By, Peniela Akintujoye Esq.
This tweet is in response to the tweet of my brother Fisayo Soyombo (@fisayosoyombo) and also Segun Awosanya (@segalink) on the subject. Both men clearly insinuated that the ruling is a subversion of justice. I disagree.
First I have the highest respect for the two men and secondly maybe I should state publicly for the first time that I actually believe the story of Busola Dakolo. But that’s not the issue here. The issue is a misinformation of the public that the court has subverted justice.
Before the court can adjudicate on a matter, there is a preliminary condition called “the cause of action.” There must be a cause of action – the existence of certain facts which constitute the essential ingredient of an enforceable right. For there to be a cause of action therefore you must be complaining in respect of an enforceable right. For a right to be enforceable, it has to have been recognised under common law or created by specific statutes. The implication of this is that if the facts that constitute your complaint does not fit into the existing mould of an already recognised enforceable right, you do not have a cause of action.
Busola Dakolo sued Revd Fatoyinbo for “intentionally inflicting and causing her continuous emotional distress” through the aftermath of rape. This “intentional infliction of emotional distress” is a legal right unknown to either our inherited common law or any Nigerian statute. And all the facts on which the supposed “cause of action” are based are facts relating to a rape or indecent assault that is yet to be proven.
Let’s even assume that “intentional infliction of continuous emotional distress” were an enforceable right, to succeed in the case, the claimant must establish what occasioned the emotional distress. In this case, that would be rape or indecent assault. How can this be established in a civil action?’
I however agree that the court ought to have first determined if there was a cause of action before it could state that the matter was statute barred. Statute barring is always premised upon the nature of the cause of action. Statute barring does not arise when there is no cause of action. Whichever way, I’m convinced that a preliminary objection will knock off the case.
In the official statement made by the claimant’s counsel, they admitted themselves that the cause of action is novel. That’s a fair comment. There is however an opportunity to argue the case to the Supreme court and see if the court will agree to recognise “intentional infliction of continuous emotional distress” as a cause of action in our legal system. Gani did this kind of thing and succeeded severally.
On a final note, we have to exercise restraint and seek clear legal advise before we drag the judiciary into the mud anytime. It’s not every time you lose your case that the judge must have collected a bribe. Popular figures have an even greater duty to ensure they do not misinform the public and demonize democratic institutions unjustly. Every case has to be treated on its merit.
The real problem here is that the Dakolo-Fatoyinbo case by all its ingredient is purely a criminal case. A civil suit will hardly avail the claimant of any remedy.