fatoyinbo. Rape is a criminal offence in every part of Nigeria under the Nigerian criminal law. Busola’s accusation against Biodun is therefore a criminal allegation. The Pastor has denied raping her. The protest staged on the 30th of June, 2019 at the Headquarters of COZA against the Pastor was on the basis of rape allegation against him. Formal complaint having been filed, expectedly, investigation would follow and ultimately may result in a formal charge of rape being slammed against the Pastor who may be arraigned for trial. Assuming the entire investigative process runs its course and results in a full blown criminal trial of Pastor Biodun Fatoyinbo, what would be the likely view of the law against the backdrop of the facts as already presented. That is the heart and soul of this academic enquiry. Shorn of morality, emotions and sentiments, we therefore move in to examine the position of our laws as they stand today in relation to the facts forming the subject-matter of the present discourse.
THE CRIME OF RAPE:
Sections 357 and 358 of the Criminal Code Act define what rape is and the consequence that awaits offenders. For good effect, I will quickly reproduce those very important Sections of our laws that are central to the disposal of the issues which this paper sets out to address. They read:
357: 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 husband, is guilty of an offence which is called rape.
358: Any person who commits the offence of rape is liable to imprisonment for life, with or without caning.
It is important to note that Sections 282 and 283 of Penal Code Law [applicable mostly in Northern States of Nigeria] equally provide in identical terms as Sections 357 and 358 of the Criminal Code Act earlier reproduced. There is no argument, looking at the statutory definition of rape that if all the accounts given by Mrs. Busola Dakolo are accepted to be correct, that Pastor Biodun Fatoyinbo’s impugned conduct fits into what rape is understood to mean by the law. For the very fact, however, that Busola’s account has not been tested before the Court and judicially accepted to be correct, we now look out what exactly the law expects of her in proof her accusations.
WHO BEARS THE BURDEN OF PROOF:
Before looking at the ingredients of rape which a prosecutor must prove before securing conviction on the offence of rape, we have to see who, under our laws, shoulders the burden of proving the rape allegation that stirred the instant raging controversy. Section 36(5) of the amended 1999 Constitution loudly affirms that: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”. Following this Constitutional provision, Pastor Biodun Fatoyinbo, in the eyes of the Nigerian Constitution, remains innocent of the rape accusation levelled against him by Mrs. Busola Dakolo until the otherwise is successfully established. Who shoulders this burden of proof and the degree of proof needed in establishing criminal allegations [like rape in the instant] are amply contained in Sections 131 to 135 of the Evidence Act. Section 131(1) of the Evidence Act provides that whoever desires any court to give judgment as to any legal right which liability is dependent on the existence of facts which he asserts must prove that those facts exist. Section 132 of the same Act provides further that the burden of proof in a suit in a proceeding lies on that person who will fail if no evidence at all were given on either side. In criminal proceedings, that evidential burden is cast by law on the shoulders of the Prosecution. Explaining the sum total of these evidential legislations, the Supreme Court held in Iko vs. State Iko v. State (2001) 14 NWLR (Pt.732) 195. 2, (2001) 7 S.C (Pt.II) 115 that : “It must be borne in mind that in all criminal cases, the prosecution has throughout the burden to prove beyond reasonable doubt the guilt of the person charge”. More pungently, in Solola v The State (2005) 11 NWLR (Part 937) page 460, the Supreme Court aptly thundered with a tone of finality that: “There can be no doubt that the onus is upon the prosecution to prove a charge against an accused person and that onus is one beyond reasonable doubt”. If there is any other lingering doubt about this position of the law, the case of Amadi vs. Federal Republic of Nigeria (2008) 18 NWLR (Pt. 1119) 275 is now called in aid where the Supreme Court restated the settled legal position to the effect that “the law is trite that the burden on the prosecution in a criminal trial which must be discharged in order to secure a conviction, is to prove the offence charged against the accused being tried, beyond reasonable doubt”. What all this sum to is that the accused person [here, Pastor Fatoyinbo] has no duty to prove his innocence. Indeed he has no business with that. This is so because the right to fair trial guaranteed by Section 36 of the Constitution includes the right of the accused to be presumed innocent until he is proved guilty and because he enjoys a right against self-incrimination, the accused cannot even at the trial be compelled to give evidence at his own trial, The State v. Muhammed Masiga (TSOLO) (2017) LPELR-43474(SC). Hear the Supreme Court again on this in the case of Commissioner of Police vs. Amuta (2017) LPELR-41386(SC) where we are taught that:
