BREAKING THE SHACKLES OF CHILD SEX ABUSE: LAWYER SHATTERS THE SILENCE

ACHIEVING RESTORATIVE JUSTICE FOR THE VICTIMS OF CHILD SEXUAL ABUSE IN NGERIA: THE REDEMPTIVE POSSBILITIES OF VICARIOUS LIABILITY ACTION

BY: JOHNMARY CHUKWUKASI JIDEOBI, Esq. ([email protected].)

PREFATORY REMARKS
More often than not, given the worthy attention being commanded by numerous anomalies of our leaders and our unending desire to stop them in their ugly paths, we tend to close our eyes to the way and manner the rights of the Nigerian child are being bruised daily with little or no effort to end the impunity of the abusers or at least rise to their defence. That is not good enough. In fact, it is bad that it is so. We must reverse the trend. We must heed the wise counsel of Eglantne Jebb. Hear him: “We cannot leave defenseless children anywhere exposed to ruin – moral or physical. We cannot run the risk that they should weep, starve, despair and die, with never a hand stretched out to help them.” In making the present expository, I am stretching my helping hand to those abused Nigerian children. And by reading this piece down to the solutions proffered at the end, you (my reader) are indeed doing more than lending a helping hand to those serially abused Nigerian children without anyone to run to. Together we will make the environment more enabling for the achievement of their life’s dreams. Let me quickly add that the Child Rights Act, 2003 acknowledges any child under the age of eighteen (18) as a child under the Act.

STATEMENT OF THE PROBLEM
In 2012, a global survey by The Economist Intelligence Unit rated Nigeria as one of the worst countries in the world for children or for a child to be born (excerpt from the opinion of Bayo Olupohunda published on: the punch online newspaper). Without boring my reader with the outcome of many expert reports examined by this writer on different forms of child abuse in Nigeria, it is sufficient to state that we are informed by the outcome of such extensive examination that the Nigerian child has been having it rough for far too long, most times in the hands of the very persons who ordinarily ought to be his first line of defence and as a result the child is either too devastated or afraid to complain of his horrible experience.

DEFINITION OF TERMS:
According that Aristotle, for any discussion to be intelligible, there must be definition of terms. In keeping with this guideline, I make haste to define the key words forming the touchstone of our discussion in this piece.
(a) Physical Violence include but not limited to, scratching; pushing; shoving; throwing; grabbing; biting; choking; shaking; slapping; kicking; punching; burning; use of a weapon; forced sexual activity; injury or death from a weapon and use of restraints or one’s body, size, or strength against another person (ANA 1991).
(b) Psychological Violence take the form of physical intimidation, controlling through scare tactics and oppression, harassments, being picked upon, laughed at, unfair treatment, constant criticism and such likely acts (Wikipedia 2007).
(c) Sexual Violence includes all forms of sexual abuse, sexual assault, pornography, prostitution, trafficking for sexual purposes, sex tourism, early and forced marriage and enslavement (UNICEF 2006)
(d) Gender-based Violence refers to injustices and all forms of unequal treatment as a result of either being a male or a female (e.g giving a boy stricter punishment than a girl for the same kind of offense just because he is a boy) (Regional Consultation on UN Secretary General’s Report 2005).
(e) Health – related violence refers to any form of stigmatization, abuse, neglect, discrimination and so on as a result of a person’s health status (e.g preventing an HIV positive pupil from participating in group work or play). It is a coined word to define every form of violence relating to health.
(Culled from the Assessment of Violence against Children at the Basic Education Level in Nigeria by Federal Ministry of Education in collaboration with UNICEF and published on: https://www.unicef.org/nigeria/ng_publications_Violence_reportOAU.pdf)

THE OBJECTIVE OF THIS WRITE-UP
To combat the perennial evil of child abuse and promote child’s rights, the global community came up with the United Nations Convention on the Rights of the Child (henceforth in this article called the CRC) which today enjoys the reputation of being the most rapidly and widely ratified international human rights treaty in history. The CRC came into force on the 2nd September, 1990. Back home, the Federal Government of Nigeria has domesticated the said CRC by enacting the Child Rights Act, 2003 (hereafter in this discuss called CRA or the Act) thereby setting the tone for the individual component states to follow suit by domesticating the Act so that it would acquire the force of law in their respective domains. It is noteworthy that the CRA criminalises all forms of child abuse and makes copious provisions for penalties upon conviction by the court. The humble attempt of this contribution is limited to showing that, notwithstanding the laudable and lofty provisions of the CRA; the CRA is fundamentally flawed in making no provision for the compensation of the victims of the acts outlawed by the Act. Beyond this unfortunate legislative gap, this paper will stridently demonstrate that the victims of child abuse in Nigeria can look outside the orbit of the deficient CRA to find solace, comfort and compensation in the realms of Torts Law so that the short-changed Nigerian child would no longer be at the mercy of the (often non-challant or integrity-challenged) prosecutor who may ultimately bungle the case in court and further pushes the abused child down into the abyss of misery and compound his woes. This article will pay special attention to sexual abuse of children in Nigeria and how the perpetrators could successfully be held accountable to the victims by way of compensation through the pathway of vicarious liability in Torts law.

