By Amos Aar
THE Makurdi Division of the Federal Court of Appeal has upheld the conviction of Mrs Felicia Ogbuja for her failure to protect 13-year-old Ochanya Ogbanje from being raped by her husband and son.
Little Ochanya had suffered health complications which her medical records state arose from being serially raped allegedly by Mr Andrew Ogbuja, a senior lecturer at the Benue State Polytechnic, Ugbokolo, and his son, Victor, who is now at large.
Ochanya’s health complications led to her admission at the Federal Medical Centre, Makurdi for over two months before she died on October 17, 2018.
Her death sparked national outrage led by several NGOs, human rights and gender activists calling for the arrest of her molesters. Also in the lead of the demand for justice for Ochanya was the Old Girls Association of Federal Government Girls Gboko, where Ochanya was a JSS 2 student before her ailment and eventual death.
While Mr Ogbuja was arrested, arraigned, prosecuted but discharged and acquitted on 28 April, 2022 by the Benue State High Court, Makurdi Division, of raping and causing the death of Ochanya; the Makurdi Division of the Federal High Court, in a separate case on the same day, convicted Ogbuja’s wife (Felicia) for negligence.
Justice Mobolaji Olajuwon had found Mrs Ogbuja guilty of failing to protect the deceased girl from her husband and son.
The National Agency for the Prohibition of Trafficking in Persons (NAPTIP) had in April 2019, charged Mrs Ogbuja with negligence leading to the rape and death of Ochanya.
Determined to upturn her conviction, Mrs Ogbuja appealed the judgement at the Court of Appeal in Makurdi, challenging the lower court’s jurisdiction to entertain the suit amongst other issues.
Delivering judgement on the appeal held via Zoom on Friday, a three-member panel of justices of the appellate court, led by Justice Hassan Muslim, dismissed Mrs Ogbuja’s argument that the charge was unknown to the law upon which she was convicted and sentenced.
The three-member panel of justices unanimously agreed with the judgement of the Federal High Court in Makurdi that Mrs Ogbuja failed in her duty to protect Ochanya from the “sexual exploitation” of her husband and son.
“The conviction endures on appeal once it is shown by the facts on which the appellant is convicted constitute an offence known to law. It does not matter if the conviction is under the wrong section of the law.”
Justice Muslim said Mrs Ogbuja understood the charge and pleaded not guilty to it as she “tailored her defence towards same.”
The panel held that the appellant’s conviction did not occasion a miscarriage of justice, saying: “The offence is the defendant’s omission to take action against the sexual exploitation of Ochanya by her husband and her son.”
According to Justice Muslim; “The crime of omission is an offence that is categorised by a person failing to perform an act that is required, including omitting to take care. It is the neglect to do what the law requires.”
Citing Section 344 of the Criminal Code Act upon which Mrs Ogbuja was convicted and sentenced, Justice Muslim said: “The defendant is in breach of that duty (of care).
“Section 344 of the Criminal Code Act is an appropriate Section of the law which accommodates the offence as charged in count one.
“The law provides that any person who unlawfully does any act or omits to do any act which it is his duty to do…is guilty of a misdemeanour and is liable to imprisonment for six months.”
While reflecting on the pains Ochanya may have passed through, Justice Muslim said Mrs Ogbuja “does not deserve any sympathetic consideration of this court,” and further held that the appellant from the evidence available “had the duty to protect and care for the wellbeing of Ochanya as she (Mrs Ogbuja) was legally responsible for her (Ochanya) while in her custody.”
While further positing that Mrs Ogbuja “omitted to take action against the sexual exploitation of Ochanya by her husband,” Justice Muslim also held that Mrs Ogbuja “knew of the abuse and did nothing to protect the late Ochanya from the several abuse(s) which were brought to her attention.
“The appellant failed to take steps to ensure the wellbeing of Ochanya which will include her not being sexually abused or exploited as she was in the house of the defendant so she could go to school, and would not want anything to jeopardise her schooling, led to the harm suffered by Ochanya.”
According to Justice Muslim, the appellant “deserves more time of imprisonment to deter others of like minds,” noting that the harm Ochanya “suffered includes not only the illness she suffered but also the abuse itself which affected her wellbeing.”
The panel further held that Mrs Ogbuja “allowed such a heinous crime to take place under her watch, even when her own daughter (Winnie Ogbuja) brought to her attention the sexual exploitation of Ochanya.”
Similarly, the panel of Justices dismissed the appellant’s contention challenging the lower court’s jurisdiction to entertain her trial. “Having resolved the sole issue for determination against the appellant, it means that this appeal must fail, it fails and it is hereby dismissed.
“The judgement of the lower court delivered by Hon Justice M.O. Olajuwon on 28 April, 2022, is hereby affirmed. That is my judgement!” Justice Muslim declared.
Before ending his judgement, Justice Muslim lauded the “relentless efforts” of the late Ochanya’s caregiver, Enewa Soo, the International Federation of Women Lawyers and NAPTIP, in championing the course of justice.
“I must commend the relentless efforts made by Ochanya’s caregiver, PW5, the International Federation of Women Lawyers (FIDA) and NAPTIP, without their efforts, this case will not have seen the light of the day. It would have been tagged a family affair.”
The said the appellant and her family members attempted to kill the case as a “family matter” when they approached Mr Ogbanje (the deceased girl’s) father.
The online verdict had Mrs Ogbuja’s lawyer, Abel Onoja and NAPTIP’s counsel, Jennifer Yakusak in attendance.
