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A. L. E. ALAWUSA
V.
LYDIA ADE ODUSOTE
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
6TH DAY OF NOVEMBER, 1941
2PLR/1941/14 (WACA)
OTHER CITATION(S)
2PLR/1941/14 (WACA)
(1941) VII WACA PP. 140 – 141
LEX (1941) – VII WACA PP. 140 – 141
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BEFORE THEIR LORDSHIP:
BUTLER LLOYD, ACTING C.J., NIGERIA
BROOKE, J.
JEFFREYS, J.
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BETWEEN:
A. L. E. ALAWUSA – Appellant
AND
LYDIA ADE ODUSOTE – Respondent
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REPRESENTATION
Sir William Geary — for Appellant
Respondent in person
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
FAMILY LAW — HUSBAND-WIFE RELATIONS:- Principle that a husband cannot be convicted of rape of his wife — Other offences against the person of the wife — Whether a husband can be convicted thereon — Peculiarity to be observed in the review of the evidence against the husband — When applicable
CUSTOMARY LAW — NATIVE CUSTOMS:- Shaving of public hairs under customary law — When undertaken by husband on the person of the wife — Whether chargeable under the Criminal Code
CRIMINAL LAW AND PROCEDURE:- Conviction of a husband for Indecent Assault on wife contrary to section 360 of the Criminal Code — Shaving of public hairs — Peculiar status of husband in relation to wife and implication for evidence required to ground the element of “indecent” — Verdict of guilty of common assault — When will be substituted
CASE SUMMARY
On appeal the Judge upheld a conviction of the accused in the Magistrate’s Court for indecent assault on his wife after amending an obvious clerical error in the statement of offence under section 172(1) of Chapter 20: it was proved that the appellant had shaved the pubic hairs of the complainant whom he had married in accordance with native law and custom.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
That the assault as between husband and wife could not properly be characterised as indecent and a verdict of assault contra. section 351 of the Criminal Code was substituted.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
1. An assault upon a wife is not rendered indecent by circumstances which would render it indecent in the case of another woman. The appellant committed an assault on the wife but as between husband and wife it could not properly be characterized as indecent.
2. The Court thereby substitutes for the conviction of indecent assault contrary to section 360 of the Criminal Code, a verdict of guilty of assault contrary to section 351 of the Criminal Code.
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MAIN JUDGMENT
The following joint judgment was delivered:-
BUTLER LLOYD, ACTING C.J., BROOK AND JEFFREYS, JJ.
The appellant in this case was tried before the Magistrate of Ijebu-Ode on counts charging offences against sections 360 and 353 of the Criminal Code but by an obvious clerical error the statement of offence in each count was worded “Grievous Harm” which is appropriate to the latter only. In the first, as is obvious from the particulars of offence, it should have been “Indecent Assault.”
There was another count of larceny with which we are not concerned. The Magistrate convicted appellant on the count contra. section 360 only.
On appeal to the High Court the learned Judge upheld the conviction but amended the statement of offence to read “Indecent Assault on a female” under section 172(1) of Chapter 21 as we think he had power to do.
The facts proved were that appellant shaved the pubic hairs of the complainant whom he had married in accordance with Native Law and custom and the only point which falls for our decision is whether a conviction of a man for indecent assault on his wife can stand.
Appellant’s counsel has argued that it cannot on the ground that a man cannot be convicted of rape upon his wife and that the greater includes the less. While not agreeing that this argument is conclusive or even logical, since a man can undoubtedly be convicted as an accessory to a rape on his wife and presumably also to an indecent assault upon her, and indecent assault is not as the argument seems to assume a lesser form of rape, we think that there is this much in it that an assault upon a wife is not rendered indecent by circumstances which would render it indecent in the case of another woman.
In the present case the appellant undoubtedly committed an assault the enormity of which a very slight acquaintance with native ideas will suffice to make apparent, but we do not think that as between husband and wife it could properly be characterized as indecent. It is, however, clear that the Magistrate could have found the appellant guilty of a common assault contra. sec. 351 under the provisions of section 58(1) Chapter 20, and we accordingly, in exercise of our power under section 11(2) of the West African Court of Appeal Ordinance substitute for the verdict of guilty of indecent assault contra. sec. 360 a verdict of guilty of assault contra. section 351 of the Criminal assault contra. section 351 of the Criminal Code and pass sentence of six weeks imprisonment with hard labour.
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