I go through it & hopefully stem the tide of misinformation. This is going to be long.
On 27 June 2019, Busola’s interview with Chude Jideonwo was released on YouTube. In the interview, she movingly and, to many of us, convincingly spoke of her 2002 ordeal with Biodun Fatoyinbo.
She spoke of how, on 2 different occasions, in September 2002, Biodun forcefully had sexual relations with her in circumstances where she did not give consent. The legal term for what occured in each encounter is rape. But this thread is not about rape.
Rape is a criminal matter and it is for the police to investigate and see to it that the prosecution has enough to build a case on. Sometime in July earlier this year, the matter was reported to the police, who opened an investigation on the rape allegations.
On 6 Sept, a civil suit was initiated against Fatoyinbo. This was not a criminal case & it was NOT a case of rape. But it was predicated on the same facts of the alleged rape. It was a case of intentional infliction of emotional distress. This is described as tort, a civil wrong.
For the wrong to be established, however, there has to be more than an implicit acceptance of what caused the emotional distress. Indeed, one of the things Busola asked the court to do was to declare that Biodun violated her.
That he deliberately and forcefully had non-consensual sexual intercourse with her (I’ll use ‘violate’ and ‘violation’ to describe these heinous acts) and that this violation has caused her and continues to cause her emotional distress.
It is important to state here for those who are not legally-minded & who might think less of anyone who does not explicitly call out the actions as rape, that within the confines of the civil suit, rape does not feature & the lawyers carefully drafted the case with that in mind.
Had the court dismissed the preliminary objection and gone ahead with the substantive case, and concluded with a declaration that Biodun violated Busola, this would NOT have established to the criminal standard that it was beyond all reasonable doubt that Biodun raped Busola.
The court’s declaration would have been a statement that, on the preponderance of the evidence, it was more likely than not that Biodun violated Busola & inflicted emotional distress on her. When something is more likely to have happened, doubts may linger whether it happened or not.
But for the sake of a civil suit, where the freedom or life of the defendant is not at stake, those doubts are dispelled if, on balance, the event in question is a mere 51/49 in favour of it to have happened.
What this means is that someone may be found not guilty of a crime because the level of proof is high and the prosecution fails to meet that burden, but the same person, on the same set of facts, may be found liable in civil proceedings.
This might still seem like a mystery to many, so I’ll try to use an example. The example I usually give to clarify this is the OJ Simpson case. For those not familiar with it, please do a Google search.
OJ Simpson was found not guilty of the murder his ex, Nicole Brown-Simpson. But he was later found liable in the civil court and ordered to pay $20 million to the deceased’s family.
In a criminal case, the prosecution is required to prove to such an extent that all doubts (not just any silly doubt) are dispelled. If you’ve spent time on Twitter, you’ll know that, even for obvious things, people raise silly excuses/reason why something isn’t what it appears to be.
The law is not concerned with silly doubts. The term used is reasonable doubt. All reasonable questions about whether the accused committed the alleged crime is to be answered & there should be no reasonable doubt that the accused has committed the alleged crime. It’s a high standard.
In a civil case, it is not so high. A matter is proved if the court is satisfied the evidence shows that, although one cannot say with full certainty that the facts have been established, there is enough to decide which of the competing facts is more likely the truth or truer.
Let’s bring that theoretical underpinning to the Busola fact scenario: If, after considering all the available evidence, the court finds that Busola’s account rings truer than Biodun’s denial, then the court will find that the allegation that Biodun violated Busola is proven.
Again, let’s be clear here. That is not proof of rape, which has to be proven to a higher criminal standard. Note the use of the word violated.
I have taken time to go through the standards of proof because it is easy to be confused by the fact that a civil suit is predicated on the same facts as a rape allegation. But the civil suit is not to be treated in like manner as the rape allegation.
Even a jurist could get carried away. Indeed, this was what happened in the ruling delivered in the Busola case on 14 November 2019.
As elementary as the distinction is between rape and what Busola’s lawyers were asking the court to declare, the learned judge just couldn’t get his mind off the rape allegation.
In his ruling, he expressed the view that Busola’s case was proceeding on the back of rape & no matter how he subsequently, and in my view, tenuously & disingenuously, claimed to restrict himself to the civil part of the claim, he had prejudiced himself with the criminal element.
Now, let’s move on to how this case proceeded once it was initiated on 6 September 2019.
As elementary as the distinction is between rape and what Busola’s lawyers were asking the court to declare, the learned judge just couldn’t get his mind off the rape allegation.
In his ruling, he expressed the view that Busola’s case was proceeding on the back of rape & no matter how he subsequently, and in my view, tenuously & disingenuously, claimed to restrict himself to the civil part of the claim, he had prejudiced himself with the criminal element.
One of the misconceptions about the court’s ruling was that it was a determination of the merits of the case. There was the regular crew of people who jumped to the conclusion that Busola lied. There were those who appeared sympathetic but thought she just couldn’t prove her claim.
The court did not actually consider the main issue brought before it. Let’s assess why this was the case.
Rather than come clean to court to defend the allegations against him, as anyone claiming to be innocent would do, Biodun and his lawyers decided to go tactical.
On 20 September 2019, they filed a Notice of Preliminary Objection. Why face the music when you can have the case thrown out on a technicality before it is heard? The technicality deployed as a preliminary objection by Biodun’s legal advisers is something called limitation.
To describe how this works, I’ll call in aid the words of 2 renowned jurists, Lord Denning & Diplock.
It is believed that if a case happened long ago, especially cases that involve disputed oral evidence, then it becomes hard to do justice to it if too much time has passed.
The public policy reasons for this are things like the fact that witnesses might not remember things clearly and evidence might have been lost.
Biodun’s lawyers argued that in line with s8(1) and (2) of the Limitation Act of the Law of the Federal Capital Territory 2006, the cut-off point for the case was 3 years. Failure to bring the case within 3 years of the date of the wrongdoing means it has become statute-barred.
Alternatively, his lawyers argued that the case was covered by s7(4) of the same Act which has a 6-year cut-off period. The incident happened on Sept 02, so the cut-off point was either Sept 05 or Sep 08. In either case, if the statute is applicable, Busola’s case cannot be heard.
But this limitation rule, as with most legal rules, has exceptions. One such exception which Busola’s lawyers argued was that in cases of continuing wrongs, the limitation does not apply. They sought support for their position in the case of Aremo II v Adekanye.
They argued that because Busola continues to suffer emotional distress there can be no cut-off point by which to limit her claim.
They also argued that when Biodun denied in his press release that he violated Busola, that act of denial constituted a fresh infliction of emotional distress & the date of the press release was another trigger point in addition to the continuing impact of the Sept 02 violation.
Biodun’s lawyers responded to the continuing injury point with Obiefuna v Okoye 1961, Nwankwo v Nwankwo 2017 & INEC v Ogbadibo 2016, all of which suggest the continuance of injury means the continuance of legal injury & not merely continuance of the injurious effect of the legal injury.
One would think the 14 November ruling would address these two contentions, but rather bizarrely, the judge was completely silent on this point. The continuing injury exception is a key basis upon which Busola’s case was advanced and the judge curiously left it unaddressed.
This, for me, amongst other weaknesses, is where the Court of Appeal will fault the judge’s decision. It is, however, difficult to tell where the Court of Appeal will ultimately swing, even if they find the silent omission by the judge to be fatally erroneous.
Does the case of Aremo II v Adekanye assist Busola or does her case founder in the face of the holding in Obiefuna v Okoye? This will now be for the Court of Appeal to decide. Fingers crossed, people. There might have been a delay in this case but this delay might not be a denial.