“The constitutional provision on the presumption of innocence of an accused person is sacrosanct and settled. The burden is always on the prosecution to prove the guilt of the accused and not his business to prove his innocence. He can decide to keep mute from beginning of the trial right through to the end. It is for the prosecution to make out a prima facie case against the accused through credible evidence which must be laid bare before the Court. It is the proof of hard facts that would lead to the conviction of the accused. Without any case made out against the accused, he cannot be called upon to enter his defence because in doing otherwise would undermine the constitutional presumption of innocence."
PROVING THE CASE OF RAPE:
In Adonike v The State (2015) All FWLR (Pt.772) 1631, the Supreme Court [in interpreting the legislative provisions on rape which we have earlier reproduced] interpretatively condescended the requirements that the prosecutor must prove in a rape charge to ground conviction on the following:
a. that the accused had sexual intercourse with the prosecutrix;
b. that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat intimidation, deceit, or impersonation;
c. that the prosecutrix was not the wife of the accused;
d. that the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not;
e. that there was penetration."
It is interesting to stress that of all the required ingredients which a prosecutor must prove to establish rape, penetration is said to be the most important ingredient, Okoyomon v The State (1972) 1 NMLR 292; (1972) 1 SC 21 at 33. In Iko v The State (2001) 14 NWLR (PT.732) 221 at 245, Kalgo JSC stated, on the essential ingredients of rape thus: "The essential and most important ingredient of the offence of rape is penetration and unless penetration is proved, the prosecution must fail”. In The State v. Muhammed Masiga (supra), the Supreme Court eloquently insists that “to sustain the charge of rape, the prosecution must prove that the accused's penis penetrated into the Instruments of the female person allegedly raped. That is the res in rem.”
In Upahar V State (2003) 6 NWLR (PART 816) 230, the Court of Appeal [through Obadina, J.C.A.] teaches us this:
"As stated earlier, in a prosecution for rape or unlawful carnal knowledge of a female without her consent, it is the duty of the prosecution to prove that:- (i) The accused had sexual intercourse with the prosecutrix; (ii) That the act of intercourse was unlawful, not being between husband and wife; (iii) That in giving the evidence of intercourse complete penetration is proved: see Jos Native Authority v. Allah Na Gani (1968) NMLR 8, (1967) NNLR 107. See also R. v. Marsden (1891) 2 QBD 149; The State v. Ojo (1980) 2 NCR 391 at 394. (iv) That the accused had the 'MENS REA', that is, intention to have sexual intercourse with the prosecutrix without her consent. See R. v. Kufi (1960) NMLR 1 or that the accused acted recklessly, not caring whether the prosecutrix consented, or not,. See R. v. Morgan (1976) AC 182. And, (v)The prosecution must adduce credible evidence to corroborate the complaint made by the prosecutrix."
Arising from the above requirements of the law, can any witness other than the prosecutrix [Mrs. Busola Dakolo] give evidence [at the trial of Pastor Fatoyinbo] convincing the trial court that there was “complete penetration” as the authority of The State v. Muhammed Masiga (supra) demands? Can the prosecutor “adduce credible evidence to corroborate the complaint made by the prosecutrix”? The answers to the above posers appear to be in resounding negative, Ogunbayo v. the state (2007) NWLR (pt 1035)157. Let me explain. The Complainant herself admitted that their house in Ilorin is such a big duplex that if something is happening downstairs, nobody upstairs would know what is going on. Earlier, she admitted that her Mother travelled with her younger sisters and were not at home at the material time. She equally confessed that her only senior sister who was at home was upstairs and that she was sleeping as it was early in the morning and she may have gone out the previous night with her friends. She did not inform her senior sister of the incident. She rather cleaned the living room where blood dropped and went to her Mother’s bedroom to lock up herself and sleep. No medical examination was subsequently carried out on her. The pant and the nightwear she wore were never preserved. Every other person in her life to whom she later opened up did not witness the incident. They are merely recounting what Mrs. Busola Dakolo has told them. If they step forward in the open court to testify on her behalf, all of their testimonies would not be accepted or received in evidence. Their testimonies are inadmissible being hearsay evidence. In trying to show what hearsay evidence means, the Supreme Court in Ojo v Gharoro (2006) 2 - 3 SC 105 at 113 – 114 explained that: “In most cases, hearsay evidence is to the following or like effect: "I was told by XYZ that; or XYZ told me that; or I heard that XYZ told ABC that; or I made inquiries and I was told that". In Kasa vs. State (1994) LPELR-1671(SC) the Supreme Court declared that: “…it is a fundamental rule of evidence that hearsay evidence is inadmissible”. Explaining the rationale for this posturing of the law, the Supreme Court again [speaking through Ejiwunmi, J.S.C.] in Ijioffor V. The State (2001) 5 SCM 107 2651has this to teach us:
"The hearsay rule is a very salutary rule indeed. It is a rule which is grounded upon commonsense as the focus of it is to prevent a person from being accused or found guilty of an offence which he did not commit. It is a self evident fact, malevolent people could manufacture such evidence as they would to falsely accuse persons of offences which they did not commit. By reason of this rule, courts are enjoined and indeed under a duty not to accept and/or convict an accused person upon testimony of witnesses who did not see, hear, or perceive by any other sense or in any other manner, the facts given in their testimony at a criminal trial of an accused person, as in the instant case, or even in a civil case. This rule, except for such exception as the res gestae rule and certain recognized statutory exceptions, which we are not concerned with in this case, is mandatory for all courts. Should a trial court convict an accused upon evidence adjudged to be "hearsay" evidence, an appellate court may quash such conviction, if there are no other evidence upon which the conviction of the accused could properly and safely be convicted."
Since under the law of evidence in Nigeria, no other person can testify to corroborate the rape allegation levied against Pastor Fatyinbo by Mrs. Busola Dakolo [given the presented factual milieu], how then can any Court of Law [not of sentiment] or Tribunal of Justice [not of emotion] accept the allegation of rape against Pastor Fatoyinbo, how and how? We are only left with speculations and conjectures. Busola’s oath against Fatoyinbo’s oath. A trial court must not base its decision on speculation and extraneous matters not supported by the evidence before the court as this will occasion miscarriage of justice, Isah v. State (2007) NWLR (Pt. 1049) 582 at 614, Paras. B - C (CA). In other words, the court's findings must be supported by concrete and real evidence and not speculation, Onuoha v. State (2002) 1 NWLR (Pt. 748) 406.
It is instructive to consider that where the prosecution has failed to prove the commission of the offence charged the trial Court cannot fish for an alternative verdict, Oyediran vs. Republic (1967) NWLR 122. It is only left with the option of the order of discharge and acquittal being entered in favour of the accused person, Aruwa vs. The State 6 NWLR (Pt.155).
CORROBORATIVE EVIDENCE LACKING:
Of course the law seeks corroborative evidence [outside that of the prosecutrix, the rape victim] before a Court of law could come to the conviction of an accused standing trial for rape. Why is it so, I or one may ask? The word ‘corroborate’ is derived from two Latin words “cor” and “robur” which means “to strengthen”. Lord Reading in Kingv. Baskerville 4. 2 (1916) 2 K.B. 658 appropriately defined corroboration as: “some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.” In Nwambe v. State (1995) 3 SCNJ 77, the Nigerian Supreme Court defined corroboration as “the confirmation of a witness’ evidence by independent testimony”. In R. v. Whitehead [1837] NSWSupC 10, Lord Herwart CJ stated that to corroborate is to “strengthen” and not to “repeat”. In establishing a rape charge [such as the case here against Pastor Fatoyinbo], the Supreme Court has expressed the view that where an accused person denies the charge [as Pastor Fatoyinbo has denied in the instant case], the corroborative evidence which the court must look for is that of medical evidence showing injury to the vagina. Now listen to this:
On the issue of corroboration in rape cases, I am satisfied to express the view that where an accused person denies the charge, the evidence of corroboration which the Court must look for is the medical evidence showing injury to the vagina or to other parts of the body of the prosecutrix which may have been occasioned in a struggle and semen stains on the clothes of the prosecutrix or that of the accused or on the place where the offence was alleged to have been committed
[LUCKY v. STATE (2016) LPELR-40541(SC)]
Needless to say that there was/is no medical evidence available in the case of Mrs. Busola Dakolo as she did not mention going to any hospital for such examination after the incident. On this score alone, that charge cannot be proved, on the state of the law.

All this long story for a RAPIST?

@OP: You're passing judgment on a sensitive matter that a competent Court of law has not adjudicated on.
Why ?
Besides, who told you the complainants don't have evidence to prove their case?

Janosky:
@OP: You're passing judgment on a sensitive matter that a competent Court of law has not adjudicated on.
Why ?
Besides, who told you the complainants don't have evidence to prove their case?

A case that's already been decided by the media? Why didn't complaint go to the court first instead of the media?

The Op based his analysis on the information given by the accuser.

At the end, Mrs Dakolo might just be sue for N2b damages if she looses the case

I understand your points and language @Op, in court it is not about what you know it is about what you can prove. I wish she has consulted with a sound lawyer before coming out because law is an ass.
Anyway, I hope she has tangible evidences.
By the way, so there's no constitutional provision for boys and men who were rap*d by women or girls, I'm surprised that is not put into consideration. There's no day egalitarianism will ever work!

This table is going to turnaround against Mrs Dakolo. She lacks facts and evidence. She was overwhelm by her emotions. The law is an assh*le and it's sent so many innocent people to jail. #saynotorape