OUR CASE STUDY:
Since this write-up is said to have bias for sexual abuse of children in Nigeria, I have chosen a sexual abuse case to serve as our case-study. We shall now consider the case of Major Bello Magaji v. Nigerian Army reported in (2008) 8 NWLR (Pt. 1089); (2008)34 NSCQR Pt I 108.

SUMMARY OF THE FACT:
Major Bello Magaji, a former military officer attached to the Lagos Garrison Command, was convicted for serial homosexual rape of four students (teenagers) of the Army Cantonment Boys Secondary School in Ojo Cantonment in Lagos. The teenagers were Mohammed, Joseph, Emmanuel, and Isaac. The common evidence of Emmanuel and Joseph is that they were asked to drink a bottle each of small stout which intoxicated them; it was in their state of intoxication that the appellant performed the dirty act of sodomy on Emmanuel, and others.
Perhaps it is better to hear from the mouths of Emmanuel and Joseph to appreciate the ordeal or pain they went through. Emmanuel as PW1, said in his evidence in-chief at pages 23 and 24 of the Record, and I will quote the evidence in very large parts:

"When I went inside, I saw Joseph with Oga Magaji. Then Oga asked me my name, and then I told him my Joseph (sic) said yes so he asked Joseph if he knew me and Joseph said yes so he said I should go inside and sit down. Then when we went inside, I saw Mohammed and he said it has been long he was inside, he overslept. Then I asked Joseph the time they came there. Joseph said it has been long, that Mohammed took a bottle of Gulder that's why he went asleep. By then, Sam came in, brought a bottle of small stout and gave me to drink, but I said I didn't want to drink because I was not used to it, but he said if I don't drink it I wouldn't work for Oga, he will not accept me. Then he opened the small stout for me. I took a little out of it and it was bitter, I couldn't take it, so I gave it to Joseph Unigbe who took the rest. After 5 minutes my eyes were turning me Joseph said me and Mohammed should go inside the bedroom to take a bath so that our eyes will stop turning us we accepted took our bath and when we wanted to put our cloths on, Joseph brought out one Army singlet, shirt and nicker, and a night gown and he said we should put them on we asked him why. He said we could not go home that patrol will hold us, that we had to sleep till the following day so we accepted and put them on. Then he showed us the guest room that we should go inside that that is where we were going to sleep. All of us went inside the guest room, suddenly, Joseph went outside saying he was going to collect something from the sitting room. When he went out, just immediately he went out then Maj. Magaji came inside the room. When he came inside, because I and Mohammed were sleeping on the bed he sat on the bed and asked us what we were discussing, we said nothing. It was then he removed his singlet and removed Mohammed's own and started romancing Mohammed's body and used my hand and put it on his tommy and said that I should be romancing his tommy, After that he off his nicker and off Mohammed's nicker and he sexed Mohammed through the anus. Then Mohammed shouted that this wasn't what Joseph told him that he was coming to do there. Then Oga stood up and Mohammed went out. Before Mohammed went out, he told Mohammed to bring a white container. When Mohammed brought the container the container was filled with cream, so he used the cream to rob our pains; I and Mohammed and then Mohammed went out then Oga wanted to use me too. He turned me upside down and used his penis and put it into my anus then, I shouted that I can't take it that is not what Joseph told me too then he said I should go out."

