Penal Code

It is important to note that under the Penal Code a child who is under the age of 14 years is incapable of giving consent See: Sections 39 (c) and 282 (1) (e) of the Code. See also: Shuaibu Isa Vs Kano State (2016) LPELR – 400 11 (SC). Therefore once it is proved that the accused person had sexual intercourse or unlawful carnal knowledge of a girl under the age of 14 years, he is guilty of rape.

The offence of enticing a married woman under Section 389 of the Penal Code can be established if the following ingredients are proved beyond reasonable doubt by the prosecution. The ingredients are:-
(a) That the woman is a married woman.
(b) That the accused knew or had reasons to believe that she was/is the wife of another man.
(c) That she was at the time of the offence living under the care of her husband or someone else on his behalf.
(d) That the accused
(i) took or (ii) enticed her away from her husband or that other person (iii) concealed or (iv) detained her;
(e) That the intention in doing so was that she might have illicit intercourse with him or with some one.
The prosecution, in order to obtain conviction, must prove all the ingredients mentioned above.

The appellant was charged under Section 389 of the Penal Code. It reads:
"389. Whoever takes or entices away any woman, who is and whom he knows or has reason to believe to be the wife of any other man, from that man or from any person having the care of her on behalf of that man with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.
To succeed the prosecution must prove beyond reasonable doubt that:
(a) the woman was married,
(b) the accused knew or had reason to believe that she was the wife of another man.
(c) she was at the time of the offence living under the care of her husband or someone else on his behalf.