The evidence for defilement is the same as in rape except that for defilement it is immaterial whether the act was done with or without the consent of the child. This is the well laid down position of the law, that a girl under the age of 11 is a child and so is not capable to consenting to sex. The court would hold that she did not consent even if she did consent. A child cannot consent to sex, that is the position of the law.
Section 218 supra creates the offence of Defilement of a Girl under the age of 11 years. To succeed the prosecution must prove beyond reasonable doubt:
(a) that the accused/appellant had sex with the child who was under the age of 11 years.
(b) that there was penetration into the vault of the virgina
(c) the evidence of the child must be corroborated.
A person subject to service law is a person in the Armed Forces of Nigeria, i.e. the Army, Navy, Airforce. The appellant is a Corporal in the Nigeria Army with Number 91NA/32/4119. He is subject to service law.
Though carnal knowledge is not defined in section 78 of the Armed Forces Act, once a mans penis penetrates the virgina of a female, no matter how slight the penetration the offence is complete. He is said to have had carnal knowledge of the prosecutrix. See Section 6 of the Criminal code. The appellant had carnal knowledge of the prosecutrix on several occasions.
The appellant was charged under section 78 of the Armed Force Act Cap A 20 Laws of the Federation of Nigeria, 2004. He is accused of having carnal knowledge of Miss Ruth Waziri, a girl under the age of 16.
Section 78 supra states that:
78. Defilement
A person subject to service law under this Act who has carnal knowledge of a girl, being under the age of sixteen years is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding fourteen years or any less punishment provided by this Act.
For the court to be satisfied that the prosecution has proved its case beyond reasonable doubt, the prosecution must establish:
1. that the accused person is a person subject to service Law
2. that the accused person had carnal knowledge of the prosecutrix
3. that the prosecutrix was not 16 years old when the offence was committed.
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