Joseph, in his evidence in-chief, said at page 28 of the Record:
"There was a day, it was on a Friday evening, I was standing in my area, then Oscar called me and said that I should go and take bathe that he will take me to somewhere. I thought that it was joking matter because I use to fear that boy before, but I took my bathe. After taking my bathe, he gave me transport fare to go to camp 1, at the offrs' mess. He said he was coming to meet me there. He told me that he, was taking me there to go and do a contract of ridges not knowing that he was taking me there to go and do another thing when we enter Maj. Magaji's house, they gave me small stout to drink. I said no that I have not tried it before. They said I should try it that it is only a bottle of small stout. When I drank it, it was bitter so I told them I can't finish it but they urged me to finish it. After finished drinking my eyes started turning me. Then the offr told me to go into his bedroom and lie down so that my eyes will steady. I went inside and lay on the bed. In the night the offr came into the room and started romancing my body so I was thinking within me, ah, this man is a senior offr, how can he be doing a thing like this but I was afraid to speak out so he told me to lie down on the floor and turn my back, then I refused I told him I can't do that, so he brought a container of cream and said I should be robbing the cream on his penis. After sometime, I told him I had to be going because it was getting late in the night. He said I shouldn't worry that I should go and bath. After my bath he gave me N1500.00k and said I should give Oscar N500.00k for bringing me. Then when I came out I gave Oscar N500.00k and it remained N1000.00k. Out of the N1000.00k Oscar collected N100.00k and it remained N900.00k. From the N900.00k, I bought things paid small small credit I was owing and bought school uniform for myself."

THE JUDGMENTS OF THE COURTS
The General Court Martial (being the trial court/court of first instance) convicted the appellant and sentenced him to seven years. His appeal to the Court of Appeal was dismissed. His further appeal to the Supreme Court was equally dismissed by the Supreme Court with commendable venom.

MAKING A CASE OF DAMAGES FOR VICTIMS’ COMPENSATION:
It has to be observed that the Appellant, Major Bello Magaji was arraigned before the General Court Martial on 6th February, 1997 on a charge of sodomy contrary to section 81(l) (a) of the Armed Forces Decree 1993. A thorough examination of the Armed Forces Act, Criminal Code Act, Penal Code Act, Child’s Rights Act and such other penal legislations seeking to punish offenders who sexually abuse teenagers in Nigeria would sadly reveal that apart from the sentence of imprisonment or fine directed at the offender, nothing is said about the compensation of the victim of sexual abuse who would have to live with the psychological scare and trauma all the rest of his life. A glaring example is to look at the sections establishing offences and corresponding punishment under the Act. Let us look at these two sections bearing directly on the interest of this discussion:
“31. Unlawful sexual intercourse with a child, etc.
(1) No person shall have sexual intercourse with a child.   (2) A person who contravenes the provision of Subsection (1) of this section commits an offence of rape and is liable on conviction to imprisonment for life.   (3) Where a person is charged with an offence under this section, it is immaterial that‐   (a)   the offender believed the person to be of or above the age of eighteen years; or   (b)   the sexual intercourse was with the consent of the child.
33.   Other forms of exploitation
(1) A person who exploits a child in any other form or way not already mentioned in this Part of this Act which is prejudicial to the welfare of the child commits an offence.   (2) A person who commits an offence under subsection (1) of this section is liable on conviction to a fine of five hundred thousand naira or imprisonment to a term of five years, or to both such fine and imprisonment.  

Reading through the above sections (which are at the heart of our discussion), one would readily see that no provision is made for the perpetrator (convict) to make reparation to his victim. Without sounding immodest, a diligent combing of the entire Act by this writer does not reveal anything to the contrary. This further reinforces the reason why neither Major Bello Magaji nor the Nigerian Army was compelled by the Court to make reparation to the victims of the act which the Supreme Court itself eloquently and instructively described as “beastly, barbaric and bizarre”. In fact on a very sad note, despite the gravity of the atrocity committed by Major Bello Magaji, in March, 2013, Nigerians woke up to the shocking realization that former President Goodluck Jonathan, granted state pardon to Major Bello Magaji alongside the former Governor of Bayelsa State (who is now late). The exercise of prerogative of mercy enshrined in our Constitution no doubt belongs exclusively to the President. (http://www.premiumtimesng.com/news/125432-jonathan-pardons-homosexual-rapist-triggering-fresh-controversy.html) But it is rather scandalous and boggles the mind that the same President who took time to go through Major Magaji’s case to consider him worthy of state pardon was not equally thorough and compassionate enough (the father that he is) to consider adequate compensation to those defenseless Nigerian children ghoulishly violated by Major Bello Magaji.

