Busola Dakolo: 2 Reasons Her Civil Suit Suffered Technical Knockout.

Recall that in an exclusive video interview with YNaija on 28 June, 2019, Mrs. Busola Dakolo (popular photographer and wife of musician, Timi Dakolo) recounted how she was allegedly raped by Pastor Biodun Fatoyinbo, Senior Pastor at the Commonwealth of Zion Assembly (COZA), when she was 16.

Aside the reports of the involvement of the Nigeria Police in the ongoing investigation and possible criminal prosecution, Mrs. Dakolo caused a civil action to be filed on her behalf against Pastor Fatoyinbo at the High Court of the Federal Capital Territory, Abuja Division – Suit No. FCT/HC/BW/CV/2817/2019: Mrs. Busola Dakolo v. Rev. Biodun Fatoyinbo on 19th September, 2019.

In the suit, Mrs. Dakolo claimed some reliefs against Pastor Fatoyinbo based on the “Tort of the Intentional Infliction of Emotional Distress”. Tort simply means a civil wrong done by one person to another. It is of different kinds. Counsel to Mrs. Dakolo did not specifically allege “rape”. This is because rape is a crime. There is a thin line between crimes and torts. Interestingly, the same conduct can constitute both a crime and a tort. The law allows the prosecution of a crime and at the same time, pursing civil claims. For instance, it is possible to prosecute a person for rape and the same time, sue the person for a tort like intentional infliction of emotional distress, assault and battery, etc. The Judge in his Ruling of 14th November, 2019 appeared to subtly criticise Counsel to Mrs. Dakolo for not expressly mentioning “rape” in the otherwise civil suit. Indeed, Mrs. Dakolo reserves the right to pursue her civil claims under the Tort of the Intentional Infliction of Emotional Distress and His Lordship did well to confine himself to that. His Lordship lacks the powers in his civil jurisdiction to treat rape matters strictly so called, being a criminal allegation. It is settled that a single conduct is capable of triggering more than one cause of action.

Nevertheless, the above is not why Mrs. Dakolo’s case hit brick wall in Court. Her suit was considered dead on arrival. We shall consider below the two reasons for this holding.

1) Case was not filed in good time

Pastor Fatoyinbo through his Counsel filed a defence to the suit and a preliminary objection to the case on the ground that the case was statute-barred. In other words, Pastor Fatoyinbo contended that Mrs. Dakolo was supposed to commence the case within six (6) years from when she claimed the alleged events occurred (23rd and 26th September, 2002 – over 16 years) and when she eventually filed the suit on 19th September, 2019. Defence Counsel relied on the Limitation Act of the Laws of the Federal Capital Territory Abuja (“the Act”). The Court considered this argument and the provisions of Sections 7 (4), 8 (1) & (2) and 68 of the Act and held:

“Indeed after fastidiously reflecting on these provisions of the Limitation Act and juxtaposing it with the Claimant’s Writ of Summons and her Statement of Claim, I have no difficulty in finding as a fact that no matter how one wishes to calculate the Claimant’s cause of action and no matter the calendar deployed, all her claims as projected by her Writ of Summons and Statement of Claim have become stale being clearly caught up by the combined provisions of the above identified portions of the Limitation Act that extantly holds sway in the Federal Capital Territory, Abuja.”

Being aware of the provisions of the Limitation Act, Counsel to Mrs. Dakolo had argued that the suit is not caught by the Limitation Act in that Pastor Fatoyinbo granted a press conference on 28th June, 2019, denying the alleged acts of defilement of Mrs. Dakolo and that the said denial caused Mrs. Dakolo emotional distress. The smart move here is to rely on the press conference of 28th June, 2019 to revive the case. Well, the Court was not persuaded by this logic. Musa J., after due consideration, stated:

“Let me say quietly that such unnecessary hairsplitting, wind-chasing and semantic rigmarole by the Claimant’s Counsel amounts to stretching of logic to a ridiculous extreme which is rather unhelpful to the case the Claimant strove to push forward in this Court.”

The Court concluded that Mrs. Dakolo’s claims are all statute-barred and that the doors of the Temple of Justice are permanently shut against them forever, as they have become dormant and stale!  Musa J. explained the basis for this:

“The essence of a fair trial will on the premise of this pleading, which are dormant and stale be defeated. I must caution that dormant claims, such as this, have injustice written all over it. No matter how one views the claim, having compassion, that an issue such as rape is pleaded herein, it is my view that notwithstanding the statute of limitation, it will occasion a grave miscarriage of justice to ask the Defendant to defend an action that is well over 16 years. Hence the claims carry more of cruelty in them, than justice. There are no new facts resurrecting the broken chain of causation in the instant action. Where, as in this case, the Claimant ought to demonstrate the reason why the action was not filed for over 16 years. This she ought to have done by claiming, for instance, due to DNA evidence, they have been able to discover new facts that were allegedly not available and tie the said DNA to the Defendant. This is not the case in the instant action.”

While we agree with the Learned Judge on his Lordship’s conclusion that the case is caught by time limitation, it is difficult to understand the reason his Lordship described the claims thus: “The claims carry more of cruelty in them, than justice.” More so, in the last paragraph of the Ruling, Musa J. was of the view that the case is a “Vehicle of judicial intimidation“. His Lordship clearly appears to have totally disbelieved the veracity of a case the Court never heard and determined on the merits. This is purely, with respect, a bit out of line. When a case fails because it was not filed within time and so becomes statute-barred, it simply fails on that note notwithstanding whatever merits it may have.

2) Courts have no nerve for emotions

The Court expressed the view that Mrs. Dakolo’s case smacks of more emotions than reason. Indeed, we had earlier observed that Judges are trained to stand above sentimental considerations and suppress emotions in determining cases. In His Lordship’s Ruling, Musa J. reiterated:

“In passing, I observe that what we are now left with in this suit is sentiment. This suit is soaked in emotions and ferried into this Court by the Claimant riding on the thick clouds of burgeoning sentiments…with every intent of submerging the Defendant in the miasma of its catastrophic dust. Time and again courts have persistently posited that emotions and sentiments, no matter how they are dredged up, and even public opinion do not command any place in the adjudicatory processes.”

How precisely did His Lordship come to the above conclusion? The matter never went to trial. With the greatest respect, the conclusion suggests more of a preconceived position rather than one arrived at by a careful and thorough hearing and determination of facts and evidence, which was not possible in this case. Interestingly, the statement by the Court (which, ironically, equally sounds somewhat emotional) is a mere obiter and nothing more.

Conclusion

The lesson is clear once again. No matter the difficulty, it is always better to summon the courage to pursue one’s case on time. Delay has a lot of consequences.

Above all, it must be borne in mind that it is not every time a case fails in Court it means the case is totally frivolous and lacking in merit, especially cases that suffer technical knock-out like the instant case of Mrs. Dakolo. Whatever the case, the veracity or otherwise of the story of Mrs. Dakolo remains a mystery to us all. 

 

 

Featured Image Credit: Dailypost.ng



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.
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