VICARIOUS LIABILITY ACTIONS TO THE RESCUE:
Vicarious liability in tort requires, first, a relationship between the defendant and the wrongdoer, and secondly, a connection between that relationship and the wrongdoer’s act or default, such as to make it just that the defendant should be held legally responsible to the claimant for the consequences of the wrongdoer’s conduct. (See Lord Toulson in Mohamud v. WM Morrison Supermarkets plc [2016] UKSC 11). The common law principles which govern the relationship of an employer and his employee in respect of torts committed by the latter is well stated by I.T. Muhammad, J.S.C. in R. O. Iyere v Bendel Feed and Flour Mill Ltd. (2008) LPELR- 1578 (SC).

Vicarious liability is a longstanding and vitally important part of the common law of tort. A glance at the Table of Cases in Clerk & Lindsell on Torts, 20th ed (2010) shows that in the majority of modern cases the defendant is not an individual but a corporate entity. In most of them vicarious liability is likely to be the basis upon which the defendant was sued. The policy objective underlying vicarious liability is to ensure, insofar as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim. Such defendants can usually be expected to insure against the risk of such liability, so that this risk is more widely spread. It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability. (See Lord Philips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56.)
The development of the doctrine of vicarious liability can be traced to a number of factors; in part to legal theories, of which there have been several; in part to changes in the structure and size of economic and other (eg charitable) enterprises; and in part to changes in social attitudes and the courts’ sense of justice and fairness, particularly when faced with new problems such as cases of sexual abuse of children by people in a position of authority. (See Lord Toulson in Mohamud v. WM Morrison Supermarkets plc [2016] UKSC 11).

In Bazley v Curry (1999) 174 DLR (4th) 45. McLachlin J summarised the public policy justification for imposing vicarious liability, at para 31, as follows:
“The employer puts in the community an enterprise which carries with it certain risks. When those risks materialize and cause injury to a member of the public despite the employer’s reasonable efforts, it is fair that the person or organisation that creates the enterprise and hence the risk should bear the loss.”

MARRYING THE PRINCIPLE WITH OUR CASE STUDY:
The practical application of the above stated principle in achieving restorative justice for children sexually abused by persons especially in authority looking through the facts of our case-study is to sue both the main tortfeasor and his employer. For instance, in Magaji’s case, the abused children could have brought a civil action under the law of tort against Major Bello Magaji who is the tortfeasor for unlawful trespass to their persons and seeking monetary damages in compensation. In such an action, a case of vicarious liability would be made against the Nigerian Army being the employer of Major Magaji. Indeed, it is to the employer of the tortfeasor that such victims would be directing their claims for damages at since the employee-tortfeasor might be incapable to satisfy the judgment debt. The reason for this approach was laid bare by the Supreme Court of the United Kingdom in the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56.

SUMMATION:
In the United Kingdom, unlike in Nigeria, criminal proceedings may lead to compensation of the victim by the offender without a separate civil action, for since 1971 the criminal courts have had power to order an offender to pay compensation to his victim, and the court is now required to give reasons, on passing sentence, if it does not make a compensation order. Once the tort of trespass to person (just like every other tort) is successfully established by a victim of child sex abuse, the defendant is consequentially condemned to damages in compensation to the plaintiff.
It is because of the absence of compensatory provisions for crime victims in our penal laws that this paper promotes, as an alternative, civil actions in trespass to person in order to recover damages in cases of child sex abuse. Trespass is a wrongful act, done in disturbance of the possession of the property of another, or against the person of another, against his will. See Omorhirhi & Ors v. Enatevwere (1988) LPELR – 2659 (SC). Trespass to the person means a direct or an intentional interference with a person's body or liberty without his consent. Acts of trespass to the person are generally crimes as well as torts. Child abuse falls within the category of trespass to the person.

Damages has been defined to mean ‘a sum of money awarded to a person injured by the tort of another’ See Shell Petroleum Devt. Co. (Nig.) Ltd v. Telbo & Ors (1996) 4 NWLR (Pt. 445) 657 at page 680. It is in general that pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another whether, that act is a default or breach of contract or tort. See Umeje & Anor v. Shell Petroleum Devt Co. (Nig.) (1975) 9-11 SC. 155 at 162. Research has shown that massive child sex abuse abound in all-boys and all-girls secondary school boarding facilities. These homosexual/lesbian child rapes/abuses have always been perpetrated by the “teachers” in the employ of the Boarding Schools. In majority of the cases, the ‘teachers’/culprits almost always get away with their amoral excesses by using their intimidating position of authority to subdue the victims and suppress the unholy acts. Unfortunately, most of these boarding facilities where these unfortunate child sex abuses are perpetrated (on a scandalously large-scale) are owned and run by large religious organisations. The victims are therefore compelled to live with the psychologically trauma of their unfortunate ordeal all through their life being too afraid to open up for the fear of uncertainties.

LEAVES FROM FOREIGN JURISDICTIONS
In the United Kingdom, many years after leaving college and coming to terms with the full implication of the abuses committed against them as minors by their college teachers, many men and women have gathered themselves together to form an association with a view to bringing civil actions and claim damages in vicarious liability against their former colleges for the sex abuses they suffered in the hands of their former teachers. Most of the actions examined show a remarkable success recorded in the courts by the victims and has in turn put the management of such boarding facilities on their toes.

A glaring example is the facts of the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56. The facts are summarized below;
In 1680, in the city of Rheims, Jean-Baptiste De La Salle founded an Institute known as the Brothers of the Christian Schools (“the Institute”). The members of the Institute are lay brothers of the Catholic Church. They are now to be found in many countries, including the United Kingdom. Their Rules, approved by Papal Bull in 1724, provided that

“they should make it their chief care to teach children, especially poor children, those things which pertain to a good and Christian life.”

That has remained the mission of the Institute and the mission and “apostolate” of each brother. The appeal before the UK Supreme Court was concerned with the legal implications of acts of physical and sexual abuse committed, or alleged to have been committed, by brothers who were, or should have been, pursuing that mission at a residential institution at Market Weighton for boys in need of care called St William’s (“the school”). The claims in this group action were brought by 170 men in respect of abuse to which they allege that they were subjected at St William’s between 1958 and 1992. The Supreme Court took time to review a similar decision earlier handed down by the Court of Appeal in the case of JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 . That case was concerned with the preliminary issue of whether the Diocesan Trust could be vicariously liable for acts of sexual abuse committed by a parish priest in the diocese. The claimant in that case alleged that when, as a young girl, she was resident in a children’s home run by the first defendants, an order of nuns, she was sexually abused by a visiting Roman Catholic priest who had been appointed by the second defendant trust, which stood in the place of, and could be equated with, the diocesan bishop .The Court held the Diocesan Trust vicariously liable. After a careful review of a gamut of English Authorities, the UK Supreme Court held the Catholic Institute vicariously liable as follows;

“Living cloistered on the school premises were vulnerable boys. They were triply vulnerable. They were vulnerable because they were children in a school; they were vulnerable because they were virtually prisoners in the school; and they were vulnerable because their personal histories made it even less likely that if they attempted to disclose what was happening to them they would be believed. The brother teachers were placed in the school to care for the educational and religious needs of these pupils. Abusing the boys in their care was diametrically opposed to those objectives but, paradoxically, that very fact was one of the factors that provided the necessary close connection between the abuse and the relationship between the brothers and the Institute that gives rise to vicarious liability on the part of the latter. “

Elsewhere in Canada, the Canadian Supreme Court returned to the theme in John Doe v Bennett [2004] 1 SCR 436. In that case, a Roman Catholic priest had sexually assaulted boys in his parishes. The relevant issue was whether the diocesan Episcopal corporation sole, which was equated with the bishop, was vicariously liable. The court held that “the necessary connection between the employer-created or enhanced risk and the wrong complained of” was established. The Bishop provided the priest with the opportunity to abuse his power, this opportunity being incidental to the functions of a parish priest. The priest’s wrongful acts were strongly related to the psychological intimacy inherent in his role as priest. Finally, in his remote parishes the status of a priest carried with it immense power.

END:
Such approach to fighting off child sex abuses as seen in other climes has never been the case in our clime. No such claim has been pronounced on by the Nigerian Courts. Part of the reasons is the awe in which Africans generally hold their spiritual guardians/leaders. As a result, the victims or their parents would not want such mind-boggling scandals to fester and tarnish the integrity of such religious institutions. This writer, while urging the Legislature to urgently amend the CRA with a view to plugging the identified legislative gap, would advocate that victims of child sex abuse in Nigeria should begin to speak out so that, through well-articulated civil suits, the menace of child sex abuse (which has been acknowledged by the UK Supreme Court as a wide-spreading evil) would be rolled back. As a practical step, this writer is putting his legal services at the disposal of anybody who has been a victim or who knows a victim willing to commence a civil suit to challenge such evil. This offer of my legal services is absolutely FREE and could be directed to this email: [email protected].